Election Law Cases.docx

1. Election and Suffrage Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-46863

November 18, 1939

IRINEO MOYA, petitioner, vs. AGRIPINO GA. DEL FIERO, respondent. Elpidio Quirino for petitioner. Claro M. Recto for respondent.

LAUREL, J.: This is a petition for review by certiorari of the judgment of the Court of Appeals in the above entitled case declaring the respondent, Agripino Ga. del Fierro, the candidate-elect for the office of mayor of the municipality of Paracale, Province of Camarines Norte, with a majority of three votes over his rival, Irineo Moya. In the general elections held on December 14, 1937, the parties herein were contending candidates for the aforesaid office. After canvass of the returns the municipal council of Paracale, acting as board of canvassers, proclaimed the petitioner as the elected mayor of said municipality with a majority of 102 votes. On December 27, 1937, the respondent field a motion of protest in the Court of First Instance of Camarines Norte, the Court of Appeals, on July 13, 1939 rendered the judgment hereinbefore mentioned which is sought by the petitioner to be reviewed and reversed upon the errors alleged to have been committed by the Court of Appeals: 1. In admitting and counting in favor of the respondent, 8 ballots either inadvertently or contrary to the controlling decisions of this Honorable Court. 2. In admitting and counting in favor of the respondent, 3 ballots marked "R. del Fierro." 3. In admitting and counting in favor of the respondent, 7 ballots marked "Rufino del Firro." 4. In admitting and counting in favor of the respondent, 72 ballots marked "P. del Fierro." Taking up seriatim the alleged errors, we come to the first assignment involving the eight (8) ballots now to be mentioned. (1) With reference to ballot Exhibit F-175 in precinct No. 2, alleged to have been inadvertently admitted in favor of the respondent, such inadvertence raises a question of fact which could have been corrected by the Court of Appeals and which could we are not in a position to determine in this proceeding for review by certiorari. Upon the other hand, if the error attributed to the Court of Appeals consisted in having admitted ballot Exhibit F-175 in precinct No. 2 instead of the ballot bearing the same number corresponding to precinct No. 1, and this latter ballot clearly appears admissible for the respondent because the name written on the space for mayor is "Primo del Fierro" or "Pimo de Fierro", the error is technical and deserves but scanty consideration. (2) Ballot Exhibit F26 in precinct No. 3 was erroneously admitted for the respondent by the Court of Appeals, the name written on the space for mayor being "G.T. Krandes." It is true that on the fourth line for the councilor "Alcalde Pinong del Fierro": appears; but the intention of the elector is rendered vague and incapable

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of ascertaining and the ballot was improperly counted for the respondent. As to this ballot, the contention of the petitioner is sustained (3) Ballot Exhibit F-77 in precinct No. 2 should also have been rejected by the Court of Appeals. The ballot bears the distinguishing mark "O. K." placed after the name "M. Lopis" written on space for vice-mayor. The contention of the petitioner in this respect is likewise sustained. (4) Ballot Exhibit F-9 in precinct No. 2 was properly admitted for respondent. On this ballot the elector wrote within the space for mayor the name of Regino Guinto, a candidate for the provincial board and wrote the respondent's name immediately below the line for mayor but immediately above the name "M. Lopez" voted by him for vice-mayor. The intention of the elector to vote for the respondent for the office of the mayor is clear under the circumstances. (5) Ballot F-131 in precinct No. 1 was also properly counted for the respondent. On this ballot the elector wrote the respondent's name on the space for vice-mayor, but, apparently realizing his mistake, he placed an arrow connecting the name of the respondent to the word "Mayor" (Alcalde) printed on the left side of the ballot. The intention of the elector to vote for the respondent for the office of mayor is thus evident, in the absence of proof showing that the ballot had been tampered with. (6) Ballot F-7 in precinct No. 5 is admissible for the respondent and the Court of Appeals committed no error in so adjudicating. Although the name of the respondent is written on the first space for member of the provincial board, said name is followed in the next line by "Bice" Culastico Palma, which latter name is followed in the next line by word "consehal" and the name of a candidate for this position. The intention of the elector to vote for the respondent for the office of mayor being manifest, the objection of the petitioner to the admission of this ballot is overruled. (7) Ballot F-1 in precinct No. 2 is valid for the respondent. On this ballot the Christian name of the respondent was written on the second space for member of the provincial board, but his surname was written on the proper space for mayor with no other accompanying name or names. The intention of the elector being manifest, the same should be given effect in favor of the respondent. (8) Ballot F-44 in precinct No. 2 wherein "Agripino F. Garcia" appears written on the proper space, is valid for the respondent. In his certificate of candidacy the respondent gave his name as "Agripino Ga. del Fierro." The conclusion of the trial court, upheld by the Court of Appeals, that the letter "F" stands for "Fierro" and "Garcia" for the contraction "Ga." is not without justification and, by liberal construction, the ballot in question was properly admitted for the respondent. The second error assigned by the petitioner refers to three ballots, namely, Exhibit F-119 in precinct No. 1 Exhibit F-24 in precinct No. 2, and Exhibit F-6 in precinct No. 4. These three ballots appear to be among the 75 ballots found by the Court of Appeals as acceptable for the respondent on the ground that the initial letter "P" stands for "Pino" in "Pino del Fierro" which is a name mentioned in the certificate of candidacy of the respondent. The petitioner contends that the initial "R" and not "P". Even if we could reverse this finding, we do not feel justified in doing so after examining the photostatic copies of these ballots attached to the herein petition for certiorari. The second assignment of error is accordingly overruled. Upon the third assignment of error, the petitioner questions the correctness of the judgment of the Court of Appeals in adjudicating to the respondent the seven ballots wherein "Rufino del Fierro" was voted for the office of mayor. We are of the opinion that the position taken by the Court of Appeals is correct. There was no other candidate for the office of mayor with the name of "Rufino" or similar name and, as the respondent was districtly identified by his surname on these ballots, the intention of the voters in preparing the same was undoubtedly to vote for the respondent of the office for which he was a candidate.lawphi1.net The fourth assignment of error deals with the 72 ballots wherein "P. del Fierro" was voted for the office of mayor, and it is the contention of the petitioner that said ballots should not have been counted by the Court of Appeals in favor of the respondent. For the identical reason indicated under the discussion

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of petitioner's second assignment of error, namely, that "P" stands for "Pino" in "Pino del Fierro" which is a name mentioned in the certificate of candidacy of the respondent, we hold that there was no error in the action of the Court of Appeals in awarding the said ballots to the respondent. With the exception of ballot marked as Exhibit F-26 in precinct No. 3 and ballot marked as Exhibit F77 in precinct No. 2, we are inclined to accept the rest of the disputed ballots for the respondent not only for the specific reasons already given but also and principally for the more fundamental reason now to be stated. As long as popular government is an end to be achieved and safeguarded, suffrage, whatever may be the modality and form devised, must continue to be the manes by which the great reservoir of power must be emptied into the receptacular agencies wrought by the people through their Constitution in the interest of good government and the common weal. Republicanism, in so far as it implies the adoption of a representative type of government, necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the established authority. He has a voice in his Government and whenever called upon to act in justifiable cases, to give it efficacy and not to stifle it. This, fundamentally, is the reason for the rule that ballots should be read and appreciated, if not with utmost, with reasonable, liberality. Counsel for both parties have called our attention to the different and divergent rules laid down by this Court on the appreciation of ballots. It will serve no good and useful purpose for us to engage in the task of reconciliation or harmonization of these rules, although this may perhaps be undertaken, as no two cases will be found to be exactly the same in factual or legal environment. It is sufficient to observe, however, in this connection that whatever might have been said in cases heretofore decided, no technical rule or rules should be permitted to defeat the intention of the voter, if that intention is discoverable from the ballot itself, not from evidence aliunde. This rule of interpretation goes to the very root of the system. Rationally, also, this must be the justification for the suggested liberalization of the rules on appreciation of ballots which are now incorporated in section 144 of the Election Code (Commonwealth Act No. 357). It results that, crediting the petitioner with the two ballots herein held to have been erroneously admitted by the Court of Appeals for the respondent, the latter still wins by one vote. In view whereof it becomes unnecessary to consider the counter-assignment of errors of the respondent. With the modification of the decision of the Court of Appeals, the petition for the writ of certiorari is hereby dismissed, without pronouncement regarding costs. Avanceña, C.J., Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-29333

February 27, 1969

MARIANO LL. vs. CAMILO P. CABILI, protegee-appellee.

BADELLES,

protestant-appellant,

-------------------------G.R. No. L-29334

February 27, 1969

BONIFACIO P. LEGASPI and CECILlO T. BARAZON protestants-appellants, vs. FELIX Z. ACTUB, PROVIDENCIO P. ABRAGAN, MANUEL F. CELDRAN, CASIMERO P. CABIGON and BENITO ONG, protestees-appellees. Bonifacio P. Legaspi for and in his own behalf. Camilo P. Cabili. Gerardo B. Padilla and Ignacio Español and Voltaire I. Roviro for protesteesappellees. FERNANDO, J.: Two election protests against the duly proclaimed Mayor and Councilors of Iligan City, after the Nov. 14, 1967 elections, based on the allegations of flagrant violations of certain mandatory provisions of the Election Code, to be more specifically set forth hereafter, were dismissed in a single order by the Court of First Instance of Lanao del Norte, the Honorable Teodulo C. Tandayag presiding. The cases are now before us on appeal. In one of them, 1 the election of Honorable Camilo P. Cabili to the Office of City Mayor of Iligan City, was contested by protestant, now appellant, Mariano Badelles. In the other, 2 the protestants are the now appellants, Bonifacio P. Legaspi and Cecilia T. Barazon who along with the five protestees 3 were among those who were registered candidates voted for in such election for councilors in the City of Iligan, with the protestees being credited with the five highest number of votes, with protestants Legaspi and Barazon obtaining sixth and seventh places, respectively. In such order of dismissal, it was admitted that while irregularities as well as misconduct on the part of election officers were alleged in the election protests filed, there was however an absence of an allegation that they would change the result of the election in favor of the protestants and against the protestees, that such irregularities would destroy the secrecy and integrity of the ballots cast, or that the protestees knew of or participated in the commission thereof. For the lower court then, the lack of a cause of action was rather evident. Hence the order of dismissal of March 23, 1968, which was sought to be fortified by the invocation of the doctrines that voters should not be deprived of their right to vote occasioned by the failure of the election officials to comply with the formal prerequisites to the exercise of the right of suffrage and that the rules and regulations for the conduct of elections while mandatory before the voting should be

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considered directory thereafter. The validity of such order of dismissal is now to be inquired into by us in this appeal. In the petition of protestant Badelles, dated December 8, 1967, and marked as received the next day by the Clerk of Court of the Court of First Instance of Lanao del Norte, 15th Judicial District, it was stated that both he and protestee Camilo P. Cabili were the duly registered candidates for the Office of City Mayor of Iligan City, both having filed their respective certificates of candidacy in accordance with law and as such candidates voted for in the November 14, 1967 election. It was then alleged that the Board of Canvassers, on November 25, 1967, proclaimed as elected protestee for having obtained 11,310 votes while protestant was credited with 8,966 votes. Protestant would impugn the election of Cabili on the ground that there were "flagrant violation of mandatory provisions of law relating to or governing elections ...." in that more than 200 voters were registered per precinct contrary to the provision limiting such number of 200 only and that no publication of the list of voters for each precinct was made up to the election day itself, enabling persons who under the law could not vote being allowed to do so. As a result of such alleged "flagrant violations of the laws relation to or governing elections" around 8,300 individuals were allowed to vote illegally. It was likewise asserted that not less than 8,000 qualified voters were unable to exercise their right of suffrage in view of their failure, without any fault on their part, to have the proper identification cards or the non-listing of their names in the list of voters. It was stated further that even in the case of those individuals provided with identification cards with their names included in the list of voters, they could not avail themselves of their right of suffrage as their applications for registration could not be found. Mention was also made of the fact that the final lists of voters and the applications for registration were delivered to their respective precincts late on election day itself thus preventing them from voting. Moreover, confusion, so it was alleged, was caused by the excessive number of voters being listed and many having been assigned to precincts other than the correct ones. What was thus objected to is the fact that illegal votes were cast by those not qualified to do so, numbering 8,300 or more and that an approximately equal number, who were duly registered with the Commission on Elections, Iligan City, were unable to vote due to the above circumstances. The proclamation then could not have reflected the true will of the electorate as to who was the mayor elected, as the majority of protestee Cabili over the protestant consisted of only 2,344 votes. The prayer was among others for the proclamation of protestee as well as other candidates for elective positions in the City of Iligan being set aside and declared null and void, protestant pleading further that he be granted other such relief as may be warranted in law and equity. The protest of the candidates for councilor Legaspi and Barazon in the other case against protestees 4 was in substance similarly worded. The prayer was for the setting aside and declaring null and void the proclamation of protestees with protestants seeking such other relief which should be theirs according to law and to equity. In the first case, protestee Cabili moved to dismiss the petition on the following grounds: "1. That the protest was filed beyond the reglementary period allowed by the Revised Election Code; 2. That [the lower court] has no jurisdiction over the subject matter of the present case, the Commission on Elections being the proper body to hear the same; 3. That the complaint states no cause of action." 5 This very same grounds were relied upon in a motion to dismiss by protestees Actub and Cabigon, filed in the other suit. As above noted, in a single order of March 23, 1968, the two above election protests were dismissed, the lower court being of the opinion that neither petition alleged a cause of action "to justify [it] to try the same." The first ground of the motion to dismiss to the effect that the protests in both cases were

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filed beyond the reglementary period was rejected. The claim as to lack of jurisdiction was likewise held to be without merit. The single order of dismissal in both cases as indicated was based on the lack of a cause of action. The reasoning followed by the lower court in reaching the above conclusion that there was no cause of action, proceeded along these lines: "Mere irregularities or misconduct on the part of election officers which do not tend to affect the result of the elections are not of themselves either ground for contest or for proper matters of inquiry... There is no allegation in the protest that the alleged irregularities committed by the election officers would tend to change the result of the election in favor of the protestants and against the protestees. There is no allegation in the petition that the 8,000 voters who failed to vote were all voters of protestants and the 8,300 illegal voters who voted were for the protestees. There is, therefore, no legal and practical justification for the court to inquire into the irregularities committed by the election officials, as alleged in the petition, for it would not give any benefit in favor of the protestants to the end that they will be declared the duly elected mayor and councilors, respectively, of this City."6 It was further stated in such order of dismissal: "There is no allegation in the petition that the irregularities committed by the election officials have destroyed the secrecy and integrity of the ballots cast. There is no allegation in the petition that the non-compliance of the election officials of the provisions of the election laws regarding the registration of voters were intentional on their part for the purpose of committing frauds for the benefit of the protestees. There is no allegation in the petition that because of the alleged irregularities committed by the election officials in not following the provisions of the election laws regarding the registration of voters and the distribution of the precincts, that all the votes cast during said elections are illegal, nor is there an allegation in the protests that the irregularities committed by the election officials would affect the election in favor of the protestees." 7 A greater regard for the cause of accuracy ought to have admonished the lower court from asserting in an uncompromising tone the absence of an allegation that the protestants in both cases failed to allege that if the facts pleaded by them were proved the result would not have been different. It is true the complaints could have been more explicitly worded, but as they stood, the absence of such a claim could not be so confidently asserted. To repeat, both protests were dismissed. We do not discount a certain degree of plausibility attaching to the line of reasoning thus pursued by the lower court. We are not unaware of the undeniable fact that both petitions were not distinguished by skill in their drafting or precision in their terminology. Nonetheless the seriousness and gravity of the imputed failure to have the elections conducted freely and honestly, with such irregularities alleged, give rise to doubts, rational and honest, as to who were the duly elected officials. Such allegations, it is to be stressed, would have to be accepted at their face value for the purpose of determining whether there is a cause of action, a motion to dismiss amounting to a hypothetical admission of facts thus pleaded. We cannot in law and in conscience then sustain the order of dismissal. Without the lower court having so intended, the dismissal would amount to judicial abnegation of a sworn duty to inquire into and pass upon in an appropriate proceeding allegations of misconduct and misdeeds of such character. Accordingly, we reverse. Abes v. Commission on Elections 8 points the way, but the lower court was apparently impervious to its teaching. It may not be controlling, but it furnishes more than a hint. It would seem, though, that for the court below, its message did not ring out loud and clear. The opinion in the Abes case, penned by Justice Sanchez, starts thus: "Petitioner's cry for relief, so their petition avers, is planted upon the constitutional mandate of free, orderly, and honest elections.

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Specifically, they list a number of repressible acts." Among those mentioned were that blank official registration forms were taken from the office of the Quezon City Comelec Register several weeks before election day, November 14, 1967; that active campaigning within the polling places by Nacionalista leaders or sympathizers of Nacionalista candidates were allowed; that voters were permitted to vote on mere mimeographed notices of certain Nacionalista candidates; that voters were compelled to fill their official ballots on open tables, desks and in many precincts outside the polling places; that thousands of voters sympathetic to the Nacionalista candidates were allowed to vote beyond the hours for voting allowed by law; that identification cards were delivered by partisan leaders of respondents Nacionalista candidates, and those who did not signify their preference for Nacionalista candidates were not given such cards; that the precinct books of voters were not sealed within the deadline fixed by law; and that the resulting effect of irregularities was to prevent full fifty-one per cent of the registered voters from voting. One of the issues raised on the above facts is whether or not the Commission on Elections could annul the aforesaid election in Quezon City on the above allegations of fraud, terrorism and other illegal practices committed before and during the election. The petition did not prosper; it was dismissed. The remedy, we held, lay not with the Commission on Elections but with the courts of justice in an election protest. In the language of Justice Sanchez: "The boundaries of the forbidden area into which Comelec may not tread are also marked by jurisprudence. That Comelec is not the proper forum to seek annulment of an election based on terrorism, frauds and other illegal practices, is a principle emphasized in decisions of this Court." For as announced in Nacionalista Party v. Commission on Elections, 9 assuming that there be a failure to conduct an election in a free, orderly and honest manner, "the duty to cure or remedy the resulting evil" did not rest with the Commission on Elections but in "some other agencies of the Government." More specifically, with reference to provincial and municipal officials, election contests "are entrusted to the courts." Then came this express affirmation: "The power to decide election contests necessarily includes the power to determine the validity or nullity of the votes questioned by either of the contestants." . As so emphatically observed in the Abes opinion, "there has been neither deviation nor retreat from the foregoing pronouncement." After which came the following: "The ratiocination advanced that there was failure of election due to rampancy of terrorism, frauds, and other irregularities, before and during elections, such that allegedly about 51% of the registered voters were not able to vote, will not carry the day for petitioners. For, in the first place, this is grounded upon bare assertions. Respondents contest the correctness thereof. And in the answer of respondents Amoranto, Mathay and others, they aver that out of 162,457 registered voters in Quezon City, 100,382 voters actually cast their votes — about 62% of the registered voters. But above all, as pointed out in City Board of Canvassers vs. Moscoso, [the] nullity of an election for municipal officials should be determined in a petition contesting the election of municipal officers-elect to be filed before the Court of First Instance." Why an election protest is more fitly and appropriately the procedure for determining whether irregularities or serious violations of the electoral law vitiated the conduct of elections was clearly and succinctly explained in the Moscoso decision above cited, the opinion coming from Justice Makalintal. 10 Thus: "The question of whether or not there had been terrorism, vote-buying and other irregularities in the 1959 elections in Tacloban City should be ventilated in a regular election protest, pursuant to section 174 of the Election Code, and not in a petition to enjoin the city board of canvassers from canvassing the election returns and proclaiming the winning candidates for municipal offices." It would follow then that if the grievance relied upon is the widespread irregularities and the flagrant violations of the election law, the proper remedy is the one availed of here, the protest.

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That such should be the case should occasion no surprise. Time and time again, 11 we have stressed the importance of preserving inviolate the right of suffrage. If that right be disregarded or frittered away, then popular sovereignty becomes a myth. As Justice Laurel correctly pointed out: "As long as popular government is an end to be achieved and safeguarded, suffrage, whatever may be the modality and form devised, must continue to be the means by which the great reservoir of power must be emptied into the receptacular agencies wrought by the people through their Constitution in the interest of good government and the common weal. Republicanism, in so far as it implies the adoption of a representative type of government, necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the established authority." 12 A republic then to be true to its name requires that the government rests on the consent of the people, consent freely given, intelligently arrived at, honestly recorded, and thereafter counted. Only thus can they be really looked upon as the ultimate sources of established authority. It is their undeniable right to have officials of their unfettered choice. The election law has no justification except as a means for assuring a free, honest and orderly expression of their views. It is of the essence that corruption and irregularities should not be permitted to taint the electoral process. It may not always be thus unfortunately. That should be the ideal however. If there be a failure to observe the mandates of the Election Code, the aggrieved parties should not be left remediless. Under the law as it stands, it is precisely an election protest that fitly serves that purpose.lawphi1.nêt It was sought to be thus utilized in these two cases, perhaps in a rather awkward and far from entirely satisfactory manner. Than itself is no reason for the courts to slam the door against any opportunity for redress. Yet, that is what would happen if the order of dismissal complained of were not set aside. Hence the inevitability of its reversal. The scope of our decision must not be misinterpreted however. All that it directs is that the protetees in both cases be required to answer. Thereafter, if, as is not unlikely, there be a denial of the serious imputations made as to the alleged irregularities, the lower court could properly inquire into what actually transpired. After the facts are thus ascertained in accordance with the accepted procedural rules, then the appropriate law could be applied. It must be clearly emphasized that we do not at this stage intimate any view as to the merit, or lack of it, of either protest. That would be premature to say the least. All we do is to set aside the order of dismissal. WHEREFORE, the order of dismissal of March 23, 1968, is reversed and the two cases remanded to the lower court for proceeding and trial in accordance with this opinion and the law. Without costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Capistrano and Teehankee, JJ., concur.

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Separate Opinions

BARREDO, J., concurring: I concur whole-heartedly in everything contained in the ably written opinion of our distinguished colleague, Mr. Justice Fernando, including, of course, the disposition he makes therein of these cases before Us. It may not be amiss, nonetheless, to add a few words which I consider appropriate, in the light of my experience in handling some election cases before my appointment as Solicitor General. The thing that has struck me most in these two cases, both denominated as election protests, is that the prayers of the two petitions therein are identical in that they do not ask for the seating of the petitioners, who call themselves protestants, in the places of the protestees-respondents. What they ask in the main is that "the proclamation of the protegees as duly elected (mayor and councilors) be set aside and declared null and void". This sole principal prayer was precisely what gave appellees in both cases cause to contend that (1) the Court of First Instance of Lanao del Sur had no jurisdiction over the subject matter, it being allegedly the Commission on Elections that has such jurisdiction, and (2) neither of the petitions state any cause of action. Of course, the trial court properly overruled the first ground. It is, however, best for all concerned that the observations and arguments adduced by the trial judge in disposing of the second ground are placed in proper light. Ruling on the first ground above-stated, His Honor held thus: Mere irregularities or misconduct on the part of election officers which do not tend to affect the result of the elections are not of themselves either ground for contest or for proper matters of inquiry... There is no allegation in the protest that the alleged irregularities committed by the election officers would tend to change the result of the election in favor of the protestants and against the protestees. There is no allegation in the petition that the 8,000 voters who failed to vote were all voters of protestants and the 8,300 illegal voters who voted were for the protetees. There is, therefore, no legal and practical justification for the court to inquire into the irregularities committed by the election officials, as alleged in the petition, for it would not give any benefit in favor of the protestants to the end that they will be declared the duly elected mayor and councilors, respectively, of this City. The failure of election of officers to obey the mandatory provisions of a statute relating to the conduct of the election and designed to secure the secrecy and integrity of the ballot may so taint the votes with irregularity as to cause the rejection of the entire votes of the district. It should be remembered, however, that all statutes tending to limit the citizen in the exercise of the right of suffrage are to be construed liberally in his favor, and that the courts are loath to disfranchise voters who are wholly innocent of wrongdoing. As a consequence, it is a firmly established general rule that voters will not be rejected, even though election officers fail to comply with the directory provisions of a statute, if there is no fraud or other irregularity and failure to comply is unintentional; nor is it material in this connection that the failure of the election officers to perform their duty subjects them to penalties. Likewise, the courts will not permit the will of the voters to be defeated by fraud on the part of election officers if it is possible to avoid such a result. In short, a fair election and an honest return should be considered as paramount in importance to minor requirements which prescribe the formal steps to reach that end, and the law should be so construed as to remedy the evils against which its provisions are directed and at the same time not to disfranchise voters further than is necessary to attain that object. In case of a violation of the law on the part of an election officer, punishment may be provided therefor, and in this way the law can be rendered effectual without going to the extent of depriving a voter of his right to have his vote counted in consequence of such

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violation. It may, therefore, be stated as a general rule that if ballots are cast by voters who are, at the time, qualified to cast them and who have done all on their part that the law requires of voters to make their voting effective, an erroneous or even unlawful handling of the ballots by the election officers, charged with such responsibility will not be held to disfranchise such voters by throwing out their votes on account of erroneous procedure had sorely by the election officers, provided the votes are legal votes in their inception and are still capable of being given proper effect as such. Nor will an election be set aside because of regularities on the part of the election officials unless it appears that such irregularities affect the results. (18 Am. Jur. Sec. 225, pp. 331-332, cited on pp. 621-622, Revised Election Code by Francisco). There is no allegation in the petition that the irregularities committed by the election officials have destroyed the secrecy and integrity of the ballots cast. There is no allegation in the petition that the non-compliance of the election officials of the provisions of the election laws regarding the registration of voters were intentional on their part for the purpose of committing frauds for the benefit of the protestees. There is no allegation in the petition that because of the alleged irregularities committed by the election officials in not following the provisions of the election laws regarding the registration of voters and the distribution of the precincts, that all the votes cast during said elections are illegal, nor is there an allegation in the protests that the irregularities committed by the election officials would affect the election in favor of protestees. A misconduct or irregularity committed by an election official is not a sufficient ground to annul the votes cast in the precincts where the person elected neither knew of nor participated in the misconduct and it is not shown that any elector who voted or the persons elected either participated in such misconduct. (18 Am. Jur. Sec. 228, p. 333, cited on page 622, Revised Election Code by Francisco). While this ruling is, on the whole, correct, His Honor failed to emphasize that the cases before him were precisely ones for the annulment and setting aside of the election for Mayor and Councilors in the City of Iligan and that, therefore, the only question that should be resolved is whether or not the facts alleged in the petitions in question constitute sufficient grounds for such relief. Instead, the trial court made as may be seen above, a long discourse on the thesis that "the purpose of an election contest is to correct the canvass," and that "the general rule is that whatever may be the cause of an election contest, the true gravamen of the case is to determine who receives the highest number of votes, etc." (pp. 5-8, Order in question) and then held that there was no allegation in both petitions that "would give any benefit in favor of the protestants to the end that they will be declared the duly elected mayor and councilors, respectively, of this City" ergo, the said petitions do not state any cause of action. More specifically, the trial court looked in vain for allegations to the effect that "the alleged irregularities committed by the elections in favor of the protestants and against the protestees." (p. 7, id.) For example, His Honor reasoned out that "there is no allegation ... that the 8,000 voters who failed to vote were all voters of protestants and the 8,300 illegal voters who voted were for the protetees." (id.). I am afraid that such discourse, if quite impressive as an exposition of considerable learning in election law matters, is rather irrelevant. I believe that what should be emphasized in these cases is that ruling in Our decision to the effect that in an election protest, (otherwise entitled at times, petition or complaint or motion of protest) it is not necessary to allege that the true results of the election in question would be in favor of protestant and against protestee on the basis of the legal votes, or that the proclaimed result would be changed if the facts alleged are proven, when the sole ground of protest and the only purpose of the protestant is to have the whole election in a precinct or municipality annulled and set aside. Indeed, as pointed out in the brief of appellants:

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In the case G.R. No. L-29333, the prayer is for the annulment of the proclamation of protestee-appellee Camilo P. Cabili and of the local elections held in Iligan City on November 14, 1967, while in case G.R. No. L-29334, the prayer is for the annulment of the proclamation of protestee-appellees Felix Z. Actub et al. and of the local elections held in Iligan City on November 14, 1967. Section 177 of the Revised Election Code provides: SEC. 177. Decision of the Contest. — The court shall decide the protest ... and shall declare who among the parties has been elected, or in the proper case, that none of them has been legally elected.... Under the above-quoted provision of law, the courts are authorized to declare that none of the candidates has been legally elected, which in effect would mean that the elections are annulled. If it were not the intention of the lawmaker not to authorize the courts to annul an election, such authority would not have been provided in Section 177 of the Revised Election Code quoted above. Francisco, in his book How to Try Election Cases, 1952 Edition, p. 82, citing as authorities the decisions of this Honorable Court in Bustos vs. Moir and Fajardo 35 Phil. 16; and Manalo vs. Sevilla, 24 Phil. 609, states: The court is authorized, in a proper case, not only to recount the ballots and reject those which it considers illegal and accept those which it considers valid but it is also authorized, in a proper case, to annul the election completely. It is therefore clear that the trial court erred in holding that the purpose of the protestants in filing these protest is not in accord with the purpose of the Revised Election Code in allowing a defeated candidate to file an election protest. In other words, I like to make it very clear that an election protest may be filed not only for the purpose of having the protestant declared elected, but even for the purpose alone of having the election annulled. Otherwise stated, protestants may come to court, not necessarily to win an election, but even if solely to have the court declare that no one has won because the election is void and that it is obvious and pure common sense that in the latter case, the protestant does not have to allege the probability of his being the real victor, for in such a case, his prayer precisely is — that it be declared, using the language of the law, "that none of them has been legally elected." Surely, the following ruling of the trial court: An election contest is a summary proceeding the object of which is to expedite the settlement of the controversy between candidates as to who received the majority of the legal ballots (Gardiner vs. Romulo, 26 Phil. 522, 524). The purpose of an election contest is to correct the canvass of which the proclamation is a public manifestation and the power granted by law to the court must agree with and be adequate to such an object. Hence, the court can directly declare which candidate is to be elected leaving the canvass made by the Board null and void, and the candidate so declared elected may assume position of the office (Aquino vs. Calebia & Sahagun, 55 Phil. 984). It being the policy of the law to give effect to elections, the general rule is that whatever may be the cause of an election contest, the true gravamen of the case is to determine who receives the highest number of votes (20 C.J. 217). 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. (Ibasco vs. Ilao, G.R. No. L-17512, December 29, 1960). Hence, only candidates have the right to file an election protest. (Gil Hermanos vs. Hord, 10 Phil. 217).

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From the foregoing authorities, it could be concluded that the purpose of the election law to allow a candidate to file an election protest is for the court to determine whether the protestant or the protestee is the winner of the election under protest. In the present case, the object of the protestants in filing their protests based on the prayer of their petitions is not to declare them the duly elected mayor and councilors, respectively, of this City but merely to declare null and void the proclamation and election of the protestees as well as the elections held in Iligan City of November 14, 1967. The purpose, therefore of the protestants in filing these protests is not in accord with the purpose of the Revised Election Code in allowing a defeated candidate to file an election protest. must be emphatically denounced as a misreading by His Honor of the real import of the authorities cited by Him. Such proposition represents the most narrow concept of the judicial remedies in matters of election. No single precedent in extant jurisprudence whether here or in any other country can be found to support it. I am equally confident that no thesis in any of the existing legal publications can be referred to as upholding such an illogical idea. To sanction such a ruling is to kill almost entirely all hopes for a clean, orderly and honest suffrage in this country, which the Commission on Elections alone may not be able to achieve in all possible cases. Indeed, as pointed out by appellants the trial court would have been right if it had only adhered to the decisions already rendered by this Court on the subject, cited by said appellants in their brief. The real issue then in these cases is whether or not the facts alleged in the respective petitions of appellants constitute sufficient ground or grounds for annulment of the election of Mayor and Councilors in Iligan City, held in November, 1967. On this score, it has to be admitted that, indeed, the petitions of appellants which appear to have been prepared by a single counsel are not as accurately and precisely worded as to fit exactly into the pattern that may perhaps be most ideal in cases of this nature, but I cannot go along with His Honor's ruling that the allegations in said petitions are legally inadequate to serve as a basis for the relief of annulment of the election therein prayed for. His Honor seemed to be more concerned with what he considered the need for direct averments that the irregularities and violations of the election law alleged by appellants resulted in the destruction of the "secrecy and integrity of the ballot cast," that "all the votes cast in said elections are illegal" and that "the irregularities committed by the election officials would affect the election in favor of the protestees." (p. 8, id.) I feel that His Honor was asking too much and unnecessarily because, as they appear to me, these allegations as well as the others His Honor considered as indispensably required, are more in the nature of legal conclusions, not supposed to be averred in the pleadings, rather than statements of ultimate facts. The truth of the matter is that, viewed as a whole, the petitions in question sufficiently lead to the conclusion that what appellants are complaining about is that the elections held in Iligan City in November, 1967 were characterized by general and specific circumstances, that leave rational doubt as to whether or not the true will of the people of said City could be reflected in the proclaimed results. In the more polished and inimitable language of Mr. Justice Fernando, "... the seriousness and gravity of the imputed failure to have the elections conducted freely and honestly, with such irregularities alleged, give rise to doubts, rational and honest, as to who were the duly elected officials". It is my considered opinion that while it is truly desirable that election protests should be discouraged where they have hardly any basis in fact or in law, the earlier to free from doubt the title to their respective offices of those chosen to direct the affairs of our government, whether national or local, thereby giving them the peace of mind and freedom of action gravely needed in the formulation of policies and the implementation thereof, courts should also be careful in seeing to it that their doors are not untimely shut to complaints regarding the commission of electoral frauds, irregularities and illegalities, the most despicable banes of popular suffrage, which though unhappily worded are fairly indicative of a situation wherein the will of the electorate has not been freely and clearly expressed.

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To my mind, the rule foIlowed in an unbroken line of decisions of this Court, to the effect that the commission of irregularities by election officials, no matter how serious, and the actual discovery of frauds and violations of law by either candidates or voters, are not in themselves sufficient to cause the annulment of an election unless so expressly provided by law, or that the frauds, illegalities and irregularities are so rampant and diffusive as to place the result of such election in grave doubt, is one that governs more the rendition of judgments in election cases and the evaluation of the circumstances surrounding the elections in question, as portrayed in the evidence already presented before the court, rather than as a strict criterion for determining whether a complaint or petition or motion of protest sufficiently states a cause of action for annulment. Respecting contrary opinion others may entertain on the matter, I regard it as a sound rule that pleadings in election cases, at least, should not be subjected to such minute examination as should be done to facts duly established after proper hearing, if only because facts are unerring manifestations of the truth, while allegations in pleadings often suffer from the common flaws in the means of human expressions as well as from the usual imperfection of human language. If words are but children of thoughts, parents and offsprings not always, as among men and animals, look exactly alike. Pleadings in such cases must, therefore, be read with more liberality so as to make it difficult, if not impossible for grievances against the suppression in one form or another of the expression of the popular will, well-grounded in fact, may not be thrown out merely because of lack of skill and precision in the formulation of the corresponding protests. More importance should be given to the substantial matters sufficiently appearing in such pleadings as intended to be brought to the court for a remedy, than to the form, at times, ambiguous and often ungrammatically phrased, in which they are expressed. In any event, in case of doubt as to which should be done, such doubt must be resolved in giving due course to the protest, unless it is manifestly evident that the same has been filed for other than legitimate purposes. As already indicated, my vote is for the reversal of the appealed order sustaining the motion to dismiss filed by appellees in the court below, because I agree with the decision herein of Mr. Justice Fernando that there are enough indications, within the four corners of the questioned petitions, of irregularities and illegalities which, if proven, may result in the annulment of the elections prayed for by appellants.

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DISSENTING OPINION PUNO, J.:

The case at bar transcends the political fortunes of respondent Senator Gregorio B. Honasan. At issue is the right of the people to elect their representatives on the basis and only on the basis of an informed judgment. The issue strikes at the heart of democracy and representative government for without this right, the sovereignty of the people is a mere chimera and the rule of the majority will be no more than mobocracy. To clarify and sharpen the issue, 1 shall first unfurl the facts. I. Facts The facts are undisputed. In February 2001, a Senate seat for a term expiring on June 30, 2004 was vacated with the appointment of then Senator Teofisto Guingona, Jr. as Vice-President of the Philippines. The Senate adopted Resolution No. 84 certifying the existence of a vacancy in the Senate and calling the Commission on Elections (COMELEC) to fill up such vacancy through election to be held simultaneously with the regular election on May 14, 2001, and the senatorial candidate garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of former Senator Teofisto T. Guingona, Jr. In the deliberations of the Senate on the resolution, the body agreed that the procedure it adopted for determining the winner in the special election was for the guidance and implementation of the COMELEC. The COMELEC had no discretion to alter the procedure. Nobody filed a certificate of candidacy to fill the position of senator to serve the unexpired threeyear term in the special election. All the senatorial candidates filed the certificates of candidacy for the twelve regular Senate seats to be vacated on June 30, 2001 with a six-year term expiring on June 30, 2007. COMELEC distributed nationwide official documents such as the Voter Information Sheet, List of Candidates and Sample Ballot. The List of Candidates did not indicate a separate list of candidates for the special election. The Sample Ballot and the official ballots did not provide two different categories of Senate seats to be voted, namely the twelve regular six-year term seats and the single three-year term seat. Nor did the ballots provide a separate space for the candidate to be voted in the special election and instead provided thirteen spaces for thirteen senatorial seats. Without any COMELEC resolution or notice on the time, place and manner of conduct of the special election, the special election for senator was held on the scheduled May 14, 2001 regular elections. A single canvass of votes for a single list of senatorial candidates was done. On June 5, 2001, respondent COMELEC promulgated COMELEC Resolution No. NBC01-005, the dispositive portion of which reads, viz: NOW, THEREFORE, by virtue of the powers vested in it under the Constitution, Omnibus Election Code and other election laws, the Commission on Elections sitting En Banc as the National Board of Canvassers hereby proclaims the above-named thirteen (13) candidates as the duly elected Senators of the Philippines in the May 14, 2001 elections. Based on the Certificates of Canvass finally tabulated, the first twelve (12) Senators shall serve for a term of six (6) years and the thirteenth (13th) Senator shall serve the unexpired term of three (3) years of Senator Teofisto T. Guingona, Jr., who was appointed Vice-President of the Philippines pursuant to Section 9, Article VII of the Constitution, in relation to Section 9, Article VI thereof, as implemented under Republic Act No. 6645. (emphasis supplied) On June 21, 2001, petitioners filed with the Court their petition for prohibition to stop respondent COMELEC from proclaiming any senatorial candidate in the May 14, 2001 election as having been elected for the lone senate seat for a three-year term. Copies of the petition were served on respondent COMELEC twice, first on June 20, 2001 by registered mail, and second on June 21, 2001, by personal delivery of petitioner Mojica. On June 26, 2001 the Court issued a Resolution requiring respondent

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COMELEC to comment within ten days from notice. Even before filing its comment, respondent COMELEC issued Resolution No. NBC-01-006 on July 20, 2001, the dispositive portion of which reads, viz: NOW, THEREFORE, by virtue of the powers vested in it under the Constitution, Omnibus Election Code and other election laws, the Commission on Elections sitting as the National Board of Canvassers hereby DECLARES official and final the above ranking of the proclaimed 13 Senators of the Philippines in relation to NBC Resolution No. 01-005 promulgated June 5, 2001. Resolution No. NBC-01-006 indicates the following ranking of the 13 Senators with the corresponding votes they garnered as of June 20, 2001: 1. De Castro, Noli L. - 16,237,386 2. Flavier, Juan M. - 11,735,897 3. Osmea, Sergio II R. - 11,593,389 4. Drilon, Franklin M. - 11,301,700 5. Arroyo, Joker P. - 11,262,402 6. Magsaysay, Ramon Jr. B. - 11,250,677 7. Villar, Manuel Jr. B. - 11,187,375 8. Pangilinan, Francis N. - 10,971,896 9. Angara, Edgardo J. - 10,805,177 10. Lacson, Panfilo M. - 10,535,559 11. Ejercito-Estrada, Luisa P. - 10,524,130 12. Recto, Ralph - 10,498,940 13. Honasan, Gregorio - 10,454,527 On the day of its promulgation, respondent COMELEC forwarded Resolution No. NBC-01-006 to the President of the Senate. On July 23, 2001, the thirteen senators, inclusive of respondents Honasan and Recto, took their oaths of office before the Senate President. With the turn of events after the filing of the petition on June 20, 2001, the Court ordered petitioners on March 5, 2002 and September 17, 2002 to amend their petition. In their amended petition, petitioners assailed the manner by which the special election was conducted citing as precedents the 1951 and 1955 special senatorial elections for a two-year term which were held simultaneously with the regular general elections for senators with six year terms, viz: (a) A vacancy in the Senate was created by the election of Senator Fernando Lopez as Vice-President in the 1949 elections. A special election was held in November 1951 to elect his successor to the vacated Senate position for a term to expire on 30 December 1953. Said special election was held simultaneously with the regular election of 1951. A separate space in the official ballot was provided for Senatorial candidates for the two year term; moreover, the candidates for the single Senate term for two years filed certificates of candidacy separate and distinct from those certificates of candidacy filed by the group of Senatorial candidates for the six year term.

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(...the votes for the twenty (20) candidates who filed certificates of candidacy for the eight Senate seats with six year terms were tallied and canvassed separately from the votes for the five candidates who filed certificates of candidacy for the single Senate seat with a two year term...) xxx xxx xxx (b) Again, a vacancy was created in the Senate by the election of then Senator Carlos P. Garcia to the Vice Presidency in the 1953 presidential elections. A special election was held in November 1955 to elect his successor to the vacated Senatorial position for a two year term expiring on 30 December 1957. Said special election for one senator to fill the vacancy left by the Honorable Carlos Garcia was held in November 1955 simultaneously with the regular election for eight Senate seats with a six year term. Here, separate spaces were provided for in the official ballot for the single Senate seat for the two year term as differentiated from the eight Senate seats with six year terms. The results as recorded by Senate official files show that votes for the candidates for the Senate seat with a two-year term were separately tallied from the votes for the candidates for the eight Senate seats with six-year term...[1] (emphases supplied) Petitioners thus pray that the Court declare the following:

(a) that no special election was conducted by respondent COMELEC for the single Senate seat with a three year term in the 14 May 2001 election. (b) null and void respondent COMELECs Resolutions No. NBC01-005 dated 5 June 2001 and NBC01-006 dated 20 July 2001 for having been promulgated without any legal authority at all insofar as said resolutions proclaim the Senatorial candidate who obtained the thirteenth highest number of votes canvassed during the 14 May 2001 election as a duly elected Senator.[2] Respondents filed their respective comments averring the following procedural flaws: (1) the Court has no jurisdiction over the petition for quo warranto; (2) the petition is moot; and (3) the petitioners have no standing to litigate. On the merits, they all defend the validity of the special election on the ground that the COMELEC had discretion to determine the manner by which the special election should be conducted and that the electorate was aware of the method the COMELEC had adopted. Moreover, they dismiss the deviations from the election laws with respect to the filing of certificates of candidacy for the special elections and the failure to provide in the official ballot a space for the special election vote separate from the twelve spaces for the regular senatorial election votes as inconsequential. They claim that these laws are merely directory after the election. II. Issues The issues for resolution are procedural and substantive. I shall limit my humble opinion to the substantive issue of whether a special election for the single Senate seat with a three-year term was validly held simultaneous with the general elections on May 14, 2001. III. Laws on the Calling of Special Elections Section 9, Article VI of the 1987 Constitution provides for the filling of a vacancy in the Senate and House of Representatives, viz: Sec. 9. In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term.

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Congress passed R.A. No. 6645, An Act Prescribing the Manner of Filling a Vacancy in the Congress of the Philippines, to implement this constitutional provision. The law provides, viz: SECTION 1. In case a vacancy arises in the Senate at least eighteen (18) months or in the House of Representatives at least one (1) year before the next regular election for Members of Congress, the Commission on Elections, upon receipt of a resolution of the Senate or the House of Representatives, as the case may be, certifying to the existence of such vacancy and calling for a special election, shall hold a special election to fill such vacancy. If the Congress is in recess, an official communication on the existence of the vacancy and call for a special election by the President of the Senate or by the Speaker of the House of Representatives, as the case may be, shall be sufficient for such purpose. The Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term. SECTION 2. The Commission on Elections shall fix the date of the special election, which shall not be earlier than forty-five (45) days nor later than ninety (90) days from the date of such resolution or communication, stating among other things, the office or offices to be voted for: Provided, however, That if within the said period a general election is scheduled to be held, the special election shall be held simultaneously with such general election. SECTION 3. The Commission on Elections shall send copies of the resolution, in number sufficient for due distribution and publication, to the Provincial or City Treasurer of each province or city concerned, who in turn shall publish it in their respective localities by posting at least three copies thereof in as many conspicuous places in each of their election precincts, and a copy in each of the polling places and public markets, and in the municipal buildings. (emphasis supplied) R.A. No. 6645 was amended in 1991 by R.A. No. 7166 which provides in Section 4, viz: SECTION 4. Postponement, Failure of Election and Special Election. - 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... In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, the Commission shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor longer than ninety (90) days after the occurrence of the vacancy. However, in case of such vacancy in the Senate, the special election shall be held simultaneously with the next succeeding regular election. (emphases supplied) IV. Democracy and Republicanism The shortest distance between two points is a straight line. In this case of first impression, however, the distance between existing jurisprudence and the resolution of the issue presented to the Court cannot be negotiated through a straight and direct line of reasoning. Rather, it is necessary to journey through a meandering path and unearth the root principles of democracy, republicanism, elections, suffrage, and freedom of information and discourse in an open society. As a first step in this indispensable journey, we should traverse the democratic and republican landscape to appreciate the importance of informed judgment in elections. A. Evolution of Democracy from Plato to Locke to Jefferson and Contemporary United States of America In the ancient days, democracy was dismissed by thoughtful thinkers. Plato deprecated democracy as rule by the masses. He warned that if all the people were allowed to rule, those of low quality would dominate the state by mere numerical superiority. He feared that the more numerous masses would govern with meanness and bring about a tyranny of the majority. Plato predicted that

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democracies would be short-lived as the mob would inevitably surrender its power to a single tyrant, and put an end to popular government. Less jaundiced than Plato was Aristotles view towards democracy. Aristotle agreed that under certain conditions, the will of the many could be equal to or even wiser than the judgment of the few. When the many governed for the good of all, Aristotle admitted that democracy is a good form of government. But still and all, Aristotle preferred a rule of the upper class as against the rule of the lower class. He believed that the upper class could best govern for they represent people of the greatest refinement and quality. In the Middle Ages, Europe plunged when the Roman Empire perished. Europe re-emerged from this catastrophe largely through reliance on the scientific method which ultimately ushered the Industrial Revolution. Material success became the engine which drove the people to search for solutions to their social, political and economic problems. Using the scythe of science and reason, the thinkers of the time entertained an exaggerated notion of individualism. They bannered the idea that all people were equal; no one had a greater right to rule than another. Dynastical monarchy was taboo. As all were essentially equal, no one enjoyed the moral right to govern another without the consent of the governed. The people therefore were the source of legitimate legal and political authority. This theory of popular sovereignty revived an interest in democracy in the seventeenth century. The refinements of the grant of power by the people to the government led to the social contract theory: that is, the social contract is the act of people exercising their sovereignty and creating a government to which they consent.[3] Among the great political philosophers who spurred the evolution of democratic thought was John Locke (1632-1704). In 1688, the English revolted against the Catholic tyranny of James II, causing him to flee to France. This Glorious Revolution, called such because it was almost bloodless, put to rest the long struggle between King and Parliament in England. The revolution reshaped the English government and ultimately brought about democracy in England. John Locke provided the philosophical phalanx to the Glorious Revolution. For this purpose, he wrote his Second Treatise of Government, his work with the most political impact. In his monumental treatise, Locke asserted that the basis of political society is a contract whereby individuals consent to be bound by the laws of a common authority known as civil government. The objective of this social contract is the protection of the individuals natural rights to life, liberty and property which are inviolable and enjoyed by them in the state of nature before the formation of all social and political arrangements.[4] Locke thus argues that legitimate political power amounts to a form of trust, a contract among members of society anchored on their own consent, and seeks to preserve their lives, liberty and property. This trust or social contract makes government legitimate and clearly defines the functions of government as concerned, above all, with the preservation of the rights of the governed. Even then, Locke believed that the people should be governed by a parliament elected by citizens who owned property. Although he argued that the people were sovereign, he submitted that they should not rule directly. Members of parliament represent their constituents and should vote as their constituents wanted. The governments sole reason for being was to serve the individual by protecting his rights and liberties. Although Lockes ideas were liberal, they fell short of the ideals of democracy. He spoke of a middle-class revolution at a time when the British government was controlled by the aristocracy. While he claimed that all people were equally possessed of natural rights, he advocated that political power be devolved only to embrace the middle class by giving Parliament, which was controlled through the House of Commons, the right to limit the monarchical power. He denied political power to the poor; they were bereft of the right to elect members of Parliament.

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Locke influenced Thomas Jefferson, the eminent statesman and philosopher of the (American) revolution and of the first constitutional order which free men were permitted to establish.[5] But although Jefferson espoused Lockes version of the social contract and natural law, he had respect for the common people and participatory government. Jefferson believed that the people, including the ordinary folk, were the only competent guardians of their own liberties, and should thus control their government. Discussing the role of the people in a republic, Jefferson wrote to Madison from France in 1787 that they are the only sure reliance for the preservation of our liberties.[6] The wave of liberalism from Europe notwithstanding, a much more conservative, less democratic, and more paternalistic system of government was originally adopted in the United States. The nations founders created a government in which power was much more centralized than it had been under the Articles of Confederation and they severely restricted popular control over the government.[7] Many of the delegates to the Constitutional Convention of 1787 adhered to Alexander Hamiltons view that democracy was little more than legitimized mob rule, a constant threat to personal security, liberty and property. Thus, the framers sought to establish a constitutional republic, in which public policy would be made by elected representatives but individual rights were protected from the tyranny of transient majorities. With its several elitist elements and many limitations on majority rule, the framers Constitution had undemocratic strands. The next two centuries, however, saw the further democratization of the federal Constitution.[8] The Bill of Rights was added to the American Constitution and since its passage, America had gone through a series of liberalizing eras that slowly relaxed the restraints imposed on the people by the new political order. The changing social and economic milieu mothered by industrialization required political democratization.[9] In 1787, property qualifications for voting existed and suffrage was granted only to white males. At the onset of Jacksonion democracy in the 1830s, property requirements quickly diminished and virtually became a thing of the past by the time of the Civil War. In 1870, the Fifteenth Amendment theoretically extended

qualification for voting. The Progressive Era also saw the Seventeenth Amendment of the Constitution to provide for direct election of United States senators[10] and established procedures for initiative, referendum and recall (otherwise known as direct democracy) in many states.[11] the franchise to African-Americans, although it took another century of struggle for the Amendment to become a reality. In 1920, the Nineteenth Amendment removed sex as a

Poll taxes were abolished as prerequisites for voting in federal elections through the Twenty-Fourth Amendment in 1964. Finally, the voting age was lowered to eighteen with the ratification of the Twenty-Sixth Amendment in 1971.[12]

B. Constitutional History of Democracy and Republicanism in the Philippines The Malolos Constitution was promulgated on January 21, 1899 by the short-lived Revolutionary Government headed by Emilio Aguinaldo after the Declaration of Independence from Spain on June 12, 1898. Article 4 of the Constitution declared the Philippines a Republic, viz: Art. 4. The government of the Republic is popular,representative, alternative, and responsible and is exercised by three distinct powers, which are denominated legislative, executive and judicial... Shortly after the promulgation of the Malolos Constitution, the Philippines fell under American rule. The Americans adopted the policy of gradually increasing the autonomy of the Filipinos before granting their independence.[13] In 1934, the U.S. Congress passed the Tydings-McDuffie Law xxx the last of the constitutional landmarks studding the period of constitutional development of the Filipino people under the American regime before the final grant of Philippine independence.[14] Under this law, the American government authorized the Filipino people to draft a constitution in

requirement that the constitution formulated and drafted shall be republican in form. In conformity with this requirement,[15] Article II, Section 1 of the 1935 Philippine Constitution was adopted, viz: 1934 with the

Sec. 1. The Philippines is a republican state. Sovereignty resides in the people and all government authority emanates from them. The delegates to the Constitutional Convention understood this form of government to be that defined by James Madison, viz:

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We may define a republic to be a government which derives all its power directly or indirectly from the great body of the people; and is administered by persons holding offices during pleasure, for a limited period, or during good behavior. It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it. It is sufficient for such government that the person administering it be appointed either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified.[16](emphases supplied) The 1973 Constitution adopted verbatim Article II, Section 1 of the 1935 Constitution. So did the 1987 Constitution. The delegates to the 1986 Constitutional Commission well understood the meaning of a republican government. They adopted the explanation by Jose P. Laurel in his book, Bread and Freedom, The Essentials of Popular Government, viz: When we refer to popular government or republican government or representative government, we refer to some system of popular representation where the powers of government are entrusted to those representatives chosen directly or indirectly by the people in their sovereign capacity.[17] (emphasis supplied) An outstanding feature of the 1987 Constitution is the expansion of the democratic space giving the people greater power to exercise their sovereignty. Thus, under the 1987 Constitution, the people can directly exercise their sovereign authority through the following modes, namely: (1) elections; (2) plebiscite; (3) initiative; (4) recall; and (5) referendum. Through elections, the people choose the representatives to whom they will entrust the exercise of powers of government.[18] In a plebiscite, the people ratify any amendment to or revision of the Constitution and may introduce amendments to the constitution.[19] Indeed, the Constitution mandates Congress to provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any law or part thereof passed by the Congress or local legislative body. . . It also directs Congress to enact a local government code which shall provide for effective mechanisms of recall, initiative, and referendum.[20] Pursuant to this mandate, Congress enacted the Local Government Code of 1991 which defines local initiative as the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance through an election called for the purpose. Recall is a method of removing a local official from office before the expiration of his term because of loss of confidence.[21] In a referendum, the people can approve or reject a law or an issue of national importance.[22] Section 126 of the Local Government Code of 1991 defines a local referendum as the legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the

sanggunian.

These Constitutional provisions on recall, initiative, and referendum institutionalized the peoples might made palpable in the 1986 People Power Revolution.[23] To capture the spirit of People Power and to make it a principle upon which Philippine society may be founded, the Constitutional Commission enunciated as a first principle in the Declaration of Principles and State Policies under Section 1, Article II of the 1987 Constitution that the Philippines is not only a republican but also a democratic state. The following excerpts from the Records of the Constitutional Commission show the intent of the Commissioners in emphasizing democratic in Section 1, Article II, in light of the provisions of the Constitution on initiative, recall, referendum and peoples organizations: MR. SUAREZ. . . . May I call attention to Section 1. I wonder who among the members of the committee would like to clarify this question regarding the use of the word democratic in addition to the word republican. Can the honorable members of the committee give us the reason or reasons for introducing this additional expression? Would the committee not be satisfied with the use of the word republican? What prompted it to include the word democratic? xxx xxx xxx MR. NOLLEDO. Madam President, I think as a lawyer, the Commissioner knows that one of the manifestations of republicanism is the existence of the Bill of Rights and periodic elections, which already indicates that we are a democratic state. Therefore, the addition of democratic is what we call pardonable redundancy the purpose being to emphasize that our country is republican and democratic at the same time. . . In the 1935 and 1973 Constitutions, democratic does not appear. I hope the Commissioner has no objection to that word.

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MR. SUAREZ. No, I would not die for that. If it is redundant in character but it is for emphasis of the peoples rights, I would have no objection. I am only trying to clarify the matter.[24] (emphasis supplied) In other portions of the Records, Commissioner Nolledo explains the significance of the word democratic, viz: MR. NOLLEDO. I am putting the word democratic because of the provisions that we are now adopting which are covering consultations with the people. For example, we have provisions on recall, initiative, the right of the people even to participate in lawmaking and other instances that recognize the validity of interference by the people through peoples organizations . . .[25] xxx xxx xxx MR. OPLE. The Committee added the word democratic to republican, and, therefore, the first sentence states: The Philippines is a republican and democratic state. May I know from the committee the reason for adding the word democratic to republican? The constitutional framers of the 1935 and 1973 Constitutions were content with republican. Was this done merely lor the sake of emphasis? MR. NOLLEDO. Madam President, that question has been asked several times, but being the proponent of this amendment, I would like the Commissioner to know that democratic was added because of the need to emphasize people power and the many provisions in the Constitution that we have approved related to recall, peoples organizations, initiative and the like, which recognize the participation of the people in policy-making in certain circumstances. MR. OPLE. I thank the Commissioner. That is a very clear answer and I think it does meet a need. . . xxx xxx xxx MR. NOLLEDO. According to Commissioner Rosario Braid, democracy here is understood as participatory democracy.[26] (emphasis supplied) The following exchange between Commissioners Sarmiento and Azcuna is of the same import: MR. SARMIENTO. When we speak of republican democratic state, are we referring to representative democracy? MR. AZCUNA. That is right. MR. SARMIENTO. So, why do we not retain the old formulation under the 1973 and 1935 Constitutions which used the words republican state because republican state would refer to a democratic state where people choose their representatives? MR. AZCUNA. We wanted to emphasize the participation of the people in government. MR. SARMIENTO. But even in the concept republican state, we are stressing the participation of the people. . . So the word republican will suffice to cover popular representation. MR. AZCUNA. Yes, the Commissioner is right. However, the committee felt that in view of the introduction of the aspects of direct democracy such as initiative, referendum or recall, it was necessary to emphasize the democratic portion of republicanism, of representative democracy as well. So, we want to add the word democratic to emphasize that in this new Constitution there are instances where the people would act directly, and not through their representatives.[27] (emphasis supplied) V. Elections and the Right to Vote

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A. Theory The electoral process is one of the linchpins of a democratic and republican framework because it is through the act of voting that government by consent is secured.[28] Through the ballot, people express their will on the defining issues of the day and they are able to choose their leaders[29] in accordance with the fundamental principle of representative democracy that the people should elect whom they please to govern them.[30] Voting has an important instrumental value in preserving the viability of constitutional democracy.[31] It has traditionally been taken as a prime indicator of democratic participation.[32]

The right to vote or of suffrage is an important political right appertaining to citizenship. Each individual qualified to vote is a particle of popular sovereignty.[33] In People v. Corral,[34] we held that (t)he modern conception of suffrage is that voting is a function of government. The right to vote is not a natural right but it is a right created by law. Suffrage is a privilege granted by the State to such persons as are most likely to exercise it for the public good. The existence of the right of suffrage is a threshold for the preservation and enjoyment of all other rights that it ought to be considered as one of the most sacred parts of the constitution.[35] In Geronimo v. Ramos, et al.,[36] we held that the right is among the most important and sacred of the freedoms inherent in a democratic society and one which must be most vigilantly guarded if a people desires to maintain through self-government for themselves and their posterity a genuinely functioning democracy in which the individual may, in accordance with law, have a voice in the form of his government and in the choice of the people who will run that government for him.[37] The U.S. Supreme Court recognized in Yick Wo v. Hopkins[38] that voting is a fundamental political right, because [it is] preservative of all rights. In Wesberry v. Sanders,[39] the U.S. Supreme Court held that no right is more precious in a free country than that of having a voice in the election of those who make the laws, under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Voting makes government more responsive to community and individual needs and desires. Especially for those who feel disempowered and marginalized or that government is not responsive to them, meaningful access to the ballot box can be one of the few counterbalances in their arsenal.[40] Thus, elections are substantially regulated for them to be fair and honest, for order rather than chaos to accompany the democratic processes.[41] This Court has consistently ruled from as early as the oft-cited 1914 case of Gardiner v. Romulo[42] that the purpose of election laws is to safeguard the will of the people, the purity of elections being one of the most important and fundamental requisites of popular government. We have consistently made it clear that we frown 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.[43] To preserve the purity of elections, comprehensive and sometimes complex election codes are enacted, each provision of which - whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself - inevitably affects the individuals right to vote.[44] As the right to vote in a free and unimpaired manner is preservative of other basic civil and political rights, Chief Justice Warren, speaking for the U.S. Supreme Court in Reynolds v. Sims[45] cautioned that any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. It was to promote free, orderly and honest elections and to preserve the sanctity of the right to vote that the Commission on Elections was created.[46] The 1987 Constitution mandates the COMELEC to ensure free, orderly, honest, peaceful, and credible elections.[47]

B. History of Suffrage in the Philippines In primitive times, the choice of who will govern the people was not based on democratic principles. Even then, birth or strength was not the only basis for choosing the chief of the tribe. When an old chief has failed his office or committed wrong or has aged and can no longer function, the members of the tribe could replace him and choose another leader.[48] Among the Muslims, a council or ruma bechara chooses the sultan. An old sultan may appoint his successor, but his decision is not absolute. Among the criteria for choosing a sultan were age, blood, wealth, fidelity to Islamic faith and exemplary

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character or personality.[49] In times of crises, the community may choose its leader voluntarily, irrespective of social status. By consensus of the community, a serf or slave may be voted the chief on account of his ability.

As far back as the Spanish regime, the Filipinos did not have a general right of suffrage.[50] It was only in the Malolos Constitution of 1899 that the right of suffrage was recognized;[51] it was a by-product of the Filipinos struggle against the Spanish colonial government and an offshoot of Western liberal ideas on civil government and individual rights.[52] The life of the Malolos Constitution was, however, cut short by the onset of the American regime in the Philippines. But the right of suffrage was reiterated in the Philippine Bill

under the first Philippine Election Law, Aci No. 1582, which took effect on January 15, 1907. This law was elitist and discriminatory against women. The right of suffrage was carried into the Jones Law of 1916.[55] Whereas previously, the right was granted only by the Philippine Legislature and thus subject to its control, the 1935 Constitution of 1902.[53] The first general elections were held in 1907[54]

elevated suffrage to a constitutional right.[56] It also provided for a plebiscite on the issue of whether the right of suffrage should be extended to women. On April 30, 1937, the plebiscite was held and the people voted affirmatively. In the 1973 Constitution,[57] suffrage was recognized not only as a right, but was imposed as a duty to broaden the electoral base and make democracy a reality through increased popular

The 1987 Constitution likewise enshrines the right of suffrage in Article V, but unlike the 1973 Constitution, it is now no longer imposed as a duty.[59] The 1948 Universal Declaration of Human Rights[60] and the 1976 Covenant on Civil and Political Rights[61] also protect the right participation in government. The voting age was lowered, the literacy requirement abolished, and absentee voting was legalized. [58]

of suffrage.

VI. Voter Information: Prerequisite to a Meaningful Vole in a Genuinely Free, Orderly and Honest Elections in a Working Democracy A. Democracy, information and discourse on public matters 1. U.S. jurisdiction For the right of suffrage to have a value, the electorate must be informed about public matters so that when they speak through the ballot, the knowledgeable voice and not the ignorant noise of the majority would prevail. Jefferson admonished Americans to be informed rather than enslaved by ignorance, saying that (i)f a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be.[62] Jefferson emphasized the importance of discourse in a democracy, viz: In every country where man is free to think and to speak, differences of opinion arise from difference of perception, and the imperfection of reason; but these differences when permitted, as in this happy country, to purify themselves by discussion, are but as passing clouds overspreading our land transiently and leaving our horizon more bright and serene.[63] Other noted political philosophers like John Stuart Mill conceived of the marketplace of ideas as a necessary means of testing the validity of ideas, viz: (N)o ones opinions deserve the name of knowledge, except so far as he has either had forced upon him by others, or gone through of himself, the same mental process which could have been required of him in carrying on an active controversy with opponents.[64] In the same vein, political philosopher Alexander Meiklejohn, in his article Free Speech Is An Absolute, stressed that, (s)elf-government can exist only insofar as the voters acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare that, in theory, casting a ballot is assumed to express.[65] To vote intelligently, citizens need information about their government.[66] Even during the diaper days of U.S. democracy, the Framers of the U.S. Constitution postulated that self-governing people should be well-informed about the workings of government to make intelligent political choices. In discussing the First Amendment, James Madison said: The right of freely examining public characters and measures, and of free communication thereon, is the only effectual guardian of every other right....[67] Thus, the United States, a representative democracy, has generally subscribed to the notion that public information and participation are requirements for a representative democracy where the electorate make informed choices. The First Amendment to the U.S. Constitution, which establishes freedom of the press

free and open debate will generate truth and that only an informed electorate can create an effective democracy.[68] and speech supports this proposition. The First Amendments jealous protection of free expression is largely based on the ideas that

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The First Amendment reflects the Framers belief that public participation in government is inherently positive. An informed citizenry is a prerequisite to meaningful participation in government. Thus, the U.S. Congress embraced this principle more concretely with the passage of the Freedom of Information Act of 1966 (FO1A).[69] The law enhanced public access to and understanding of the operation of federal agencies with respect to both the information held by them and the formulation of public policy.[70] In the leading case on the FOIA, Environmental Protection Agency v. Mink,[71] Justice Douglas, in his dissent, emphasized that the philosophy of the statute is the citizens right to be informed about what their government is up to.[72] In Department of Air Force v. Rose,[73] the U.S. Supreme Court acknowledged that the basic purpose of the FOIA is to open agency action to the light of public scrutiny. These rulings were reiterated in the 1994 case of Department of Defense, et al. v. Federal Labor Relations Authority, et al.[74] Be that as it may, the U.S. Supreme Court characterized this freedom of information as a statutory and not a constitutional right in Houchins v. KQED, Inc., et al.,[75] viz: there is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. . . The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.[76] Neither the courts nor Congress has recognized an affirmative constitutional obligation to disclose information concerning governmental affairs; the U.S. Constitution itself contains no language from which the duty could be readily inferred.[77] Nevertheless, the U.S. federal government, the fifty states and the District of Columbia have shown their commitment to public access to government-held information. All have statutes that allow varying degrees of access to government records.[78]

While the right of access to government information or the right to know is characterized as a statutory right, the right to receive information[79] was first identified by the U.S. Supreme Court as a constitutional right in the 1936 case of Grosjean v. American Press Company. [80] The Court also stated that the First Amendment protects the natural right of members of an organized society, united for their common good, to impart and acquire information about their common interests. Citing Judge Cooley, the Court held that free and general discussion of public matters is essential to prepare the people for an intelligent exercise of their rights as citizens.[81] The Court also noted that an informed public opinion is the most potent of all restraints upon misgovernment. Many consider Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council[82] the seminal right to receive case.[83] In this 1976 decision, the Court struck down a Virginia statute forbidding pharmacists from advertising the prices of prescription drugs. Writing for the majority, Justice Blackmun held that the free flow of information about commercial matters was necessary to ensure informed public decision-making. He reasoned that the protection of the First Amendment extends not only to the speaker, but to

the majority opinion made it clear that the constitutional protection for receipt of information would apply with even more force when more directly related to self-government and public policy.[84] the recipient of the communication. Although the case dealt with commercial speech,

In 1982, the U.S. Supreme Court highlighted the connection between self-government and the right to receive information in Board of Education v. Pico.[85] This case involved a school board-ordered removal of books from secondary school libraries after the board classified the book as anti-American, anti-Christian, anti-Semitic, and just plain filthy.[86] Justice Brennan, writing for a three-justice plurality, emphasized the First Amendments role in

Griswold v. Connecticut,[87] the Court held that (t)he State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The Court noted that the right to receive ideas is a necessary predicate to the recipients meaningful exercise of his own rights of speech, press, and political freedom. It then cited Madisons admonition that, (a) popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.[88] assuring widespread dissemination of ideas and information. Citing

The U.S. Supreme Court has reiterated, in various contexts, the idea that the Constitution protects the right to receive information and ideas.[89] Kleindienst v. Mandel [90]acknowledged a First Amendment right to receive information but deferring to Congress plenary power to exclude aliens. Lamont v. Postmaster General[91] invalidated a statutory requirement that foreign mailings of communist political propaganda be delivered only upon request by the addressee. Martin v. City of Struthers[92] invalidated a municipal ordinance forbidding door-to-door distribution of handbills as violative if the First Amendment rights of both the recipients and the distributors.[93]

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Whether the right to know is based on a statutory right provided by the FOIA or a constitutional right covered by the First Amendment, the underlying premise is that an informed people is necessary for a sensible exercise of the freedom of speech, which in turn, is necessary to a meaningful exercise of the right to vote in a working democracy. In 1927, Justice Louis Brandeis gave the principle behind the First Amendment its classic formulation, viz: Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.[94] The U.S. Supreme Court also held in Stromberg v. California[95] that the First Amendment provides the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means...[96] The Amendment is the repository of...self-governing powers[97] as it provides a peaceful means for political and social change through public discussion. In Mills v. State of Alabama,[98] it ruled that there may be differences about interpretations of the First Amendment, but there is practically universal agreement that a major purpose of the Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, all such matters relating to political processes.[99] Justice William J. Brennan summarized the principle succinctly in his opinion for the Court in Garrison v. Louisiana, viz: ...speech concerning public affairs is more than self-expression; it is the essence of self-government. (emphasis supplied) [100] 2. Philippine jurisdiction The electorates right to information on public matters occupies a higher legal tier in the Philippines compared to the United States. While the right to information in U.S. jurisdiction is merely a statutory right, it enjoys constitutional status in Philippine jurisdiction. The 1987 Constitution not only enlarged the democratic space with provisions on the electorates direct exercise of sovereignty, but also highlighted the right of the people to information on matters of public interest as a predicate to good governance and a working democracy. The Bill of Rights sanctifies the right of the people to information under Section 7, Article III of the 1987 Constitution, viz: Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. (emphasis supplied) This provision on the right to information sans the phrase as well as to government research data made its maiden appearance in the Bill of Rights of the 1973 Constitution. The original draft of the provision presented to the 1971 Constitutional Convention merely said that access to official records

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and the right to information shall be afforded the citizens as may be provided by law. Delegate De la Serna pointed out, however, that the provision did not grant a self-executory right to citizens. He thus proposed the rewording of the provision to grant the right but subject to statutory limitations.[101] The 1973 Constitution thus provided in Section 6, Article IV, viz: Sec. 6. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, shall be afforded the citizen subject to such limitations as may be provided by law. The change in phraseology was important as in the pre-1973 case of Subido v. Ozaeta,[102] this Court held that freedom of information or freedom to obtain information for publication is not guaranteed by the constitution. In that case, the issue before the Court was whether the press and the public had a constitutional right to demand the examination of the public land records. The Court ruled in the negative but held that the press had a statutory right to examine the records of the Register of Deeds because the interest of the press was real and adequate. As worded in the 1973 and 1987 Constitution, the right to information is self-executory. It is a public right where the real parties in interest are the people. Thus, every citizen has standing to challenge any violation of the right and may seek its enforcement.[103] The right to information, free speech and press and of assembly and petition and association which are all enshrined in the Bill of Rights are cognate rights for they all commonly rest on the premise that ultimately it is an informed and critical public opinion which alone can protect and uphold the values of democratic government.[104] In splendid symmetry[105] with the right to information in the Bill of Rights are other provisions of the 1987 Constitution highlighting the principle of transparency in government. Included among the State Policies under Article II of the 1987 Constitution is the following provision, viz: Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (emphasis supplied) Related to the above provision is Section 21 of Article XI, National Economy and Patrimony, which provides, viz: Sec. 21. Foreign loans may be incurred in accordance with law and the regulation of the monetary authority. Information on foreign laws obtained or guaranteed by the Government shall be made available to the public. (emphasis supplied) The indispensability of access to information involving public interest and government transparency in Philippine democracy is clearly recognized in the deliberations of the 1987 Constitutional Commission, viz: MR. OPLE. Mr. Presiding Officer, this amendment is proposed jointly by Commissioners Ople, Rama, Trenas, Romulo, Regalado and Rosario Braid. It reads as follows: SECTION 24. THE STATE SHALL ADOPT AND IMPLEMENT A POLICY OF FULL PUBLIC DISCLOSURE OF ALL ITS TRANSACTIONS SUBJECT TO REASONABLE SAFEGUARDS ON NATIONAL INTEREST AS MAY BE PROVIDED BY LAW. xxx xxx xxx In the United States, President Aquino has made much of the point that the government should be open and accessible to the public. This amendment is by way of providing an umbrella statement in the Declaration of Principles for all these safeguards for an open and honest government distributed all over the draft Constitution. It establishes a concrete, ethical principle for the conduct of public affairs in a genuinely open democracy, with the peoples right to know as the centerpiece.[106] (emphasis supplied)

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Commissioners Bernas and Rama made the following observations on the principle of government transparency and the publics right to information: FR. BERNAS. Just one observation, Mr. Presiding Officer. I want to comment that Section 6 (referring to Section 7, Article III on the right to information) talks about the right of the people to information, and corresponding to every right is a duty. In this particular case, corresponding to this right of the people is precisely the duty of the State to make available whatever information there may be needed that is of public concern. Section 6 is very broadly stated so that it covers anything that is of public concern. It would seem also that the advantage of Section 6 is that it challenges citizens to be active in seeking information rather than being dependent on whatever the State may release to them. xxx xxx xxx MR. RAMA. There is a difference between the provisions under the Declaration of Principles and the provision under the Bill of Rights. The basic difference is that the Bill of Rights contemplates coalition(sic) (collision?) between the rights of the citizens and the State. Therefore, it is the right of the citizen to demand information. While under the Declaration of Principles, the State must have a policy, even without being demanded, by the citizens, without being sued by the citizen, to disclose information and transactions. So there is a basic difference here because of the very nature of the Bill of Rights and the nature of the Declaration of Principles.[107] (emphases supplied) The importance of information in a democratic framework is also recognized in Section 24, Article II, viz: Sec. 24. The State recognizes the vital role of communication and information in nation-building. (emphasis supplied). Section 10 of Article XVI, General Provisions is a related provision. It states, viz: Sec. 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press. (emphasis supplied) The sponsorship speech of Commissioner Braid expounds on the rationale of these provisions on information and communication, viz: MS. ROSARIO BRAID. We cannot talk of the functions of communication unless we have a philosophy of communication, unless we have a vision of society. Here we have a preferred vision where opportunities are provided for participation by as many people, where there is unity even in cultural diversity, for there is freedom to have options in a pluralistic society. Communication and information provide the leverage for power. They enable the people to act, to make decisions, to share consciousness in the mobilization of the nation.[108] (emphasis supplied) In Valmonte v. Belmonte,[109] the Court had occasion to rule on the right to information of a lawyer, members of the media and plain citizens who sought from the Government Service Insurance System a list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos.[110] In upholding the petitioners right, the Court explained the rationale of the right to information in a democracy, viz: This is not the first time that the Court is confronted wth a controversy directly involving the constitutional right to information. In Taada v. Tuvera, G.R. No. 63915, April 2 , 1985, 136 SCRA 27 (involving the need for adequate notice to the public of the various laws which are to regulate the actions and conduct of citizens)

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and in the recent case of Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530 (involving the concern of citizens to ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles), the Court upheld the peoples constitutional right to be informed of matters of public interest and ordered the government agencies concerned to act as prayed for by the petitioners. xxx xxx xxx An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon is vital to the democratic government envisioned under our Constitution. The cornerstone of this republican system of government is delegation of power by the people to the State. In this system, governmental agencies and institutions operate within the limits of the authority conferred by the people. Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated... xxx xxx xxx ...The right of access to information ensures that these freedoms are not rendered nugatory by the governments monopolizing pertinent information. For an essential element of these freedoms is to keep open in continuing dialogue or process of communication between the government, and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the peoples will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in a discussion are aware of the issues and have access to information relating thereto can such bear fruit. The right to information is an essential premise of a meaningful right to speech and expression. But this is not to say that the right to information is merely an adjunct of and therefore restricted in application by the exercise of the freedoms of speech and of the press. Far from it. The right to information goes hand-in-hand with the constitutional policies of full public disclosure (footnote omitted) and honesty in the public service (footnote omitted). It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in government.[111] (emphases supplied) The Court made a similar ruling in Gonzales v. Narvasa[112] which involved the petitioners request addressed to respondent Executive Secretary Ronaldo B. Zamora for the names of the executive officials holding multiple positions in government, copies of their appointments, and a list of the recipients of luxury vehicles seized by the Bureau of Customs and turned over to Malacaang.[113] The respondent was ordered to furnish the petitioner the information requested. The Court held, viz: Under both the 1973 (footnote omitted) and 1987 Constitution, this (the right to information) is a self-executory provision which can be invoked by any citizen before the courts... Elaborating on the significance of the right to information, the Court said in Baldoza v. Dimaano (71 SCRA 14 [1976]...) that [t]he incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information in a democracy. There can be no realistic perception by the public of the nations problems, nor a meaningful democratic decision-making if they are denied access to information of general interest. Information is needed to enable the members of society to cope with the exigencies of the times.[114] (emphases supplied) The importance of an informed citizenry in a working democracy was again emphasized in Chavez v. Public Estates Authority and Amari Coastal Bay Development Corporation[115] where we held, viz:

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The State policy of full transparency in all transactions involving public interest reinforces the peoples right to information on matters of public concern. xxx xxx xxx These twin provisions (on right to information under Section 7, Article III and the policy of full public disclosure under Section 28, Article II) of the Constitution seek to promote transparency in policy-making and in the operations of the government, as well as provide the people sufficient information to exercise effectively other constitutional rights. These twin provisions are essential to the exercise of freedom of expression. If the government does not disclose its official acts, transactions and decisions to citizens, whatever citizens may say, even if expressed without any restraint, will be speculative and amount to nothing. These twin provisions are also essential to hold public officials at all times x x x accountable to the people, (footnote omitted) for unless citizens have the proper information, they cannot hold public officials accountable for anything. Armed with the right information, citizens can participate in public discussions leading to the formulation of government policies and their effective implementation. An informed citizenry is essential to the existence and proper functioning of any democracy.[116] (emphases supplied) B. Elections and the voters right to information on the elections 1. U.S. Jurisdiction An informed citizenrys opinions and preferences have the most impact and are most clearly expressed in elections which lie at the foundation of a representative democracy. The electorates true will, however, can only be intelligently expressed if they are well informed about the time, place, manner of conduct of the elections and the candidates therein. Without this information, democracy will be a mere shibboleth for voters will not be able to express their true will through the ballot. In Duquette v. Merrill,[117] which the ponencia cites by reference to 26 American Jurisprudence 2d 292,[118] a vacancy in the office of Country Treasurer in York County occurred on July 24, 1944 upon the death of the incumbent Maynard A. Hobbs. The vacancy was filled in accordance with the law providing that the governor may appoint a resident of the county who shall be treasurer until the 1st day of January following the next biennial election, at which said election a treasurer shall be chosen for the remainder of the term, if any. The next biennial election was held on September 11, 1944. In the June 1944 primary election (prior to the death of Hobbs) where nominations of candidates for the upcoming biennial elections were made, there was no nomination for the office of County Treasurer as Hobbes term was yet to expire on January 1947. Neither was a special primary election ordered by proclamation of the Governor after Hobbes death. Nor were other legal modes of nominating candidates such as through nomination of a political party, convention of delegates or appropriate caucus resorted to. Consequently, in the official ballot of the September 11, 1944 election, there was no provision made for the selection of a County Treasurer to fill the vacancy for the unexpired term. The name of the office did not appear on the ballot. Petitioner Duquette, however, claims that he was elected County Treasurer in the special election because in the City of Biddeford, the largest city in York County, 1,309 voters either wrote in the title of the office and his name thereunder, or used a sticker of the same import and voted for him. At the September 11, 1944 biennial election, there were approximately 22,000 ballots cast, but none included the name of the petitioner except for the 1,309 in Biddeford. In holding that the special election was void, the Maine Supreme Judicial Court made the following pronouncements, the first paragraph of which was cited by the

ponencia

in the case at bar, viz: Although there is not unanimity of judicial opinion as to the requirement of official notice, if the vacancy is to be filled at the time of a general election, yet it appears to be almost universally held that if the great body of the electors are misled by the want of such notice and are instead led to believe that no such election is in fact to be held, an attempted choice by a small percentage of the voters is void. Wilson v. Brown, 109 Ky 229, 139 Ky 397, 58 SW 595; Wooton v. Wheeler, 149 Ky 62, 147 SW 914; Secord v. Foutch, 44 Mich 89, 6 NW 110; Bolton v. Good, 41 NJL 296 (other citations omitted). Notice to the electors that a vacancy exists and that an election is to be held to fill it for the unexpired term, is essential to give validity to the meeting of an electoral body to discharge that particular duty, and is also an essential and characteristic element of a popular election. Public policy requires that it should be given in such form as to reach the body of the electorate. Here there had been no nominations to fill the vacancy, either by the holding of a special primary election, or by nomination by county political conventions or party committees. The designation of the office to be filled was not upon the official ballot. As before noted, except for the vacancy, it would have no place there, as the term of office of the incumbent, if living, would not expire until January 1, 1947.[119](emphases supplied)

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As early as the 1897 case of People ex rel. Dix v. Kerwin,[120] the requirement of notice in an election has been recognized, viz: ... We are not prepared to hold that this statute (requiring the giving of notice) is, under all circumstances and at all times, so far mandatory that a failure to observe its requirements will defeat an election otherwise regularly holden. There are many cases which hold that elections regularly held and persons regularly voted for on nominations made where there has been failure to observe some specific statutory requirement will not thereby be necessarily defeated and the direction may, because of the excusing circumstances, be held directory rather than mandatory. We do not believe the circumstances of the present case, as they are now exhibited, bring it all within this rule. The theory of elections is that there shall be due notice given to the voters, and that they must be advised either by a direct notice published by the clerk, as provided by statute, or by proceedings taken by the voters and the people generally in such a way as that it may be fairly inferred that it was generally and thoroughly well understood that a particular office was to be filled at the election, so that the voters should act understandingly and intelligently in casting their ballots. xxx xxx xxx Since there was no notice published according to the statute, we may not assume that the nomination was regularly made, or that the voters were duly notified that the office was to be filled at that general election, nine days afterwards. It has been generally held that some notice, regular in its form, and pursuant to the requirements of law, must be given as a safeguard to popular elections, that the people may be informed for what officers they are to vote. Of course, it might easily be true, as has already been suggested, that, if nominations had been made for an office, certificates regularly filed, and tickets regularly printed, even though the clerk had failed to publish his notice, there would be no presumption that the body of the voters were uninformed as to their rights and as to the positions which were to be filled. People v. Porter, 6 Cal. 26; Secord v. Foutch, 44 Mich 89, 6 N.W. 110; Adsit v. Osmun, 84 Mich. 420, 48 N.W. 31; Allen v. Glynn, 17 Colo. 338, 29 Pac. 670; Stephens v. People, 89 111. 337. [121](emphases supplied) Similarly, in Griffith v. Mercer County Court, et al.,[122] it was held, viz: There is a clear distinction between the case of a vacancy which is to be filled at a special election to be held at a time and place to be appointed by some officer or tribunal, authorized by statute to call it, and a case where the statute itself provides for filling a vacancy at the next general election after it occurs. In such case nearly all the authorities hold that if the body of electors do in fact know the vacancy exists, and candidates are regularly nominated by the various political parties to fill it, and the candidates receive most of the votes cast, such election is valid, even though no notice thereof was published in a manner provided by the statute. It would be hypertechnical and unreasonable to hold that a failure to comply literally with the statute in such case would avoid the election.[123](emphasis supplied) In Duquette, Kerwin and Griffith, as in a great majority of cases on the state level, the mere fact that the election to fill a vacancy occasioned by death, resignation, removal, or the like is held at the time of a general election in accordance with a constitutional or statutory provision, is not regarded as sufficient in itself to validate the election if no notice of the election was given; it has been held that in such a case, it must be shown that a sufficient part of the electors have actual notice that the vacancy is to be filled. The fact that a great percentage of voters cast their votes despite the failure of giving proper notice of the elections appears to be the most decisive single factor to hold that sufficient actual notice was given.[124] These doctrines were reiterated in Lisle, et al. v. C.L. Schooler[125] where it was held that mere allegation that many voters were informed that a special election to fill a vacancy was being held was unsatisfactory proof of sufficient notice. 2. Philippine jurisdiction

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In our jurisdiction, it is also the rule that the exercise of the right of suffrage should be an enlightened one, hence, based on relevant facts, data and information. It is for this reason that the choice of representatives in a democracy cannot be based on lottery or any form of chance. The choice must be based on enlightened judgment for democracy cannot endure the rule and reign of ignorance. This principle was stressed by the Court in Tolentino v. Commission on Elections.[126] The issue before the Court was whether the Constitutional Convention of 1971 had the power to call for a plebiscite for the ratification by the people of a partial constitutional amendment. The amendment was the proposal to lower the voting age to 18 but with the caveat that (t)his partial amendment, which refers only to age qualification for the exercise of suffrage shall be without prejudice to other amendments that will be proposed in the future by the 1971 Constitutional Convention on other portions of the amended Section or on other portions of the entire Constitution. The Court ruled in the negative, emphasizing the necessity for the voter to be afforded sufficient time and information to appraise the amendment, viz: . . .No one knows what changes in the fundamental principles of the constitution the Convention will be minded to approve. To be more specific, we do not have any means of foreseeing whether the right to vote would be of any significant value at all. Who can say whether or not later on the Convention may decide to provide for varying types of voters for each level of the political units it may divide the country into. The root of the difficulty in other words, lies in that the Convention is precisely on the verge of introducing substantial changes, if not radical ones, in almost every part and aspect of the existing social and political order enshrined in the present Constitution. How can a voter in the proposed plebiscite intelligently determine the effect of the reduction of the voting age upon the different institutions which the Convention may establish and of which presently he is not given any idea? We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole. In the present state of things, where the Convention has hardly started considering the merits of hundreds, if not thousands, of proposals to amend the existing Constitution, to present to the people any single proposal or a few of them cannot comply with this requirement. [127](emphasis supplied) The need for the voter to be informed about matters which have a bearing on his vote was again emphasized by the Court in UNIDO v. Commission on Elections.[128] This case involved the amendments to the 1973 Constitution proposed by the Batasang Pambansa in 1981. The Court reiterated that the more people are adequately informed about the proposed amendments, their exact meaning, implications and nuances, the better. We held, viz: To begin with, we cannot agree with the restrictive literal interpretation the Solicitor General would want to give to the free, orderly and honest elections clause of Section 5, Article X1I-C above-quoted. Government Counsel posits that the said clause refers exclusively to the manner in which the elections are conducted, that is to say, with the manner in which the voters are supposed to be allowed to vote. Perhaps, such a theory may hold insofar as ordinary elections of officials are concerned. But the Court views the provision as applicable also to plebiscites, particularly one relative to constitutional amendments. Be it borne in mind that it has been one of the most steadfast rulings of this Court in connection with such plebiscites that it is indispensable that they be properly characterized to be fair submission - by which is meant that the voters must of necessity have had adequate opportunity, in the light of conventional wisdom, to cast their votes with sufficient understanding of what they are voting on. We are of the firm conviction that the charters reference to honest elections connotes fair submission in a plebiscite. (emphasis supplied)

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Similarly, the Court ruled in Sanidad v. COMELEC[129] that plebiscite issues are matters of public concern and importance. The peoples right to be informed and to be able to freely and intelligently make a decision would be better served by access to an unabridged discussion of the issues, including the forum. It cannot be overemphasized that an informed electorate is necessary for a truly free, fair and intelligent election. The voting age was lowered from 21 years to 18 years because the youth of 18 to 21 years did not differ in political maturity,[130] implying that political maturity or the capacity to discern political information is necessary for the exercise of suffrage. It is for this obvious reason that minors and the insane are not allowed to vote. Likewise, the literacy test for the right to vote was abolished because as explained by the Committee on Suffrage and Electoral Reforms of the 1971 Constitutional Convention, the requirement to read and write was written into our constitution at a time when the only medium of information was the printed word and even the public meetings were not as large and successful because of the absence of amplifying equipment. It is a fact that today the vast majority of the population learn about national matters much more from the audiovisual media, namely, radio and television, and public meetings have become much more effective since the advent of amplifying equipment. Again, the necessity of information relevant to an election is highlighted. Similarly, in the 1986 Constitutional Commission, Commissioner Bernas, in justifying enfranchisement of the illiterates, spoke of their access to information relevant to elections,

viz:

If we look at...the communication situation in the Philippines now, the means of communication that has the farthest reach is AM radio. People get their information not from reading newspapers but from AM radio farmers while plowing, and vendors while selling things listen to the radio. Without knowing how to read and write, they are adequately informed about many things happening in the country.[131] Several election cases, albeit not involving an issue similar to the case at bar, affirm the necessity of an informed electorate in holding free, intelligent and clean elections. In Blo Umpar Adiong v. Commission on Elections[132] where this Court nullified a portion of a COMELEC Resolution prohibiting the posting of candidates decals and stickers on mobile places and limiting their location to authorized posting areas, we held, viz: We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L.Ed. 686 [1964]...) Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free, clean and honest. We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. (Mutuc v. Commission on Elections, 36 SCRA 228 [1970]). xxx xxx xxx When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the States power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed. xxx xxx xxx ...we have to consider the fact that in the posting of decals and stickers on cars and other moving vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the prohibition would not only deprive the owner who consents to such posting of the decals and stickers the use of his property but more important, in the process, it would deprive the citizen of his right to free speech and information: Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. (Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943]).[133]

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To facilitate the peoples right to information on election matters, this Court, in Telecommunications and Broadcast Attorneys of the Philippines, Inc., et al. v. COMELEC[134] upheld the validity of COMELECs procurement of print space and airtime for allocation to candidates, viz: With the prohibition on media advertising by candidates themselves, the COMELEC Time and COMELEC Space are about the only means through which candidates can advertise their qualifications and programs of government. More than merely depriving candidates of time for their ads, the failure of broadcast stations to provide airtime unless paid by the government would clearly deprive the people of their right to know. Art. III, 7 of the Constitution provides that the right of the people to information on matters of public concern shall be recognized...[135] (emphasis supplied) The importance of the peoples acquisition of information can be gleaned from several provisions of the Constitution under Article IX (C), The Commission on Elections.Section 4 provides that the COMELEC is given the power to supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges or concession granted by the Government... Such supervision or regulation shall aim to ensure equal opportunity, time, and space and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful and credible elections. Section 6 provides that, (a) free and open party system shall be allowed to evolve according to the free choice of the people. Section 2(5) of the same article requires political parties, organizations and coalitions to present their platform or program of government before these can be registered. In the robust and wide open debate of the electorate, these programs of government are important matters for discussion. The deliberations of the Constitutional Commission on whether voting of Congressmen should be by district or province also evince a clear concern for intelligent voting, viz: SR. TAN. Mr. Presiding Officer, I think one of the drawbacks of our political system, especially in the campaign, is that many of us vote by personality rather than by issue. So I am inclined to believe that in the elections by district, that would be lessened because we get to know the persons running more intimately. So we know their motivation, their excesses, their weaknesses and there would be less chance for the people to vote by personality. I was wondering whether the Commission shares the same observation. MR. DAVIDE. Mr. Presiding Officer, if it would be by province, the vote would no longer be personalities but more on issues, because the relationship is not really very personal. Whereas, if it would be by district, the vote on personality would be most impressive and dominant. SR. TAN. I cannot quite believe that. It would be like a superstar running around. MR. DAVIDE. For instance, we have a district consisting of two municipalities. The vote would be more on personalities. It is a question of attachment; you are the godson or the sponsor of a baptism, like that. But if you will be voted by province, its your merit that will be counted by all others outside your own area. In short, the more capable you are, the more chance you have of winning provincewide.[136] Several provisions of our election laws also manifest a clear intent to facilitate the voters acquisition of information pertaining to elections to the end that their vote would truly reflect their will. Section 52(j) of Article VII of B.P. Blg. 881 or the Omnibus Election Code gives the COMELEC the following power and duty: (j) Carry out a continuing and systematic campaign through newspapers of general circulation, radios and other media forms to educate the public and fully inform the electorate about election laws, procedures,

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decisions, and other matters relative to the work and duties of the Commission and the necessity of clean, free, orderly and honest electoral processes. (Sec. 185(k), 1978 EC) (k) Enlist non-partisan groups or organizations of citizens from the civic, youth, professional, educational, business or labor sectors known for their probity, impartiality and integrity...Such groups or organizations...shall perform the following specific functions and duties: A. Before Election Day: 1. Undertake an information campaign on salient features of this Code and help in the dissemination of the orders, decisions and resolutions of the Commission relative to the forthcoming election. (emphasis supplied) Section 87 of Article X of B.P. Blg. 881 also provides, viz: Section 87. xxx Public Forum. - The Commission shall encourage non-political, non-partisan private or civic organizations to initiate and hold in every city and municipality, public for at which all registered candidates for the same office may simultaneously and personally participate to present, explain, and/or debate on their campaign platforms and programs and other like issues... (emphasis supplied) Section 93 of the same Article provides, viz: Section 93. Comelec information bulletin. - The Commission shall cause the printing, and supervise the dissemination of bulletins to be known as Comelec Bulletin which shall be of such size as to adequately contain the picture, bio-data and program of government of every candidate. Said bulletin shall be disseminated to the voters or displayed in such places as to give due prominence thereto. (emphasis supplied) Of the same import is Section 25 of R.A. No. 8436, An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 Elections and Subsequent Electoral Exercises which provides, viz: Section 25. Voters Education. - The Commission together with and in support of accredited citizens arms shall cany out a continuing and systematic campaign though newspapers of general circulation, radio and other media forms, as well as through seminars, symposia, fora and other nontraditional means to educate the public and fully inform the electorate about the automated election system and inculcate values on honest, peaceful and orderly elections. (emphasis supplied) Similarly, R.A. No. 9006, An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices, approved a few months before the May 2001 elections or on February 12, 2001 provides in Section 6.4, viz: Sec. 6.4. xxx xxx xxx In all instances, the COMELEC shall supervise the use and employment of press, radio and television facilities insofar as the placement of political advertisements is concerned to ensure that candidates are given equal opportunities under equal circumstances to make known their qualifications and their stand on public issues within the limits set forth in the Omnibus Election Code and Republic Act No. 7166 on election spending. (emphasis supplied) The Omnibus Election Code also provides for procedures and requirements that make the election process clear and orderly to avoid voter confusion. Article IX of the Code provides, viz: Section 73. Certificate of candidacy.- No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein.

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xxx xxx xxx No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them... xxx xxx xxx Certificates of Candidacy; Certified List of Candidates. ... ...the Commission shall cause to be printed certified lists of candidates containing the names of all registered candidates for each office to be voted for in each province, city or municipality immediately followed by the nickname or stage name of each candidate duly registered in his certificate of candidacy and his political affiliation, if any. Said list shall be posted inside each voting booth during the voting period. xxx xxx xxx The names of all registered candidates immediately followed by the nickname or stage name shall also be printed in the election returns and tally sheets (R.A. No. 6646, Sec. 4) Section. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office;... Article XVI, Section 181, also provides, viz: Section 181. Official ballots. xxx xxx xxx (b) The official ballot shall also contain the names of all the officers to be voted for in the election, allowing opposite the name of each office, sufficient space or spaces with horizontal lines where the voter may write the name or names of individual candidates voted for by him. In the case of special elections, the need for notice and information is unmistakable under Section 7 of the Omnibus Election Code of the Philippines, as amended by R.A. No. 7166, which provides, viz: Sec. 7. Call for special election. - In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, the Commission shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor longer than ninety (90) after the occurrence of the vacancy. However, in case of such vacancy in the Senate, the special election shall be held simultaneously with the succeeding regular election. (R.A. No. 7166, Sec. 4) 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. (R.A. No. 7166, Sec. 4) The Commission shall send sufficient copies of its resolution for the holding of the election to its provincial election supervisors and election registrars for dissemination, who shall post copies thereof in at least three conspicuous places preferably where public meetings are held in each city or municipality affected. (1978 EC, Sec. 8) (emphasis supplied) In Hassan v. COMELEC, et al.,[137] we ruled that constituents could not be charged with notice of a second special elections held only two days after the failure of the special election. This case

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involved the May 8, 1995 regular local elections in Madalum, Lanao del Sur. Due to the threats of violence and terrorism in the area, there was a failure of election in six out of twenty-four precincts in Madalum. A special elections was set on May 27, 1995 but the Board of Election Inspectors failed to report for duty due to the threats of violence. The Monitoring Supervising Team of the COMELEC reset the special elections to May 29, 1995 in a school 15 kilometers away from the designated polling places. In ruling that the May 29 special elections was invalid, the Court ruled, viz: We cannot agree with the COMELEC that petitioner, his followers or the constituents must be charged with notice of the special elections to be held because of the failure of the two (2) previous elections. To require the voters to come to the polls on such short notice was highly impracticable. In a place marred by violence, it was necessary for the voters to be given sufficient time to be notified of the changes and prepare themselves for the eventuality. It is essential to the validity of the election that the voters have notice in some form, either actual or constructive of the time, place and purpose thereof. (Furste v. Gray, 240 Ky 604, 42 SW 2d 889; State ex. rel. Stipp v. Colliver (MO) 243 SW 2d 344.) The time for holding it must be authoritatively designated in advance. The requirement of notice even becomes stricter in cases of special elections where it was called by some authority after the happening of a condition precedent, or at least there must be a substantial compliance therewith so that it may fairly and reasonably be said that the purpose of the statute has been carried into effect. (State ex. rel. Stipp v. Colliver, supra). The sufficiency of notice is determined on whether the voters generally have knowledge of the time, place and purpose of the elections so as to give them full opportunity to attend the polls and express their will or on the other hand, whether the omission resulted in depriving a sufficient number of the qualified electors of the opportunity of exercising their franchise so as to change the result of the election. (Housing Authority of County of Kings v. Peden, 212 Cal App 2d 276, 28 Cal Rptr, other citations omitted) xxx xxx xxx ...even in highly urbanized areas, the dissemination of notices poses to be a problem. In the absence of proof that actual notice of the special elections has reached a great number of voters, we are constrained to consider the May 29 elections as invalid...(emphases supplied) Although this case did not involve a special election held simultaneously with a general election by mandate of law as in the case bar, the doctrine that can be derived from this case is that the electorate must be informed of the special election as proved by official or actual notice. VII. Application of the Principles of Democracy, Republicanism Freedom of Information and Discourse to the Case at Bar The 1987 Constitution, with its declaration that the Philippines is not only a republican but also a democratic state, and its various provisions broadening the space for direct democracy unmistakably show the framers intent to give the Filipino people a greater say in government. The heart of democracy lies in the majoritarian rule but the majoritarian rule is not a mere game of dominant numbers. The majority can rule and rule effectively only if its judgment is an informed one. With an informed electorate, a healthy collision of ideas is assured that will generate sparks to fan the flames of democracy. Rule by the ignorant majority is a sham democracy - a mobocracy - for in the words of Jefferson, a nation cannot be both free and ignorant. If there is anything that democracy cannot survive, it is the virus of ignorance. Elections serve as a crevice in the democratic field where voters, for themselves and the public good, plant the seeds of their ideals and freedoms. Yick Wo is emphatic that voting is a fundamental right that preserves and cultivates all other rights. In a republic undergirded by a social contract,

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the threshold consent of equal people to form a government that will rule them is renewed in every election where people exercise their fundamental right to vote to the end that their chosen representatives will protect their natural rights to life, liberty and property. It is this sacred contract which makes legitimate the governments exercise of its powers and the chosen representatives performance of their duties and functions. The electoral exercise should be nothing less than a pure moment of informed judgment where the electorate speaks its mind on the issues of the day and choose the men and women of the hour who are seeking their mandate. The importance of information and discourse cannot be overemphasized in a democratic and republican setting. Our constitutional provisions and cases highlighting the peoples right to information and the duty of the State to provide information unmistakably recognize the indispensable need of properly informing the citizenry so they can genuinely participate in and contribute to a functioning democracy. As elections lie at the foundation of representative democracy, there should be no quarrel over the proposition that electoral information should also be disseminated to the electorate as a predicate to an informed judgment. The ponencia concedes that a survey of COMELECs resolutions relating to the conduct of the May 14, 2001 elections would reveal that they contain nothing which would amount to a compliance, either strict or substantial, with the requirements in Section 2 of R.A. No. 6645, as amended. Nowhere in its resolutions or even its press releases did COMELEC state that it would hold a special election for a single Senate seat with a three-year term simultaneously with the regular elections on May 14, 2001. Nor did COMELEC give official notice of the manner by which the special election would be conducted, i.e., that the senatorial candidate receiving the 13th highest number of votes in the election would be declared winner in the special election. Still, the ponencia upheld the holding of the May 14, 2001 special election despite the lack of call for such election and ... lack of notice as to the office to be filled and the manner by which the winner in the special election is to be determined. With all due respect, I cannot subscribe to the ponencias position for it leaves the purity of elections and the ascertainment of the will of the electorate to chance, conjecture and speculation. Considering that elections lie at the heart of the democratic process because it is through the act of voting that consent to government is secured, I choose to take a position that would ensure, to the greatest extent possible, an electorate that is informed, a vote that is not devalued by ignorance and an election where the consent of the governed is clear and unequivocal. The ponencia justifies its position on the lack of call or notice of the time and place of the special election by holding that the law charges voters with knowledge of R.A. No. 7166 which provides that in case of a vacancy in the Senate, the special election to fill such vacancy shall be held simultaneously with the next succeeding election, that is, the May 14, 2001 election. The ponencias argument is that the provisions of R.A. No. 7166 stating that the special election would be held simultaneously with the regular election operated as a call for the election so that the absence of a call by the COMELEC did not taint the validity of the special election. With due respect, this is not the intention of R.A. No. 7166 for despite its paragraph 1, Section 7 that in case of such vacancy in the Senate, the special election shall be held simultaneously with the succeeding regular election, the law nevertheless required in paragraph 3 of the same section that (t)he Commission shall send sufficient copies of its resolution for the holding of the election to its provincial election supervisors and election registrars for dissemination, who shall post copies thereof in at least three conspicuous places preferably where public meetings are held in each city or municipality affected. The Duquette case cited by the ponencia does not lend support to its thesis that statutory notice suffices. In Duquette, it was held that in the absence of an official notice of the special election mandated by law to be held simultaneously with the general election, there should be actual

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notice of the electorate. Actual notice may be proved by the voting of a significant percentage of the electorate for the position in the special election or by other acts which manifest awareness of the holding of a special election such as nomination of candidates. In the case at bar, however, the number of votes cast for the special election cannot be determined as the ballot did not indicate separately the votes for the special election. In fact, whether or not the electorate had notice of the special election, a candidate would just the same fall as the 13th placer because more than twelve candidates ran for the regular senatorial elections. Nobody was nominated to vie specifically for the senatorial seat in the special election nor was there a certificate of candidacy filed for that position. In the absence of official notice of the time, place and manner of conduct of the special election, actual notice is a matter of proof. Respondents and the ponencia cannot point to any proof of actual notice. With respect to the lack of notice of the manner by which the special election would be conducted, i.e., that the 13th placer would be declared winner in the special election, there can be no debate that statutory notice will not operate as notice to the electorate as there is no law providing that a special election held simultaneously with a general election could be conducted in the manner adopted by the Senate and the COMELEC. Instead, the ponencia buttresses its holding by stating that the petitioner has not claimed nor proved that the failure of notice misled a sufficient number of voters as would change the result of the special senatorial election. It relies on actual notice from many sources, such as media reports of the enactment of R.A. No. 6645 and election propaganda during the campaign but without even identifying these media reports and election propaganda. Suffice to state that before the ponencia can require proof that a sufficient number of voters was misled during the May 14, 2001 elections, it must first be shown that in the absence of official notice of the procedure for the special election, there was nevertheless actual notice of the electorate so that the special election could be presumed to be valid. Only then will the duty arise to show proof that a sufficient number of voters was misled to rebut the presumption of validity. I respectfully submit that the electorate should have been informed of the time, place and manner of conduct of the May 14, 2001 special election for the single senatorial seat for the unexpired term of former Senator Teofisto Guingona, Jr. Tolentino, UNIDO, Blo Umpar Adiong and Hassan all deepened the doctrine that a meaningful exercise of the right of suffrage in a genuinely free, orderly and honest election is predicated upon an electorate informed on the issues of the day, the programs of government laid out before them, the candidates running in the election and the time, place and manner of conduct of the election. It is for this reason that the Omnibus Election Code is studded with processes, procedures and requirements that ensure voter information. Bince and Benito further teach us that free and intelligent vote is not enough; correct ascertainment of the will of the people is equally necessary. The procedure adopted in the case at bar for holding the May 14, 2001 special senatorial election utterly failed to ascertain the peoples choice in the special election. Section 2 of R.A. No. 7166 provides that the special election shall be held simultaneously with such general election. It does not contemplate, however, the integration of the special senatorial election into the regular senatorial election whereby candidates who filed certificates of candidacy for the regular elections also automatically stand as candidates in the special election. The Omnibus Election Code is crystal clear that a candidate can run for only one position in an election. Consequently, there were no candidates in the special election to vote for. Separate sets of candidates for the special election and the regular elections are decisive of the election results. Each independent-minded voter could have a variety of reasons for choosing a candidate to serve for only the unexpired term of three years instead of the regular term of six years or not choosing a candidate at all. A voter might choose a neophyte to serve the three-year term as a shorter trial period. Another might be minded to choose an old timer to compel him to hasten the completion of his projects in a shorter period of three years. Still another might want to afford a second

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termer who has not performed too satisfactorily a second chance to prove himself but not for too long a period of six years. In not allowing the voter to separately indicate the candidate he voted for the three-year senatorial term, the voter was deprived of his right to make an informed judgment based on his own reasons and valuations.Consequently, his true will in the special election was not ascertained. As a particle of sovereignty, it is the thinking voter who must determine who should win in the special election and not the unthinking machine that will mechanically ascertain the 13th placer in the general election by mathematical computations. The models to follow in the conduct of special elections mandated by law to be held simultaneously with a general elections are the special elections of November 13, 1951 and November 8, 1955 to fill the seats vacated by then Senators Fernando Lopez and Carlos P. Garcia, respectively. In these special senatorial elections, election activities prior (i.e., filing of certificate of candidacies), during (i.e., the act of voting for a special election candidate distinct from the candidates for the regular election) and after the election (i.e., tallying and canvassing of results) were conducted simultaneously with, but distinctly from the regular senatorial elections. This procedure minimized voter confusion and allowed the voter to freely and accurately speak his mind and have his will truly ascertained. Regrettably, this objective appears to have been lost in the calling of the May 14, 2001 special election as can be gleaned from the Senate deliberations on the resolution calling for that election, viz: S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving the mechanics to the Commission on Elections. But personally, I would like to suggest that probably, the candidate obtaining the 13th largest number of votes be declared as elected to fill up the unexpired term of Senator Guingona. S[ENATOR] O[SMEA]. (J). Is there a law that would allow the Comelec to conduct such an election? Is it not the case that the vacancy is for a specific office? I am really at a loss. I am rising here because I think it is something that we should consider. I do not know if we can...No, this is not a Concurrent Resolution. S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate President. T[HE] P[RESIDENT]. May I share this information that under Republic Act No. 6645, what is needed is a resolution of this Chamber calling attention to the need for the holding of a special election to fill up the vacancy created, in this particular case, by the appointment of our colleague, Senator Guingona, as Vice President. It can be managed in the Commission on Elections so that a slot for the particular candidate to fill up would be that reserved for Mr. Guingonas unexpired term. In other words, it can be arranged in such a manner. xxx xxx xxx S[ENATOR] R[OCO]. Mr. President. T[HE] P[RESIDENT]. Sen Raul S. Roco is recognized. S[ENATOR] R[OCO]. May we suggest, subject to a one-minute caucus, wordings to the effect that in the simultaneous elections, the 13th placer be therefore deemed to be the special election for this purpose. So we just nominate 13 and it is good for our colleagues. It is better for the candidates. It is also less expensive because the ballot will be printed and there will be less disenfranchisement. T[HE] P[PRESIDENT]. That is right. S[ENATOR] R[OCO]. If we can just deem it therefore under this resolution to be such a special election, maybe, we satisfy the requirement of the law. T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance for the Comelec. S[ENATOR] R[OCO]. Yes.

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T[HE] P[RESIDENT]. - to implement. S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility. T[HE] P[RESIDENT]. That is right. S[ENATOR] R[OCO]. We will already consider the 13th placer of the forthcoming elections that will be held simultaneously a? a special election under this law as we understand it. T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator Roco. S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later, maybe it will be better, Mr. President. T[HE P[RESIDENT]. What does the sponsor say? S[ENATOR] [T]ATAD. Mr. President, that is a most satisfactory proposal because I do not believe that there will be anyone running specifically T[HE] P[RESIDENT]. Correct. S[ENATOR] T[ATAD]. - to fill up this position for three years and campaigning nationwide. T[HE] P[RESIDENT]. Actually, I think what is going to happen is the 13th candidate will be running with specific groups. S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13. T[HE] P[RESIDENT]. I think we can specifically define that as the intent of this resolution. S[ENATOR] T[ATAD]. Subject to style, we accept that amendment and if there will be no other amendment, I move for the adoption of this resolution. ADOPTION OF S. RES. NO. 934 If there are not other proposed amendments, I move that we adopt this resolution. T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is there any objection? [Silence] There being none, the motion is approved.[138] (emphases supplied) The Senates observation that the procedure for the special election that it adopted would be less costly for the government as the ballots need not be printed again to separately indicate the candidate voted for the special election does not also lend justification for the manner of conduct of the May 14, 2001 special election. We cannot bargain the electorates fundamental right to vote intelligently with the coin of convenience. Even with the Senate stance, the regular ballot had to be modified to include a thirteenth space in the list of senatorial seats to be voted for. At any rate, reliance on R.A. No. 6645 is erroneous. This law provides that when a vacancy arises in the Senate, the Senate, by resolution, certifies to the existence of the vacancy and calls for a special election. Upon receipt of the resolution, the COMELEC holds the special election. R.A. No. 6645 was amended in 1991 by R.A. No. 7166. The latter law provides that when a permanent vacancy occurs in the Senate at least one year before the expiration of the term, the Commission (on Elections) shall call and hold a special election to fill the vacancy... Since under R.A. No. 7166, it is the power and duty of the COMELEC, and not the Senate, to call and hold the election, the Senate cannot, by mere resolution, impose upon the COMELEC the procedure for the special election that it intended such that Comelec will not have the flexibility to deviate therefrom. As a constitutional body created to ensure free, orderly, honest, peaceful, and credible elections, it was the duty of the COMELEC to give to the electorate notice of

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the time, place and manner of conduct of the special elections and to adopt only those mechanisms and procedures that would ascertain the true will of the people. In sum, I submit that the ruling of the ponencia would result not just to a step back in an age of information, but would constitute a fall in the nations rise to democracy begun as early as the Malolos Constitution and begun anew in the 1987 Constitution after the 1986 People Power Revolution. Informing the electorate on the issues and conduct of an election is a prerequisite to a free, orderly, honest, peaceful, and credible elections. Free elections does not only mean that the voter is not physically restrained from going to the polling booth, but also that the voter is unrestrained by the bondage of ignorance. We should be resolute in affirming the right of the electorate to proper information. The Court should not forfeit its role as gatekeeper of our democratic government run by an informed majority. Let us not open the door to ignorance. I vote to grant the petition.

2. Commission on Elections Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-22335

December 31, 1965

AMANTE P. PURISIMA, petitioner, vs. HON. ANGELINO C. SALANGA, Judge of the Court of First Instance of Ilocos Sur. THE PROVINCIAL BOARD OF CANVASSERS, THE COMMISSION ON ELECTIONS and GREGORIO CORDERO, respondents. Jose W. Diokno for petitioner. Provincial Fiscal Juvenal K. Guerrero for respondent Provincial Board of Canvassers Antonio Barredo for respondents Judge Salanga and Gregorio Cordero Ramon Barrios for respondent Commission on Elections. BENGZON, J.P., J.: In the election of November 12, 1963, Amante Purisima and Gregorio Cordero were among the candidates for any of the three offices of Provincial Board Member of Ilocos Sur. After the election or on November 25, 1963 the provincial board of canvassers met and started canvassing the returns for said office. Purisima noted during the canvass that the returns from some precincts, forty-one (41) in all, showed on their face that the words and figures for Cordero's votes had been "obviously and manifestly erased" and superimposed with other words and figures. For purposes of comparison, the Nacionalista Party copies of the returns for the aforesaid precincts were submitted to the board. A discrepancy of 5,042 votes in favor of Cordero was thereby found, thus:

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7,27 7 vote s for Cord ero 2,23 Nacio 5 nalist vote a s for Party' Cord s copy ero A request for suspension of the canvass was thereupon made by Purisima. The board of canvassers denied said request upon the ground that it was not yet ascertainable if the discrepancies would materially affect the result. Canvass proceeded. Provin cial Treas urer's copy:

After the returns had all been read, the result for the office of third (and last) member of the Provincial Board was the following:

41,2 Corde 29 ro vote s 39,3 Purisi 72 ma vote s. 1,85 Differ 7 ence vote s Purisima again called attention to the erasures and discrepancies and asked for suspension of canvass — for him to have recourse to judicial remedy. Denying said request, the board of canvassers finished the canvass and proclaimed Cordero the winner, on November 28. On November 29, Purisima filed a petition in the Commission on Elections to annul the canvass and proclamation above-mentioned. The Commission on Elections issued a resolution on November 30, annulling the canvass and proclamation, as regards Cordero and Purisima. Purisima, on December 10, filed in the Court of First Instance a petition for recount under Section 163 of the Revised Election Code. Subsequently, motions to dismiss the same were filed by the board of canvassers and by Cordero. In his motion to dismiss, Cordero admitted the erasures and discrepancies on the face of the returns from 41 precincts, but denied that said erasures were due to tampering or falsification. After a preliminary hearing on the motions to dismiss, the Court of First Instance, on December 27, dismissed the petition for recount. And on December 28, Cordero filed in the Commission on Elections a motion for resumption of the canvass.

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Purisima, on January 2, 1964, moved for reconsideration of the Court of First Instance's order of dismissal. In the same case, he also filed, on January 8, a petition for preliminary injunction to restrain the holding of another canvass. Annexed to said petition were certified photostatic copies of the Comelec's copies of the returns from the 41 precincts in question. Furthermore, Purisima filed with the Commission on Elections, on January 11, an opposition to the resumption of the canvass. Alleging that the Commission on Elections was about to order the canvass resumed, Purisima came to this Court, on January 17, 1964, by petition for certiorari with preliminary injunction. Petitioner asked that the lower court's order dismissing his petition for recount be set aside and that the Commission on Elections be enjoined from ordering resumption of the canvass until after the judicial recount. On January 22, 1964 we ordered respondents to answer, and allowed preliminary injunction to be issued as prayed for upon the posting of a bond of P500.00. After respondents filed their answer the case was heard and submitted for decision. The requisites for judicial recount are set forth in Section 163 of the Revised Election Code: When statements of precinct are contradictory. — In case it appears to the provincial board of canvassers that another copy or other authentic copies of the statement from an election precinct submitted to the board give to a candidate a different number of votes and the difference affects the result of the election, the Court of First Instance of the province, upon motion of the board or of any candidate affected, may proceed to recount the votes cast in the precinct for the sole purpose of determining which is the true statement or which is the true result of the count of the votes cast in said precinct for the office in question. Notice of such proceeding shall be given to all candidates affected. In dismissing the petition for recount, respondent Judge stated that some of the requisites were not present, namely: first, that it appears to the provincial board of canvassers that a discrepancy exists; second, that said discrepancy is between the copy submitted to the board and another authentic copy thereof; third, that said authentic copy must also be submitted to the board. First of all, it is not disputed that a candidate affected can file the petition for recount, even if he does so alone, without the concurrence of the provincial board of canvassers (Cawa v. Del Rosario, L16837-40, May 30,1960). From the fact, therefore, that the provincial board of canvassers has not petitioned for a recount it cannot be inferred that they were not convinced a discrepancy existed. In fact, when Purisima first called attention to the discrepancy between the Nacionalista Party copies and the Provincial Treasurer's copies, the board of canvassers admitted the discrepancy but stated that it was not yet ascertainable whether the discrepancy would amount to enough votes as to affect the result. There is no more question now that the number of votes involved in said discrepancy is more than enough to alter the result. Finally, in the motion to dismiss filed by the board of canvassers, the existence of the discrepancy is not disputed, and the board merely raises the defense that the recount is up to the court and not to said board (Annex D, Petition). Passing on to the next point, the basis of the petition for recount was not merely a discrepancy between the Nacionalista Party copies and the Provincial Treasurer's copies of the returns. Paragraph 8 of said petition shows that, in addition, the Commission on Elections' copies were relied upon: That as a result of the aforesaid erasures, tampering and apparent falsifications, there exist discrepancies between the Provincial Treasurer's copies (the basis of the canvass) of the election returns in the precincts in question, on one hand, and the copies pertaining to the Nacionalista Party and those pertaining to the Commission on Elections, on the other, and that said discrepancies

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materially affect the result of the election as between herein petitioner and respondent Gregorio Cordero; Accordingly, even assuming for the nonce — a point we do not here decide — that the Nacionalista Party copies are not copies that may be the basis of a petition for recount, the fact remains that the Commission on Elections' copies were said to reflect the same discrepancy with the Provincial Treasurer's copies. It is settled that the Commission on Elections' copies are authentic copies within the meaning of Section 163 of the Revised Election Code (Laws in v. Escalona, L-22540, July 31, 1964; Matanog v. Alejandro, L-22502-08, June 30, 1964.) The trial court. however, ruled that the Commission on Elections' copies had no application to the petition for recount because they were not submitted to the board of canvassers. The record definitely shows that the reason why Purisima was not able to submit to the board said Commission on Elections' copies was because the board declined to suspend the canvass and proclamation. It is the duty of the board of canvassers to suspend the canvass in case of patent irregularity in the election returns. In the present case, there were patent erasures and superimpositions, in words and figures on the face of the election returns submitted to the board of canvassers. It was therefore imperative for the board to stop the canvass so as to allow time for verification of authentic copies and recourse to the courts (Javier v. Commission on Elections, L-22248, January 30, 1965). A canvass or proclamation made notwithstanding such patent defects, without awaiting proper remedies, is null and void (Ibid.). In fact, as stated, the Commission on Elections declared the canvass and proclamation, made by respondent provincial board of canvassers, null and void. Since the board of canvassers prevented Purisima from securing the Commission on Elections' copies of the returns to establish a discrepancy between them and the Provincial Treasurer's copies, the failure to submit the Commission on Elections' copies to said board should not prejudice Purisima's right to petition for recount before the court. It was therefore grave abuse of discretion for respondent court to refuse to consider the Commission on Elections' copies, regardless of the patent and admitted irregularities on the face of the Provincial Treasurer's copies and the alleged discrepancy amounting to thousands of votes sufficient to affect the results. Interpretation of election laws should give effect to the expressed will of the electorate. Patent erasures and superimpositions in words and figures of the votes stated in the election returns strike at the reliability of said returns as basis for canvass and proclamation. A comparison with the other copies, and, in case of discrepancy, a recount, is the only way to remove grave doubts as to the correctness of said returns as well as of ascertaining that they reflect the will of the people. WHEREFORE, the dismissal of the petition for recount is set aside, respondent Judge is ordered to proceed with the petition for recount, and respondents Commission on Elections and Provincial Board of Canvassers are enjoined, until after the termination of proceedings in the petition for recount, from ordering or holding another canvass and proclamation as between petitioner Purisima and respondent Cordero. Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal and Zaldivar, JJ., concur.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-25467

April 27, 1967

LUCAS V. CAUTON, vs. COMMISSION ON ELECTIONS and PABLO SANIDAD, respondents.

petitioner,

Antonio Barredo for Ramon Barrios for respondent Commission on Pablo C. Sanidad and F. D. Villanueva and Associates for respondent Sanidad.

petitioner. Elections.

ZALDIVAR, J.: In the national elections held on November 9, 1965, petitioner Lucas V. Cauton and respondent Pablo Sanidad, along with Godofredo S. Reyes, were candidates for the office of Representative in the second congressional district of Ilocos Sur. During the canvass by the Provincial Board of Canvassers of Ilocos Sur of the votes cast for the candidates for Representative in the second congressional district of Ilocos Sur, and particularly after the Board had opened the envelopes containing the copies of the election returns from each of the election precincts in the municipalities of Candon, Santiago and Sta. Cruz that were presented by the Provincial Treasurer of Ilocos Sur to the Board, respondent Sanidad brought to the attention of the Board the fact that the entries of votes for the candidates for Representative in those copies of the election returns that came from the envelopes presented by the provincial treasurer differed from the entries appearing in the copies of the returns from the same election precincts that were in the possession of the Liberal Party.1äwphï1.ñët Respondent Sanidad filed a petition with the Commission on Elections praying for the opening of the ballot boxes in all the precincts of Candon, Santiago and Sta. Cruz, in order to retrieve the election returns deposited therein so that those election returns might be used in the canvass of the votes for the candidates for Representative in the second district of Ilocos Sur, and that in the meantime the Provincial Board of Canvassers of Ilocos Sur be ordered to refrain from proclaiming the winning candidate for the office of Representative in said district. The Commission on Elections issued the restraining order prayed for by respondent Sanidad and set his petition for hearing. After hearing, the Commission on Elections found "that it had been clearly established that the copies of the election returns for the Municipal Treasurer, for the Commission on Elections and for the Provincial Treasurer for the municipality of Santa Cruz have uniform alterations in the entries of the votes cast for representative showing different number of votes compared with the Liberal Party copies, while the copies of the election returns for the Commission on Elections and the Provincial Treasurer for the municipalities of Candon and Santiago have likewise uniform alterations and showing different numbers compared with the Liberal Party copies ...."1The copies of the election returns that were furnished the municipal treasurers of Candon and Santiago were never verified because the municipal treasurers of those two municipalities did not comply with the subpoena duces tecum issued by the Commission on Elections directing them to bring to the Commission the copies of the election returns of the precincts in their respective municipalities that were in their possession.

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On December 22, 1965, respondent Commission on Elections issued an order providing, among others, that ... to enable the aggrieved party to establish discrepancy between copies of the election returns provided by law in the aforementioned precincts for the purpose of obtaining judicial remedy under the provisions of Section 163 of the Revised Election Code, the Commission Resolved ... to direct immediately the opening of the ballot boxes of the municipalities of Candon, Sta. Cruz and Santiago which are now impounded and under the custody of the Zone Commander of the 1st PC Zone in Camp Olivas, San Fernando, Pampanga solely for the purpose of retrieving therefrom the corresponding election returns, copies for the ballot box, in all the precincts of said municipalities. Pursuant to the instructions of respondent Commission, contained in the resolution of December 22, 1965, the ballot boxes from all the precincts in the municipalities of Candon, Sta. Cruz and Santiago were opened by the Chief of the Law Enforcement Division of the Commission, Atty. Fernando Gorospe, Jr., in the presence of witnesses, and the envelopes containing the election returns found inside the ballot boxes were taken and brought to Manila on December 23, 1965. On the same date, December 23, 1965, herein petitioner, Lucas V. Cauton, filed before this Court a petition for certiorari and prohibition with preliminary injunction, praying that the resolution of the respondent Commission on Elections dated December 22, 1965 ordering the opening of the ballot boxes used in all the precincts of Candon, Sta. Cruz and Santiago in the elections of November 9, 1965 be annulled and set aside. The petition further prays that the Commission on Elections be restrained from opening, the envelopes containing the election returns found in the afore-mentioned ballot boxes and be ordered to return the said envelopes to the corresponding ballot boxes. In his petition, petitioner alleges that the respondent Commission on Elections acted without or in excess of its jurisdiction in issuing the resolution of December 22, 1965. This Court gave due course to the petition, but did not issue the writ of preliminary injunction prayed for. This petition is now the case before Us. Upon instructions by respondent Commission on Elections, on December 28, 1966, the envelopes that were taken from the ballot boxes were opened and the election returns were taken out and their contents examined and recorded by a committee appointed by the Commission. This was done in a formal hearing with notice to the parties concerned. Respondent Pablo C. Sanidad filed his answer to instant petition on January 5, 1966, admitting some of the allegations and denying others, and maintaining that the Commission on Elections had acted well within the bounds of its authority in issuing the order of December 22, 1965. Respondent Commission on Elections also filed its answer on January 5, 1966, maintaining that it has authority under the law to order the opening of the ballot boxes as stated in its resolution of December 22, 1965. In the meantime, on the basis of the discrepancies in the entries of the votes for the candidates for Representative, between the election returns taken out of the ballot boxes that were opened by order of the Commission of Elections and the election returns submitted by the Provincial Treasurer of Ilocos Sur to the Provincial Board of Canvassers of Ilocos Sur, respondent Pablo C. Sanidad filed a petition with the Court of First Instance of Ilocos Sur, docketed as Election Case No. 16-N, for a recount of the votes in all the precincts of Candon, Sta. Cruz and Santiago, pursuant to the provisions of Section 163 of the Revised Election Code. On February 14, 1966, petitioner filed before this Court in urgent motion, in this case, praying for the issuance of an order enjoining the Court of First Instance of Ilocos Sur (Branch II-Narvacan) from further proceeding with Election Case No. 16-N, abovementioned, pending final decision of the instance case, upon the ground that the recount of the ballots in that case in the court below would

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render the instant case moot and academic. This motion was denied by this Court in a resolution dated February 17, 1966. The principal issue in the present case revolves on the of the resolution of the respondent Commission of Elections, dated December 22, 1965, which orders the opening of the ballot boxes used in all the precincts in the municipalities of Candon, Sta. Cruz and Santiago, Ilocos Sur, during the elections of November 9, 1965 for the purpose of retrieving therefrom the corresponding election returns, copies for the ballot box, "to enable the aggrieved party to establish discrepancy between copies of the election returns provided by law in the aforementioned precincts for the purpose of obtaining judicial remedy under the provisions of Section 163 of the Revised Election Code." It is the stand of the petitioner that respondent Commission on Elections is without jurisdiction to issue, or has acted in excess of jurisdiction in issuing, the resolution in question, so that said resolution is null and void and should not be given legal force and effect. The petitioner contends that under Section 157 of the Revised Election Code the Commission on Elections has authority to order the opening of the ballot boxes "only in connection with an investigation conducted for the purpose of helping the prosecution of any violation of the election laws or for the purely administrative purpose but not when the sole purpose is, as in this case, to assist a party in trying to win the election ...." The petitioner further, contends that "the mere fact that the copies of the returns in the precincts in question in the possession of the Liberal Party do not tally with the returns involving the same precincts in the possession of the Provincial Treasurer, the Commission of Elections and the Nacionalista Party as well does not legally support the validity of the resolution of the respondent Commission in question ...."2 We cannot sustain the stand of the petitioner. We believe that in issuing the resolution in question the Commission on Elections simply performed a function as authorized by the Constitution, that is, to "have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and ... exercise all other functions which may be conferred upon it by law." The Commission has the power to decide all administrative questions affecting elections, except the question involving the right to vote.3 This Court in a line of decisions has ruled that the Commission on Election has the power to investigate and act on the propriety or legality of the canvass of election returns made by the board of canvassers. In the case of Albano vs. Arranz, L-19260, January 31, 1962, this Court, through Mr. Justice J.B.L. Reyes, held as follows: The suspension of the proclamation of the winning candidate pending an inquiry into irregularities brought to the attention of the Commission on Elections was well within its administrative jurisdiction, in view of the exclusive authority conferred upon it by the Constitution (Art. X ) for the administration and enforcement of all laws relative to elections. The Commission certainly had the right to inquire whether or not discrepancies existed between the various copies of election returns for the precincts in question, and suspend the canvass all the meantime so the parties could ask for a recount in case of variance ....' What the respondent Commission on Elections did in the case now before Us is just what is contemplated in the abovequoted ruling of this Court. The power of the Commission on Elections in this respect is simply administrative and supervisory — intended to secure the proclamation of the winning candidate based on the true count of the votes cast. When the Commission on Elections exercises this power the purpose is not for the Commission to help a candidate win the election but to bring about the canvass of the true results of the elections as certified by the boards of election inspectors in every precinct. The object of the canvass is to determine the result of the elections based on the official election returns. In order that the result of the canvass would reflect the true expression

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of the people's will in the choice of their elective officials, the canvass must be based on true, genuine, correct, nay untampered, election returns. It is in this proceedings that the Commission on Elections exercises its supervisory and administrative power in the enforcement of laws relative to the conduct of elections, by seeing to it that the canvass is based on the election returns as actually certified by the members of the board of inspectors. Once the Commission on Elections is convinced that the elections returns in the hands of the board of canvassers do not constitute the proper basis in ascertaining the true result of the elections, it should be its concern, nay its duty, to order the taking of such steps as may be necessary in order that the proper basis for the canvass is obtained or made available. The election law requires the board of inspectors to prepare four copies of the election return in each precinct — one to be deposited in the ballot box, one to be delivered to the municipal treasurer, one to be sent to the provincial treasurer, and one to be sent to the Commission on Elections. In the case of the canvass of the election returns for candidates for provincial or national offices, the election returns received by the provincial treasurer from the boards of inspectors are used. It is the duty of the provincial treasurer to turn over to the provincial board of canvassers the election returns received by him from the boards of inspectors. If the Commission on Elections is duly informed and it so finds, in appropriate proceedings, that the election returns in the hands of the provincial treasurer are tampered, then the Commission should afford the candidate adversely affected by the tampering an opportunity to show that there exist authentic copies of the same election returns which are not tampered. A recourse may be had to the copies received by the Commission on Elections and to the copies received by the municipal treasurer. If it is shown, that the copies in the hands of the Commission on Elections and of the municipal treasurer are similarly tampered as the copies in the hands of the provincial treasurer, then it becomes evident that all the three copies of the election returns outside the ballot box do not constitute a reliable basis for a canvass. The only copies left to be checked, whether they are also tampered or not, are the ones inside the ballot boxes. Certainly, the Commission on Elections, in the exercise of its power to administer and enforce the laws relative to the conduct of elections, may order the opening of the ballot boxes to ascertain whether the copy inside each ballot box is also tampered like the three copies outside the ballot box, corresponding to each precinct. The Commission on Elections may do this on its own initiative, or upon petition by the proper party. Once it is found that the copy of the election return inside the ballot box is untampered, the Commission on Elections would then have accomplished two things, namely: (1) secured a basis for the prosecution for the violation of the laws relative to elections, and (2) afforded the party aggrieved by the alteration of the election returns outside the ballot box a basis for a judicial recount of the votes as provided for in Section 163 of the Revised Election Code. Thus, the Commission on Elections has thereby made available the proper and reliable basis for the canvass of the votes that will lead to the proclamation by the board of canvassers of the true winner in the elections. In so doing the Commission on Elections, as we have said, had performed its constitutional duty of administering and enforcing the laws relative to the conduct of elections with a view to promoting clean and honest elections — the very purpose for which the Commission on Elections was created by constitutional mandate. In the case now before Us, the Commission on Elections issued the questioned resolution "after hearing the arguments of the petitioner and the opposition thereto and considering that it has been clearly established that the copies of the election returns for the Municipal Treasurer, for the Commission on Elections and for the Provincial Treasurer for the municipality of Sta. Cruz have uniform alteration in the entries of the votes cast for representative showing different number of votes compared with the Liberal Party copies, while the copies of the election returns for the Commission of Elections and the Provincial Treasurer for the municipalities of Candon and Santiago have likewise uniform alterations and showing different numbers compared with the Liberal Party copies ..."5Indeed,

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in the face of this finding by the Commission on Elections, which indicates a clear violation of the election law, and which indicates an attempt to procure the proclamation of the winner in the elections for Representative in the second congressional district of Ilocos Sur by the use of tampered election returns, can the Commission on Elections be remiss in the performance of its duties as a constitutional body committed with the exclusive charge of the enforcement and administration of all laws relative to the conduct of elections? The Revised Election Code gives to the Commission on Elections the direct and immediate supervision over provincial, municipal and city officials designated by law to perform duties relative to the conduct of elections — and included among these officials are members of the provincial board of canvassers.6The provincial board of canvassers is enjoined by law to canvass all the votes cast for Representatives on the basis of the election returns produced by the provincial treasurer.7The Commission on Elections has a duty to enforce this law and it has the duty to see to it that the election returns to be used for canvassing must be genuine and authentic, not falsified or tampered with. Where the election returns produced by the provincial treasurer have been shown to have been tampered, and all the other copies outside the ballot boxes have also been shown to have been tampered or falsified, it is certainly within the power of the Commission on Elections to issue such order as would ascertain the existence of the genuine, authentic and untampered election returns, and thus open the way for the summary recount of the votes, in accordance with law, for the purposes only of the canvass of the votes and the proclamation of the candidate found to have obtained the highest number of votes. In the case now before Us, it is found by the Commission on Elections that no other copies can be had except those deposited in the ballot boxes. Hence, the necessity for the Commission to order the retrieving of the copies of the election returns from the ballot boxes. An order to this effect does not affect the right to vote or the validity of any vote cast, so that it is perfectly within the power of the Commission on Elections to issue such an order in the exercise of its exclusive power to administer and enforce the laws relative to the conduct of elections. It would indeed be absurd to say that the Commission on Elections has a legal duty to perform and at the same time it is denied the necessary means to perform said duty. The purpose of the Revised Election Code is to protect the integrity of elections and to suppress all evils that may violate its purity and defeat the will of the voters.8The purity of the elections is one of the most fundamental requisites of popular government.9The Commission on Elections, by constitutional mandate, must do everything in its power to secure a fair and honest canvass of the votes cast in the elections. In the performance of its duties, the Commission must be given a considerable latitude in adopting means and methods that will insure the accomplishment of the great objective for which it was created — to promote free, orderly, and honest elections. The choice of means taken by the Commission on Elections, unless they are clearly illegal or constitute grave abuse of discretion, should not be interfered with.10Technicalities, which are not conducive to free, orderly and honest elections, but on the contrary may defeat the will of the sovereign people as expressed in their votes, should not be allowed to hamper the Commission on Elections in the performance of its duties. To sustain the petitioner in the present case is to deny the Commission on Elections the power to retrieve the copies of the election returns from the ballot boxes in order that the true number of votes cast for a candidate may be known and thus permit a canvass on the basis of election returns that are patently falsified. We cannot, and We must not, sanction the stand of petitioner. As We have adverted to, the Commission on Elections has the power to inquire whether there exist discrepancies among the various copies of the election returns.11Of all the copies prepared by the board of inspectors the copy least susceptible to being tampered with is the one deposited in the ballot box. Where the three copies outside the ballot boxes appear to have been uniformly altered, there is no plausible reason why the copy deposited in the ballot box may not be used to determine whether discrepancies exist in the various copies. Inasmuch as the Commission on Elections has the right to determine whether said discrepancies exist, it must also have the right to consult said returns, which

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cannot be done unless the ballot boxes are opened. It is noteworthy that the Revised Election Code does not provide that it is the courts that have the power to order the opening of the ballot box in a situation like this. Section 157 of the Revised Election Code, on which petitioner herein relies in support of his stand in the present case, authorizes the opening of the ballot box whenever it is the subject of an official investigation. It provides: The municipal treasurer shall keep the boxes unopened in his possession in a secure place and under his responsibility for three months, unless they are the subject of an official investigation, or a component court or tribunal shall demand them sooner, or the competent authority shall order their preservation for a longer time in connection with any pending contest or investigation. Under this section the ballot boxes may be opened in case there is an election contest. They may also be opened even if there is no election contest when their contents have to be used as evidence in the prosecution of election frauds.12Moreover, they may be opened when they are the subject of any official investigation which may be ordered by a competent court or other competent authority.13The "competent authority" must include the Commission on Elections which is charged with the administration and enforcement of the laws relative to the conduct of elections. In the instant case the Commission on Elections found that it has been clearly established that the election returns outside the ballot boxes, in all the precincts in the municipalities of Candon, Santiago and Sta. Cruz, have been tampered with. It is within the power of the Commission to order the investigation of that apparent anomaly that has connection with the conduct of elections. The investigation may be in connection with the prosecution for the violations of the election laws and at the same time to ascertain the condition of the election returns inside the ballot boxes as compared with the election returns outside the ballot boxes, for the same precincts. The opening of the ballot boxes may, therefore, be prayed for by a candidate who is prejudiced by the apparent falsification of the election returns outside the ballot boxes, and in ordering the opening of the ballot boxes the purpose of the Commission is not to help a particular candidate win an election but to properly administer and enforce the laws relative to the conduct of elections. From what has been said We hold that the order of December 22, 1965, being questioned by the petitioner in the present case, was perfectly within the power of the Commission on Elections to issue. Wherefore, the petition for certiorari and prohibition in the present case is dismissed, with costs against the petitioner. It is so ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Sanchez and Castro, JJ., concur.

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Republic of the Philippines SUPREME COURT Manila

EN BANC

H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. BAGARES, ALLAN JONES F. LARDIZABAL, GILBERT T. ANDRES, IMMACULADA D. GARCIA, ERLINDA T. MERCADO, FRANCISCO A. ALCUAZ, MA. AZUCENA P. MACEDA, and ALVIN A. PETERS, Petitioners, - versus COMMISSION ON ELECTIONS, Represented by HON. CHAIRMAN JOSE MELO, COMELEC SPECIAL BIDS and AWARDS COMMITTEE, represented by its CHAIRMAN HON. FERDINAND RAFANAN, DEPARTMENT OF BUDGET and MANAGEMENT, represented by HON. ROLANDO ANDAYA, TOTAL INFORMATION

G.R. No. 188456 Present: PUNO, C.J., QUISUMBING,* YNARES-SANTIAGO, CARPIO, CORONA, CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, and ABAD, JJ.

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MANAGEMENT CORPORATION SMARTMATIC INTERNATIONAL CORPORATION, Respondents.

and

Promulgated: September 10, 2009

PETE QUIRINO-QUADRA, Petitioner-in-Intervention. SENATE OF THE PHILIPPINES, represented by its President, JUAN PONCE ENRILE, Movant-Intervenor.

x-----------------------------------------------------------------------------------------x DECISION

VELASCO, JR., J.:

In a democratic system of government, the peoples voice is sovereign. Corollarily, choosing through the ballots the men and women who are to govern the country is perhaps the highest exercise of democracy. It is thus the interest of the state to insure honest, credible and peaceful elections, where the sanctity of the votes and the secrecy of the ballots are safeguarded, where the will of the electorate is not frustrated or undermined. For when the popular will itself is subverted by election irregularities, then the insidious seeds of doubt are sown and the ideal of a peaceful and smooth transition of power is placed in jeopardy. To automate, thus breaking away from a manual system of election, has been viewed as a significant step towards clean and credible elections, unfettered by the travails of the long wait and cheating that have marked many of our electoral exercises.

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The Commission on Elections (Comelec), private respondents, the National Computer Center and other computer wizards are confident that nationwide automated elections can be successfully implemented. Petitioners and some skeptics in the information technology (IT) industry have, however, their reservations, which is quite understandable. To them, the automated election system and the untested technology Comelec has chosen and set in motion are pregnant with risks and could lead to a disastrous failure of elections. Comelec, they allege, would not be up to the challenge. Cheating on a massive scale, but this time facilitated by a machine, is perceived to be a real possibility. In this petition for certiorari, prohibition and mandamus with prayer for a restraining order and/or preliminary injunction, petitioners H. Harry L. Roque, Jr., et al., suing as taxpayers and concerned citizens, seek to nullify respondent Comelecs award of the 2010 Elections Automation Project (automation project) to the joint venture of Total Information Management Corporation (TIM) and Smartmatic International Corporation (Smartmatic)[1] and to permanently prohibit the Comelec, TIM and Smartmatic from signing and/or implementing the corresponding contract-award.

By Resolution[2] of July 14, 2009, the Court directed the respondents as well as the University of the Philippines (UP) Computer Center, National Computer Center (NCC) and Information Technology Foundation of the Philippines (Infotech, hereinafter) to submit their collective or separate comments to the petition on or before July 24, 2009.Before any of the comments could actually be filed, Atty. Pete Quirino-Quadra sought leave to intervene. In another resolution, the Court allowed the intervention and admitted the corresponding petition-in-intervention.[3]

On July 29, 2009, the Court heard the principal parties in oral arguments which was followed by the submission of their and the resource persons instructive, albeit clashing, memoranda. The Senate, through the Senate President, would later join the fray via a Motion for Leave to Intervene. In a Resolution of August 25, 2009, the Court admitted the Senates comment-in-intervention.

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From the petition, the separate comments thereon, with their respective annexes, and other pleadings, as well as from admissions during the oral arguments, the Courtgathers the following facts:

On December 22, 1997, Congress enacted Republic Act No. (RA) 8436 authorizing the adoption of an automated election system (AES) in the May 11, 1998 national and local elections and onwards. The 1998, 2001, and 2004 national and local polls, however, came and went but purely manual elections were still the order of the day. On January 23, 2007, the amendatory RA 9369[4] was passed authorizing anew the Comelec to use an AES. Of particular relevance are Sections 6 and 10 of RA 9369originally Secs. 5 and 8, respectively of RA 8436, as amendedeach defining Comelecs specific mandates insofar as automated elections are concerned. The AES was not utilized in the May 10, 2000 elections, as funds were not appropriated for that purpose by Congress and due to time constraints.

RA 9369 calls for the creation of the Comelec Advisory Council[5] (CAC). CAC is to recommend, among other functions, the most appropriate, applicable and cost-effective technology to be applied to the AES.[6] To be created by Comelec too is the Technical Evaluation Committee (TEC)[7] which is tasked to certify, through an established international certification committee, not later than three months before the elections, by categorically stating that the AES, inclusive of its hardware and software components, is operating properly and accurately based on defined and documented standards.[8]

In August 2008, Comelec managed to automate the regional polls in the Autonomous Region of Muslim Mindanao[9] (ARMM), using direct recording electronics (DRE) technology[10] in the province of Maguindanao; and the optical mark reader/recording (OMR) system, particularly the Central Count Optical Scan (CCOS),[11] in the rest of ARMM.[12] What scores hailed as successful automated ARMM 2008 elections paved the way for Comelec, with some prodding from senators,[13] to prepare for a nationwide computerized run for the 2010 national/local polls, with the many lessons learned from the ARMM experience influencing, according to the NCC, the technology selection for the 2010 automated elections.[14]

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Accordingly, in early March 2009, the Comelec released the Request for Proposal (RFP), also known as Terms of Reference (TOR), for the nationwide automation of the voting, counting, transmission, consolidation and canvassing of votes for the May 10, 2010 Synchronized National and Local Elections. What is referred to also in the RFP and other contract documents as the 2010 Elections Automation Project (Automation Project) consists of three elaborate components, as follows:

Component 1: Paper-Based AES.[15] 1-A. Election Management System (EMS); 1-B Precinct-Count Optic Scan (PCOS) [16] System and 1-C. Consolidation/Canvassing System (CCS);

Component 2: Provision for Electronic Transmission of Election Results using Public Telecommunications Network; and

Component 3: Overall Project Management

And obviously to address the possibility of systems failure, the RFP required interested bidders to submit, among other things: a continuity plan[17] and a back-up plan.[18]

Under the two-envelope system designed under the RFP,[19] each participating bidder shall submit, as part of its bid, an Eligibility Envelope[20] that should inter aliaestablish the bidders eligibility to bid. On the other hand, the second envelope, or the Bid Envelope itself, shall contain two envelopes that, in turn, shall contain the technical proposal and the financial proposal, respectively.[21]

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Subsequently, the Comelec Special Bids and Awards Committee (SBAC), earlier constituted purposely for the aforesaid project, caused the publication in different newspapers of the Invitation to Apply for Eligibility and to Bid[22] for the procurement of goods and services to be used in the automation project.[23] Meanwhile, Congress enacted RA 9525 appropriating some PhP 11.3 billion as supplemental budget for the May 10, 2010 automated national and local elections.

Of the ten (10) invitation-responding consortia which obtained the bid documents, only seven (7) submitted sealed applications for eligibility and bids [24] which, per Bid Bulletin No. 24, were to be opened on a pre-set date, following the convening of the pre-bid conference. Under the RFP, among those eligible to participate in the bidding are manufacturers, suppliers and/or distributors forming themselves into a joint venture.

A joint venture is defined 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.[25]

Among the submitted bids was that of the joint venture (JV) of TIM and Smartmatic, the former incorporated under the Corporation Code of the Philippines. Smartmatic, on the other hand, was organized under the laws of Barbados.[26] For a stated amount, said JV proposed to undertake the whole automation project, inclusive of the delivery of 82,200 PCOS machines. After the conclusion of the eligibility evaluation process, only three consortia[27] were found and thus declared as eligible. Further on, following the opening of the passing bidders

Bid Envelope and evaluating the technical and financial proposals therein contained, the SBAC, per its Res. No. 09-001, s.-2009, declared the above-stated bid of the JV of TIM-Smartmatic as the single complying calculated bid.[28] As required by the RFP, the bid envelope contained an outline of the joint ventures back-up and continuity or contingency plans,[29] in case of a systems breakdown or any such eventuality which shall result in the delay, obstruction or nonperformance of the electoral process.

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After declaring TIM-Smartmatic as the best complying bidder, the SBAC then directed the joint venture to undertake post-qualification screening, and its PCOS prototype machinesthe Smarmatic Auditable Electronic System (SAES) 1800to undergo end-to-end[30] testing to determine compliance with the pre-set criteria.

In its Memorandum of June 01, 2009, on the Subject: Systems Evaluation Consolidated Report and Status Report on the Post-Qualification Evaluation Procedures, the SBAC Technical Working Group (TWG) stated that it was undertaking a 4-day (May 27 to May 30, 2009) test evaluation of TIM and Smartmatics proposed PCOS project machines. Its conclusion: The demo systems presented PASSED all tests as required in the 26-item criteria specified in the [RFP] with 100% accuracy rating.[31] The TWG also validated the eligibility, and technical and financial qualifications of the TIM-Smartmatic joint venture.

On June 9, 2009, Comelec, upon the recommendation of its SBAC, the CAC and other stakeholders, issued Resolution No. (Res.) 8608[32] authorizing the SBAC to issue, subject to well-defined conditions, the notice of award and notice to proceed in favor of the winning joint venture.

Soon after, TIM wrote Comelec expressing its desire to quit the JV partnership. In time, however, the parties were able to patch up what TIM earlier described as irreconcilable differences between partners.

What followed was that TIM and Smartmatic, pursuant to the Joint Venture Agreement (JVA),[33] caused the incorporation of a joint venture corporation (JVC) that would enter into a contract with the Comelec. On July 8, 2009, the Securities and Exchange Commission issued a certificate of incorporation in favor of Smartmatic TIM Corporation. Two days after, or on July 10, 2009, Comelec and Smartmatic TIM Corporation, as provider, executed a contract[34] for the lease of goods and services under the contract for the contract amount of PhP 7,191,484,739.48,

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payable as the Goods and Services are delivered and/or progress is made in accordance [with pre-set] Schedule of Payments.[35] On the same date, a

Notice to Proceed[36] was sent to, and received by, Smartmatic TIM Corporation.

Meanwhile, or on July 9, 2009, petitioners interposed the instant recourse which, for all intents and purposes, impugns the validity and seeks to nullify the July 10, 2009 Comelec-Smartmatic-TIM Corporation automation contract adverted to. Among others, petitioners pray that respondents be permanently enjoined from implementing the automation project on the submission that: PUBLIC RESPONDENTS COMELEC AND COMELEC-SBAC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AWARDING THE 2010 ELECTIONS AUTOMATION PROJECT TO PRIVATE RESPONDENTS TIM AND SMARTMATIC FOR THE FOLLOWING REASONS: x x x COMELEC DID NOT CONDUCT ANY PILOT TESTING OF THE x x x PCOS MACHINES OFFERED BY PRIVATE RESPONDENTS SMARTMATIC AND TIM, IN VIOLATION OF [RA] 8436 (AS AMENDED BY [RA] 9369) THE [PCOS] MACHINES [THUS] OFFERED BY PRIVATE RESPONDENTS x x x DO NOT SATISFY THE MINIMUM SYSTEM CAPABILITIES SET BY [RA] NO. 8436 (AS AMENDED BY [RA] 9369). PRIVATE RESPONDENTS x x x DID NOT SUBMIT THE REQUIRED DOCUMENTS DURING THE BIDDING PROCESS THAT SHOULD ESTABLISH THE DUE EXISTENCE, COMPOSITION, AND SCOPE OF THEIR JOINT VENTURE, IN VIOLATION OF THE SUPREME COURTS HOLDING IN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, vs. COMELEC (G.R. No. 159139, Jan. 13, 2004). THERE WAS NO VALID JOINT VENTURE AGREEMENT [JVA] BETWEEN PRIVATE RESPONDENTS SMARTMATIC AND TIM DURING THE BIDDING, IN VIOLATION OF THE SUPREME COURTS HOLDING IN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES vs. COMELEC x x x WHICH REQUIRES A JOINT VENTURE TO INCLUDE A COPY OF ITS [JVA] DURING THE BIDDING.

THE ALLEGED JOINT VENTURE COMPOSED OF PRIVATE RESPONDENTS SMARTMATIC AND TIM, DOES NOT SATISFY THE SUPREME COURTS DEFINITION OF A JOINT VENTURE IN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES vs. COMELEC x x x WHICH REQUIRES A COMMUNITY OF INTEREST IN THE PERFORMANCE OF THE SUBJECT MATTER.

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Filed as it was before contract signing, the petition understandably did not implead Smartmatic TIM Corporation, doubtless an indispensable party to these proceedings, an incident that did not escape Comelecs notice.[37]

As a preliminary counterpoint, either or both public and private respondents question the legal standing or locus standi of petitioners, noting in this regard that the petition did not even raise an issue of transcendental importance, let alone a constitutional question.

As an additional point, respondents also urge the dismissal of the petition on the ground of prematurity, petitioners having failed to avail themselves of the otherwise mandatory built-in grievance mechanism under Sec. 55 in relation to Sec. 58 of RA 9184, also known as the Government Procurement Reform Act, as shall be discussed shortly.

PROCEDURAL GROUNDS

The Court is not disposed to dismiss the petition on procedural grounds advanced by respondents.

Locus Standi and Prematurity

It is true, as postulated, that to have standing, one must, as a rule, establish having suffered some actual or threatened injury as a result of the alleged illegal government conduct; that the injury is fairly traceable to the challenged action; and that the injury is likely to be redressed by a favorable action. [38] The prescription on standing, 59 of 283

however, is a matter of procedure. Hence, it may be relaxed, as the Court has often relaxed the rule for non-traditional plaintiffs, like ordinary citizens and taxpayers, when the public interest so requires, such as when the matter is of transcendental importance, of overarching significance to society, or of paramount public interest.[39] As we wrote in

Chavez v. PCGG,[40] where

issues of public importance are presented, there is no necessity to show that the suitor has experienced or is in actual danger of suffering direct and personal injury as the requisite injury is assumed.

Petitioners counsel, when queried, hedged on what specific constitutional proscriptions or concepts had been infringed by the award of the subject automation project to Smartmatic TIM Corporation, although he was heard to say that our objection to the system is anchored on the Constitution itself a violation [sic] of secrecy of voting and the sanctity of the ballot.[41] Petitioners also depicted the covering automation contract as constituting an abdication by the Comelec of its election-related mandate under the Constitution, which is to enforce and administer all laws relative to the conduct of elections. Worse still, according to the petitioners, the abdication, with its antidummy dimension, is in favor of a foreign corporation that will be providing the hardware and software requirements.[42] And when pressed further, petitioners came out with the observation that, owing in part to the sheer length of the ballot, the PCOS would not comply with Art. V, Sec. 2 of the Constitution[43] prescribing secrecy of voting and sanctity of the ballot.[44]

There is no doubt in our mind, however, about the compelling significance and the transcending public importance of the one issue underpinning this petition: the successand the far-reaching grim implications of the failureof the nationwide automation project that will be implemented via the challenged automation contract.

The doctrinal formulation may vary, but the bottom line is that the Court may except a particular case from the operations of its rules when the demands of justice so require.[45] Put a bit differently, rules of procedure are merely tools designed to facilitate the attainment of justice.[46] Accordingly, technicalities and procedural barriers should not be allowed to stand in the way, if the ends of justice would not be subserved by a rigid adherence to the rules of procedure.[47] This postulate on procedural technicalities applies to matters of

locus standi and the presently invoked principle of hierarchy of courts, which 60 of 283

discourages direct resort to the Court if the desired redress is within the competence of lower courts to grant. The policy on the hierarchy of courts, which petitioners indeed failed to observe, is not an iron-clad rule. For indeed the Court has full discretionary power to take cognizance and assume jurisdiction of special civil actions for certiorari and mandamus filed directly with it for exceptionally compelling reasons[48]or if warranted by the nature of the issues clearly and specifically raised in the petition.[49]

The exceptions that justify a deviation from the policy on hierarchy appear to obtain under the premises. The Court will for the nonce thus turn a blind eye to the judicial structure intended, first and foremost, to provide an orderly dispensation of justice.

Hierarchy of Courts

At this stage, we shall dispose of another peripheral issue before plunging into the core substantive issues tendered in this petition.

Respondents contend that petitioners should have availed themselves of the otherwise mandatory protest mechanism set forth in Sections 55 and 58 of the procurement law (RA 9184) and the counterpart provisions found in its Implementing Rules and Regulations (IRR)-A before seeking judicial remedy. Insofar as relevant, Sec. 55 of RA 9184 provides that decisions of the bids and awards committee (BAC) in all stages of procurement may be protested, via a verified position paper, to the head of the procuring agency. On the other hand, the succeeding Sec. 58 states that court action may be resorted to only after the protest contemplated in Sec. 55 shall have been completed. Petitioners except. As argued, 61 of 283

the requirement to comply with the protest mechanism, contrary to what may have been suggested in Infotech, is imposed on the bidders.[50]

Petitioners position is correct. As a matter of common sense, only a bidder is entitled to receive a notice of the protested BAC action. Only a losing bidder would be aggrieved by, and ergo would have the personality to challenge, such action. This conclusion finds adequate support from the ensuing provisions of the aforesaid IRRA:

55.2. The verified position paper shall contain the following documents: a) The name of bidder; b) The office address of the bidder x x x.

SUBSTANTIVE ISSUES

We now turn to the central issues tendered in the petition which, in terms of subject matter, revolved around two concerns, viz: (1) the Joint Venture Agreement (JVA) of Smartmatic and TIM; and (2) the PCOS machines to be used. Petitioners veritably introduced another issue during the oral arguments, as amplified in their memorandum, i.e. the constitutionality and statutory flaw of the automation contract itself. The petition-in-intervention confined itself to certain features of the PCOS machines.

The Joint Venture Agreement: Its Existence and Submission

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The issue respecting the existence and submission of the TIM-Smartmatic JVA does not require an extended disquisition, as repairing to the records would readily provide a satisfactory answer. We note in fact that the petitioners do not appear to be earnestly pressing the said issue anymore, as demonstrated by their counsels practically cavalier discussion thereof during the oral argument. When reminded, for instance, of private respondents insistence on having in fact submitted their JVA dated April 23, 2009, petitioners counsel responded as follows: We knew your honor that there was, in fact, a joint venture agreement filed. However, because of the belated discovery that [there] were irreconcilable differences, we then made a view that this joint venture agreement was a sham, at best pro forma because it did not contain all the required stipulations in order to evidence unity of interest x x x.[51]

Indeed, the records belie petitioners initial posture that TIM and Smartmatic, as joint venture partners, did not include in their submitted eligibility envelope a copy of their JVA. The SBACs Post Qualification Evaluation Report (Eligibility) on TIM-Smartmatic, on page 10, shows the following entry: Valid Joint Venture Agreement, stating among things, that the members are jointly and severally liable for the whole obligation, in case of joint venture Documents verified compliance.[52]

Contrary to what the petitioners posit, the duly notarized JVA, as couched, explained the nature and the limited purpose[53] of the joint venture and expressly defined, among other things, the composition, scope, and the 60-40 capital structure of the aggroupment.[54] The JVA also contains provisions on the management[55] and division of profits.[56] Article 3[57] of the JVA delineates the respective participations and responsibilities of the joint venture partners in the automation project.

Given the foregoing perspective, the Court is at a loss to understand how petitioners can assert that the Smartmatic-TIM consortium has failed to prove its 63 of 283

joint venture existence and/or to submit evidence as would enable the Comelec to know such items as who it is dealing with, which between the partners has control over the decision-making process, the amount of investment to be contributed by each partner, the parties shares in the profits and like details. Had petitioners only bothered to undertake the usual due diligence that comes with good judgment and examined the eligibility envelope of the Smartmatic-TIM joint venture, they would have discovered that their challenge to and arguments against the joint venture and its JVA have really no factual basis.

It may be, as petitioners observed, that the TIM-Smartmatic joint venture remained an unincorporated aggroupment during the bid-opening and evaluation stages. It ought to be stressed, however, that the fact of non-incorporation was without a vitiating effect on the validity of the tender offers. For the bidding ground rules, as spelled out primarily in the RFP and the clarificatory bid bulletins, does not require, for bidding purposes, that there be an incorporation of the bidding joint ventures or consortiums. In fact, Bid Bulletin Nos. 19 and 20 recognize the existence and the acceptability of proposals of unincorporated joint ventures. In response to a poser, for example, regarding the 60% Filipino ownership requirement in a joint venture arrangement, the SBAC, in its Bid Bulletin No. 22, stated: In an unincorporated joint venture, determination of the required Filipino participation may be made by examining the terms and conditions of the [JVA] and other supporting financial documents submitted by the joint venture. (Emphasis ours.) Petitioners, to be sure, have not shown that incorporation is part of the pass/fail criteria used in determining eligibility.

Petitioners have made much of the Courts ruling in Information Technology Foundation of the Philippines [Infotech] v. Comelec,[58] arguing in relation thereto that the partnership of Smartmatic and TIM does not meet the Courts definition of a joint venture which requires community of interest in the performance of the subject matter. 64 of 283

Petitioners invocation of Infotech is utterly misplaced. Albeit Infotech and this case are both about modernizing the election process and bidding joint ventures, the relevant parallelism ends there. Cast as they are against dissimilar factual milieu, one cannot plausibly set Infotech side with and contextually apply to this case the ratio of Infotech. Suffice it to delve on the most glaring of differences. In Infotech, the winning bid pertained to the consortium of Mega Pacific, a purported joint venture. Extant records, however, do not show the formation of such joint venture, let alone its composition. To borrow from the ponencia of then Justice, later Chief Justice, Artemio Panganiban, there is no sign whatsoever of any [JVA], consortium agreement [or] memorandum agreement x x x executed among the members of the purported consortium.[59] There was in fine no evidence to show that the alleged joint venture partners agreed to constitute themselves into a single entity solidarily responsible for the entirety of the automation contract. Unlike the purported Mega Pacific consortium in

Infotech, the existence in this case of the bidding joint venture of Smarmatic and TIM is properly documented and spread all over the bid documents. And to stress, TIM and Smartmatic, in their JVA, unequivocally agreed between themselves to perform their respective undertakings. And over and beyond their commitments to each other, they undertook to incorporate, if called for by the bidding results, a JVC that shall be solidarily liable with them for any actionable breach of the automation contract.

In Infotech, the Court chastised the Comelec for dealing with an entity, the full identity of which the poll body knew nothing about. Taking a cue from this holding, petitioners tag the TIM-Smartmatic JVA as flawed and as one that would leave the Comelec hanging for the non-inclusion, as members of the joint venture, of three IT providers. The three referred to are Jarltech International, Inc. (Jarltech), a subsidiary of Smartmatic that manufactures the Smartmatic voting machines; Dominion Voting Systems (Domino), the inventor of said PCOS machines; and 2GO Transportation System Corporation (2GO), the subcontractor responsible for the distribution of the PCOS machines throughout the country. 65 of 283

Petitioners beef against the TIM-Smartmatic JVA is untenable. First off, the Comelec knows the very entities whom they are dealing with, which it can hold solidary liable under the automation contract, should there be contract violation. Secondly, there is no requirement under either RA 8436, as amended, or the RFP, that all the suppliers, manufacturers or distributors involved in the transaction should be part of the joint venture. On the contrary, the Instruction to Biddersas petitioners themselves admit[60]allows the bidder to subcontract portions of the goods or services under the automation project.[61]

To digress a bit, petitioners have insisted on the non-existence of a bona fide JVA between TIM and Smarmatic. Failing to gain traction for their indefensible posture, they would thrust on the Court the notion of an invalid joint venture due to the noninclusion of more companies in the existing TIM-Smartmatic joint venture. The irony is not lost on the Court. This brings us to the twin technical issues tendered herein bearing on the PCOS machines of Smartmatic.

At its most basic, the petition ascribes grave abuse of discretion to the Comelec for, among other things, awarding the automation project in violation of RA 8436, as amended. Following their line, no pilot test of the PCOS technology Smartmatic-TIM offered has been undertaken; hence, the Comelec cannot conduct a nationwide automation of the 2010 polls using the machines thus offered. Hence, the contract award to Smartmatic-TIM with their untested PCOS machines violated RA 8436, as amended by RA 9369, which mandates that with respect to the May 2010 elections and onwards, the system procured must have been piloted in at least 12 areas referred to in Sec. 6 of RA 8436, as amended. What is more, petitioners assert, private respondents PCOS machines do not satisfy the minimum system capabilities set by the same law envisaged to ensure transparent and credible voting, 66 of 283

counting and canvassing of votes. And as earlier narrated, petitioners would subsequently add the abdication angle in their bid to nullify the automation contract.

Pilot Testing Not Necessary

Disagreeing, as to be expected, private respondents maintain that there is nothing in the applicable law requiring, as a pre-requisite for the 2010 election automation project award, that the prevailing bidders automation system, the PCOS in this case, be subjected to pilot testing. Comelec echoes its co-respondents stance on pilot testing, with the added observation that nowhere in the statutory provision relied upon are the words pilot testing used.[62] The Senates position and its supporting arguments match those of private respondents.

The respondents thesis on pilot testing and the logic holding it together are well taken. There can be no argument about the phrase pilot test not being found in the law. But does it necessarily follow that a pilot test is absolutely not contemplated in the law? We repair to the statutory provision petitioners cited as requiring a pilot run, referring to Sec. 6 of RA 8436, as amended by RA 9369, reading as follows: Sec. 5. Authority to use an Automated Election System.- To carry out the above stated-policy, the [Comelec], x x x is hereby authorized to use an automated election system or systems in the same election in different provinces, whether paper-based or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises: Provided, that for the regular national and local elections, which shall be held immediately after the effectivity of this Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to be chosen by the [Comelec]: Provided, further, That local government units whose officials have been the subject of administrative charges within sixteen (16) month prior to the May 14, 2007 elections shall not be chosen. Provided, finally, That no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. The term local government unit as used in this provision shall refer to a highly urbanized city or province. In succeeding regular national or local elections, the AES shall be implemented. (Emphasis and underscoring added.)

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RA 9369, which envisages an AES, be it paper-based or direct-recording electronic, took effect in the second week of February 2007 or thereabout.[63] The regular national and local elections referred to after the effectivity of this Act can be no other than the May 2007 regular elections, during which time the AES shall, as the law is worded, be used in at least two highly urbanized cities and provinces in Luzon, Visayas and Mindanao. The Court takes judicial notice that the May 2007 elections did not deploy AES, evidently due to the mix of time and funding constraints. To the petitioners, the underscored portion of the aforequoted Sec. 6 of RA 8436 is the pilot-testing provision that Comelec failed to observe. We are not persuaded.

From the practical viewpoint, the pilot testing of the technology in question in an actual, scheduled electoral exercise under harsh conditions would have been the ideal norm in computerized system implementation. The underscored proviso of Sec. 6 of RA 8436 is not, however, an authority for the proposition that the pilot testing of the PCOS in the 2007 national elections in the areas thus specified is an absolute must for the machines use in the 2010 national/local elections. The Court can concede that said proviso, with respect to the May 2007 elections, commands the Comelec to automate in at least 12 defined areas of the country. But the bottom line is that the required 2007 automation, be it viewed in the concept of a pilot test or not, is not a mandatory requirement for the choice of system in, or a prerequisite for, the full automation of the May 2010 elections.

As may be noted, Sec. 6 of RA 8436 may be broken into three essential parts, the first partaking of the nature of a general policy declaration: that Comelec is 68 of 283

authorized to automate the entire elections. The second part states that for the regular national and local elections that shall be held in May 2007, Comelec shall use the AES, with an option, however, to undertake automation, regardless of the technology to be selected, in a limited area or, to be more precise, in at least two highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to be chosen by the Comelec. On the other hand, the last part, phrased sans reference to the May 2007 elections, commands thus: [I]nsucceeding regular national or local elections, the [automated election system] shall be implemented. Taken in its proper context, the last part is indicative of the legislative intent for the May 2010 electoral exercise to be fully automated, regardless of whether or not pilot testing was run in the 2007 polls.

To argue that pilot testing is a condition precedent to a full automation in 2010 would doubtless undermine the purpose of RA 9369. For, as aptly observed during the oral arguments, if there was no political exercise in May 2007, the country would theoretically be barred forever from having full automation.

Sec. 6 of the amended RA 8436, as couched, therefore, unmistakably conveys the idea of unconditional full automation in the 2010 elections. A construal making pilot testing of the AES a prerequisite or condition sine qua non to putting the system in operation in the 2010 elections is tantamount to reading into said section something beyond the clear intention of Congress, as expressed in the provision itself. We reproduce with approval the following excerpts from the comment of the Senate itself: The plain wordings of RA 9369 (that amended RA 8436) commands that the 2010 elections shall be fully automated, and such full automation is not conditioned on pilot testing in the May 2007 elections. Congress merely gave COMELEC the flexibility to partially use the AES in some parts of the country for the May 2007 elections.[64]

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Lest it be overlooked, an AES is not synonymous to and ought not to be confused with the PCOS. Sec. 2(a) of RA 8436, as amended, defines an AES as a system using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing and transmission of election results, and other electoral processes. On the other hand, PCOS refers to a technology wherein an optical ballot scanner, into which optical scan paper ballots marked by hand by the voter are inserted to be counted.[65]What may reasonably be deduced from these definitions is that PCOS is merely one of several automated voting, counting or canvassing technologies coming within the term AES, implying in turn that the automated election system or technology that the Comelec shall adopt in future elections need not, as a matter of mandatory arrangement, be piloted in the adverted two highly urbanized cities and provinces.

In perspective, what may be taken as mandatory prerequisite for the full automation of the 2010 regular national/ local elections is that the system to be procured for that exercise be a technology tested either here or abroad. The ensuing Section 8 of RA 8436, as amended, says so.

SEC 12. Procurement of Equipment and Materials. To achieve the purpose of this Act, the Commission is authorized to procure, xxx, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities, and other services, from local or foreign sources xxx. With respect to the May 10, 2010 elections and succeeding electoral exercises, the system procured must have demonstrated capability and been successfully used in prior electoral exercise here or abroad. Participation in the 2007 pilot exercise shall not be conclusive of the systems fitness. (Emphasis supplied).

While the underscored portion makes reference to a 2007 pilot exercise, what it really exacts is that, for the automation of the May 2010 and subsequent elections, the PCOS or any AES to be procured must have demonstrated its capability and success in either a local or a foreign electoral exercise. And as expressly declared by the provision, participation in the 2007 electoral exercise is not a guarantee nor is it conclusive of the systems fitness. In this regard, the Court is inclined to agree with private respondents interpretation of the underscored portion in question: The 70 of 283

provision clearly conveys that the [AES] to be used in the 2010 elections need not have been used in the 2007 elections, and that the demonstration of its capability need not be in a previous Philippine election. Demonstration of the success and capability of the PCOS may be in an electoral exercise in a foreign jurisdiction.[66] As determined by the Comelec, the PCOS system had been successfully deployed in previous electoral exercises in foreign countries, such as Ontario, Canada; and New York, USA,[67] albeit Smartmatic was not necessarily the system provider. But then, RA 9369 does not call for the winning bidder of the 2010 automation project and the deploying entity/provider in the foreign electoral exercise to be one and the same entity. Neither does the law incidentally require that the system be first used in an archipelagic country or with a topography or a voting population similar to or approximating that of the Philippines.

At any event, any lingering doubt on the issue of whether or not full automation of the 2010 regular elections can validly proceed without a pilot run of the AES should be put to rest with the enactment in March 2009 of RA 9525,[68] in which Congress appropriated PhP 11.301 billion to automate the 2010 elections, subject to compliance with the transparency and accuracy requirements in selecting the relevant technology of the machines, thus:

Sec. 2. Use of Funds. x x x Provided, however, That disbursement of the amounts herein appropriated or any part thereof shall be authorized only in strict compliance with the Constitution, the provisions of [RA] No. 9369 and other election laws incorporated in said Act as to ensure the conduct of a free, orderly, clean, honest and credible election and shall adopt such measures that will guaranty transparency and accuracy in the selection of the relevant technology of the machines to be used on May 10, 2010 automated national and local elections. (Emphasis added.)

It may safely be assumed that Congress approved the bill that eventually became RA 9525, fully aware that the system using the PCOS machines were not piloted in the 2007 electoral exercise. The enactment of RA 9525 is to us a compelling indication that it was never Congress intent to make the pilot testing of a particular automated election system in the 2007 elections a condition precedent to its use or award of the 2010 Automation Project. The comment-in-intervention of the Senate says as much. Further, the highly charged issue of whether or not the 2008 ARMM electionscovering, as NCC observed, three conflict-ridden island provincesmay be 71 of 283

treated as substantial compliance with the pilot test requirement must be answered in the affirmative. No less than Senator Richard J. Gordon himself, the author of the law, said that the system has been tried and tested in the ARMM elections last year, so we have to proceed with the total implementation of the law.[69]

We note, though, the conflicting views of the NCC[70] and ITFP[71] on the matter. Suffice it to state at this juncture that the system used in the 2008 ARMM election exercise bears, as petitioners to an extent grudgingly admit, [72] a similarity with the PCOS. The following, lifted from the Comelecs comment, is to us a fair description of how the two systems (PCOS and CCOS) work and where the difference lies:

xxx the elections in the [ARMM] utilized the Counting Center Optical Scan (CCOS), a system which uses the Optical Mark Reader (OMR), the same technology as the PCOS.

Under the CCOS, the voters cast their votes by shading or marking the circles in the paper ballots which corresponded to the names of their chosen candidates [like in PCOS]. Thereafter, the ballot boxes were brought to the counting centers where they were scanned, counted and canvassed.

xxx Under the PCOS, the counting, consolidation and canvassing of the votes are done at the precinct level. The election results at the precincts are then electronically transmitted to the next level, and so on. xxx PCOS dispenses with the physical transportation of ballot boxes from the precincts to the counting centers.[73]

Moreover, it has been proposed that a partial automation be implemented for the May 2010 elections in accordance with Section 5 of RA 8436, as amended by RA 9369 instead of full automation. The Court cannot agree as such proposition has no basis in law. Section 5, as worded, does not allow for partial automation. In fact, Section 5 clearly states that the AES shall be implemented nationwide.[74] It behooves this Court to follow the letter and intent of the law for full automation in the May 2010 elections.

PCOS Meets Minimum Capabilities Standards

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As another ground for the nullification of the automation contract, petitioners posit the view that the PCOS machines do not satisfy the minimum system capabilities prescribed by RA 8436, as amended. To a specific point, they suggest that the PCOS system offered and accepted lacks the features that would assure accuracy in the recording and reading of votes, as well as in the tabulation, consolidation/canvassing, electronic transmission, storage results and accurate ballot counting.[75] In this particular regard, petitioners allege that, based on Smartmatics website, the PCOS has a margin of error of from 2% to 10%, way beyond that of the required 99.99% accuracy in the counting of votes.[76]

The minimum system capabilities provision cited is Sec. 7 of RA 8436, as amended, and the missing features referred to by petitioners are pars. (b) and (j). In full, Sec. 7 of RA 8436, as amended, reads:

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

(a) Adequate security against unauthorized access; (b) Accuracy in recording and reading of votes as well as in the tabulation, consolidation/canvassing, electronic transmission, and storage of results; (c) Error recovery in case of non-catastrophic failure of device; (d) System integrity which ensures physical stability and functioning of the vote recording and counting process; (e) Provision for voter verified paper audit trail; (f) System auditability which provides supporting documentation for verifying the correctness of reported election results; (g) An election management system for preparing ballots and programs for use in the casting and counting of votes and to consolidate, report and display election result in the shortest time possible; (h) Accessibility to illiterates and disabled voters; (i) Vote tabulating program for election, referendum or plebiscite; 73 of 283

(j) Accurate ballot counters; (k) Data retention provision; (l) Provide for the safekeeping, storing and archiving of physical or paper resource used in the election process; (m) Utilize or generate official ballots as herein defined; (a) Provide the voter a system of verification to find out whether or not the machine has registered his choice; and (o) Configure access control for sensitive system data and function.

In the procurement of this system, the Commission shall develop and adopt an evaluation system to ascertain that the above minimum system capabilities are met. The evaluation system shall be developed with the assistance of an advisory council.

From the records before us, the Court is fairly satisfied that the Comelec has adopted a rigid technical evaluation mechanism, a set of 26-item/check list criteria, as will be enumerated shortly, to ensure compliance with the above minimum systems capabilities.

The SBAC Memorandum[77] of June 03, 2009, as approved by Comelec Res. 8608,[78] categorically stated that the SBAC-TWG submitted its report that TIM/Smartmatics proposed systems and machines PASSED all the end-to-end demo tests using the aforementioned 26-item criteria, inclusive of the accuracy rating test of at least 99.955%. As appearing in the SBACTWG report, the corresponding answers/remarks to each of the 26 individual items are as herein indicated:[79]

ITE M 1

2

REQUIREMENT

REMARK/DESCRIPTION

Does the system allow manual feeding Yes. The proposed PCOS machine of a ballot into the PCOS machine? accepted the test ballots which were manually fed one at a time. Does the system scan a ballot sheet at Yes. A 30-inch ballot was used in this the speed of at least 2.75 inches per test. Scanning the 30-inch ballot took 2.7 second? seconds, which translated to 11.11inches per second. 74 of 283

3

4

5

Is the system able to capture and store in an encrypted format the digital images of the ballot for at least 2,000 ballot sides (1,000 ballots, with back to back printing)?

To verify the captured ballot images, decrypted copies of the encrypted files were also provided. The same were found to be digitized representations of the ballots cast. Is the system a fully integrated single Yes. The proposed PCOS is a fully device as described in item no. 4 of integrated single device, with built-in Component 1-B? printer and built-in data communications ports (Ethernet and USB). Does the system have a scanning Yes. A portion of a filled up marked oval resolution of at least 200 dpi? was blown up using image editor software to reveal the number of dots per inch. The sample image showed 200 dpi.

6

Does the system scan in grayscale?

7

Does the system require authorization and authentication of all operators, such as, but not limited to, usernames and passwords, with multiple user access levels? Does the system have an electronic display?

8

9

Yes the system captured the images of the 1,000 ballots in encrypted format. Each of the 1,000 images filescontained the images of the front and back sides of the ballot, totaling to 2,000 ballot side.

File properties of the decrypted image file also revealed 200 dpi. Yes. 30 shades of gray were scanned in the test PCOS machine, 20 of which were required, exceeding the required 4-bit/16 levels of gray as specified in the Bid Bulletin No. 19. Yes. The system required the use of a security key with different sets ofpasswords/PINs for Administrator and Operator users. Yes. The PCOS machine makes use of an LCD display to show information:

if a ballot may be inserted into the machine; if a ballot is being processed; if a ballot is being rejected; on other instructions and information to the voter/operator. Does the system employ error handling Yes. The PCOS showed error messages procedures, including, but not limited on its screen whenever a ballot isrejected to, the use of error prompts and other by the machine and gives instructions to related instructions? the voter on what to do next, or when there was a ballot jam error. 75 of 283

10

Does the system count the voters vote Yes. The two rounds of tests were as marked on the ballot with an conducted for this test using only valid accuracy rating of at least 99.995%? marks/shades on the ballots. 20,000 marks were required to complete this test, with only one (1) allowable reading error. 625 ballots with 32 marks each were used for this test. During the comparison of the PCOS-generated results with the manually prepared/predetermined results, it was found out that there were seven (7) marks which were inadvertently missed out during ballot preparation by the TWG. Although the PCOS-generated results turned out to be 100% accurate, the 20,000-mark was not met thereby requiring the test to be repeated.

11

12

13

Does the system detect and reject fake or spurious, and previously scanned ballots? Does the system scan both sides of a ballot and in any orientation in one pass?

Does the system have necessary safeguards to determine the authenticity of a ballot, such as, but not limited to, the use of bar codes, holograms, color shifting ink, micro printing, to be provided on the ballot, which can be recognized by the system?

To prepare for other possible missed out marks,650 ballots with (20,800 marks) were used for the next round of test, which also yielded 100% accuracy. Yes. This test made use of one (1) photocopied ballot and one (1) re-created ballot. Both were rejected by the PCOS. Yes. Four (4) ballots with valid marks were fed into the PCOS machine in the four (4) portrait orientations specified in Bid Bulletin No. 4 (either back or front, upside down or right side up), and all were accurately captured. Yes. The system was able to recognize if the security features on the ballot are missing. Aside from the test on the fake or spurious ballots (Item No. 11), three (3) test ballots with tampered bar codesand timing marks were used and were all rejected by the PCOS machine. The photocopied ballot in the test for Item No. 11 was not able to replicate the

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14

UV ink pattern on top portion of the ballot causing the rejection of the ballot. Are the names of the candidates pre- Yes. The Two sample test ballots of printed on the ballot? different lengths were provided: one (1) was 14 inches long while the other was 30 inches long. Both were 8.5 inches wide. The

15

Does each side of the ballot sheet accommodate at least 300 names of candidates with a minimum font size of 10, in addition to other mandatory information required by law?

first showed 108 pre-printed candidate names for the fourteen (14) contests/positions, including two (2) survey questions on gender and age group, and a plebiscite question.

The other showed 609 pre-printed candidate names, also for fourteen (14) positions including three (3) survey questions. Yes. The 30-inch ballot, which was used to test Item No. 2, contained 309 names for the national positions and 300 names for local positions. The total pre-printed names on the ballot totaled 609. This type of test ballot was also used for test voting by the public, including members of the media.

16

Does the system recognize full shade marks on the appropriate space on the ballot opposite the name of the candidate to be voted for?

17

Does the system recognize partial shade marks on the appropriate space on the ballot opposite the name of the candidate to be voted for?

Arial Narrow, font size 10, was used in the printing of the candidate names. Yes. The ballots used for the accuracy test (Item No. 10), which made use of full shade marks, were also used in this test and were accurately recognized by the PCOS machine. Yes. Four (4) test ballots were used with one (1) mark each per ballot showing the following pencil marks: top half shade; bottom half shade; left half shade; and right half shade

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18

19

20

21

22

23

These partial shade marks were all recognized by the PCOS machine Does the system recognize check Yes. One (1) test ballot with one check () ()marks on the appropriate space on the mark, using a pencil, was used for this ballot opposite the name of the test. candidate to be voted for? The mark was recognized successfully. Does the system recognize x marks on Yes. One (1) test ballot with one x mark, the appropriate space on the ballot using a pencil, was used for this test. opposite the name of the candidate to The mark was recognized successfully. be voted for? Does the system recognize both pencil Yes. The 1000 ballots used in the and ink marks on the ballot? accuracy test (Item No. 10) were marked using the proposed marking pen by the bidder. A separate ballot with one (1) pencil mark was also tested. This mark was also recognized by the PCOS machine. Moreover, the tests for Items No. 17, 18 and 19 were made using pencil marks on the ballots. In a simulation of a system shut down, Yes. Five (5) ballots were used in this does the system have error recovery test. The power cord was pulled from the features? PCOS while the 3rd ballot was in the middle of the scanning procedure, such that it was left hanging in the ballot reader. After resumption of regular power supply, the PCOS machine was able to restart successfully with notification to the operator that there were two (2) ballots already cast in the machine. The hanging 3rd ballot was returned to the operator and was able to be re-fed into the PCOS machine. The marks on all five (5) were all accurately recognized. Does the system have transmission and Yes. The PCOS was able to transmit to consolidation/canvassing capabilities? the CCS during the end-to-end demonstration using GLOBE prepaid Internet kit. Does the system generate a backup Yes. The PCOS saves a backup copy of copy of the generated reports, in a the ERs, ballot images, statistical report removable data storage device? and audit log into a Compact Flash (CF) Card.

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24

25

26

Does the system have alternative power Yes. A 12 bolt 18AH battery lead acid sources, which will enable it to fully was used in this test. The initial test had operate for at least 12 hours? to be repeated due to a short circuit, after seven (7) hours from start-up without ballot scanning. This was explained by TIM-Smartmatic to be caused by noncompatible wiring of the battery to the PCOS. A smaller wire than what is required was inadvertently used, likening the situation to incorrect wiring of a car battery. Two (2) COMELEC electricians were called to confirm TIM-Smartmatics explanation. The PCOS machine was connected to regular power and started successfully. The following day, the retest was completed in 12 hours and 40 minutes xxx 984 ballots were fed into the machine. The ER, as generated by the PCOS was compared with predetermined result, showed 100% accuracy. Is the system capable of generating and Yes. The PCOS prints reports via its printing reports? built-in printer which includes: 1. Initialization Report; 2. Election Returns (ER); 3. PCOS Statistical Report; 4. Audit Log. Did the bidder successfully Yes. An end-to-end demonstration of all demonstrate EMS, voting counting, proposed systems was presented consolidation/canvassing and covering: importing of election data into transmission? the EMS; creation of election configuration data for the PCOS and the CCS using EMS; creation of ballot faces using EMS; configuring the PCOS and the CCS using the EMS-generated election configuration file; initialization, operation, generation of reports and backup using the PCOS; electronic transmission of results to the: [1] from the PCOS to city/municipal CCS and the central server. [2] from the city/municipal CCS to the provincial CCS. [3] from the provincial CCS to the national CCS; receipt and canvass of transmitted results: [1] by the city/municipal CCS from the PCOS. [2] by the provincial CCS from the city/municipal CCS. [3] by the national 79 of 283

CCS from the provincial CCS; receipt of the transmittal results by the central server from the PCOS.

Given the foregoing and absent empirical evidence to the contrary, the Court, presuming regularity in the performance of regular duties, takes the demo-testing thus conducted by SBAC-TWG as a reflection of the capability of the PCOS machines, although the tests, as Comelec admits,[80] were done literally in the Palacio del Governadorbuilding, where a room therein simulated a town, the adjoining room a city, etc. Perusing the RFP, however, the real worth of the PCOS system and the machines will of course come after they shall have been subjected to the gamut of acceptance tests expressly specified in the RFP, namely, the lab test, field test, mock election test, transmission test and, lastly, the final test and sealing procedure of all PCOS and CCS units using the actual Election Day machine configuration.[81]

Apropos the counting-accuracy feature of the PCOS machines, petitioners no less impliedly admit that the web page they appended to their petition, showing a 2% to 10% failing rate, is no longer current.[82] And if they bothered to examine the current website of Smartmatic specifically dealing with its SAES 1800, the PCOS system it offered, they would have readily seen that the advertised accuracy rating is over 99.99999%.[83] Moreover, a careful scrutiny of the old webpage of Smarmatic reveals that the 2% to 10% failure rate applied to optical scanners and not to SAES. Yet the same page discloses that the SAES has 100% accuracy. Clearly, the alleged 2% to 10% failing rate is now irrelevant and the Court need not belabor this and the equally irrelevant estoppel principle petitioners impose on us.

Intervenor Cuadras concern relates to the auditability of the election results. In this regard, it may suffice to point out that PCOS, being a paper-based technology, affords audit since the voter would be able, if need be, to verify if the machine had scanned, recorded and counted his vote properly. Moreover, it should also be noted

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that the PCOS machine contains an LCD screen, one that can be programmed or configured to display to the voter his votes as read by the machine. [84] No Abdication of Comelecs Mandate and Responsibilty

As a final main point, petitioners would have the Comelec-Smartmatic-TIM Corporation automation contract nullified since, in violation of the Constitution, it constitutes a wholesale abdication of the poll bodys constitutional mandate for election law enforcement. On top of this perceived aberration, the mechanism of the PCOS machines would infringe the constitutional right of the people to the secrecy of the ballot which, according to the petitioners, is provided in Sec. 2, Art. V of the Constitution.[85]

The above contention is not well taken.

The first function of the Comelec under the Constitution[86]and the Omnibus Election Code for that matterrelates to the enforcement and administration of all laws and regulations relating to the conduct of elections to public office to ensure a free, orderly and honest electoral exercise. And how did petitioners come to their conclusion about their abdication theory? By acceding to Art. 3.3 of the automation contract, Comelec relinquished, so petitioners claim, supervision and control of the system to be used for the automated elections. To a more specific point, the loss of control, as may be deduced from the ensuing exchanges, arose from the fact that Comelec would not be holding possession of what in IT jargon are the public and private keys pair.

CHIEF JUSTICE: Well, more specifically are you saying that the main course of this lost of control is the fact that SMARTMATIC holds the public and private keys to the sanctity of this system? ATTY. ROQUE: Yes, Your Honor, as well as the fact that they control the program embedded in the key cost that will read their votes by which the electorate may verify that their votes were counted. CHIEF JUSTICE: You are saying that SMARTMATIC and not its partner TIM who hold these public and private keys? ATTY. ROQUE: Yes, Your Honor.

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The Court is not convinced. There is to us nothing in Art 3.3 of the automation contract, even if read separately from other stipulations and the provisions of the bid documents and the Constitution itself, to support the simplistic conclusion of abdication of control pressed on the Court. Insofar as pertinent, Art 3.3 reads:

3.3 The PROVIDER shall be liable for all its obligations under this Project and the performance of portions thereof by other persons or entities not parties to this Contract shall not relieve the PROVIDER of said obligations and concomitant liabilities. SMARTMATIC, as the joint venture partner with the greater track record in automated elections, shall be in charge of the technical aspects of the counting and canvassing software and hardware, including transmission configuration and system integration. SMARTMATIC shall also be primarily responsible for preventing and troubleshooting technical problems that may arise during the elections. (Emphasis added.)

The proviso designating Smartmatic as the joint venture partner in charge of the technical aspect of the counting and canvassing wares does not to us translate, without more, to ceding control of the electoral process to Smartmatic. It bears to stress that the aforesaid designation of Smartmatic was not plucked from thin air, as it was in fact an eligibility requirement imposed, should the bidder be a joint venture. Part 5, par. 5.4 (e) of the Instruction to Bidders on the subject Eligible Bidders, whence the second paragraph of aforequoted Art. 3.3 came from, reads: 5.4 A JV of two or more firms as partners shall comply with the following requirements. xxxx (e) The JV member with a greater track record in automated elections, shall be in-charge of the technical aspects of the counting and canvassing software and hardware, including transmission configuration and system integration

And lest it be overlooked, the RFP, which forms an integral part of the automation contract,[87] has put all prospective bidders on notice of Comelecs intent to automate and to accept bids that would meet several needs, among which is a complete solutions provider which can provide effective overall nationwide project management service

under COMELEC supervision and control, to ensure effective

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and successful implementation of the [automation] Project.[88] Complementing this RFP advisory as to control of the election process is Art. 6.7 of the automation contract, providing:

6.7 Subject to the provisions of the General Instructions to be issued by the Commission En Banc, the entire processes of voting, counting, transmission, consolidation and canvassing of votes shall be conducted by COMELECs personnel and officials, and their performance, completion and final results according to specifications and within the specified periods shall be the shared responsibility of COMELEC and the PROVIDER. (Emphasis added.)

But not one to let an opportunity to score points pass by, petitioners rhetorically ask: Where does Public Respondent Comelec intend to get this large number of professionals, many of whom are already gainfully employed abroad?[89] The Comelec, citing Sec. 3[90] and Sec. 5 of RA 8436,[91] as amended, aptly answered this poser in the following wise:

x x x [P]ublic respondent COMELEC, in the implementation of the automated project, will forge partnerships with various entities in different fields to bring about the success of the 2010 automated elections. Public respondent COMELEC will partner with Smartmatic TIM Corporation for the training and hiring of the IT personnel as well as for the massive voter-education campaign. There is in fact a budget allocation x x x for these undertakings. x x x As regards the requirement of RA 9369 that IT-capable personnel shall be deputized as a member of the BEI and that another IT-capable person shall assist the BOC, public respondent COMELEC shall partner with DOST and other agencies and instrumentalities of the government.

In not so many words during the oral arguments and in their respective Memoranda, public and private respondents categorically rejected outright allegations of abdication by the Comelec of its constitutional duty. The petitioners, to stress, are strangers to the automation contract. Not one participated in the bidding conference or the bidding proper or even perhaps examined the bidding documents and, therefore, none really knows the real intention of the parties. As case law tells us, the court has to ferret out the real intent of the parties. What is fairly clear in this case, however, is that petitioners who are not even privy to the bidding process foist upon the Court their own view on the stipulations of the automation contract and present to the Court what they think are the parties true intention. It is a study of

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outsiders appearing to know more than the parties do, but actually speculating what the parties intended. The following is self-explanatory: CHIEF JUSTICE: Why did you say that it did not, did you talk with the Chairman and Commissioners of COMELEC that they failed to perform this duty, they did not exercise this power of control? ATTY. ROQUE : Your Honor, I based it on the fact that it was the COMELEC in fact that entered into this contract . CHIEF JUSTICE : Yes, but my question is did you confront the COMELEC officials that they forfeited their power of control in over our election process? ATTY. ROQUE : We did not confront, your Honor. We impugned their acts, Your Honor.[92]

Just as they do on the issue of control over the electoral process, petitioners also anchor on speculative reasoning their claim that Smartmatic has possession and control over the public and private keys pair that will operate the PCOS machines. Consider: Petitioners counsel was at the start cocksure about Smartmatics control of these keys and, with its control, of the electoral process.[93]

Several questions later, his answers had a qualifying tone:

JUSTICE NACHURA: And can COMELEC under the contract not demand that it have access, that it be given access to and in fact generate its own keys independently with SMARTMATIC so that it would be COMELEC and not SMARTMATIC that would have full control of the technology insofar as the keys are concerned xxx?

ATTY. ROQUE: I do not know if COMELEC will be in a position to generate these keys, xxx. [94]

And subsequently, the speculative nature of petitioners position as to who would have possession and control of the keys became apparent.

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CHIEF JUSTICE: Yes, but did you check with the COMELEC who will be holding these two keys x x x did you check with COMELEC whether this system is correct?

ATTY.ROQUE: We have not had occasion to do so, x x x Your Honor.

xxxx

CHIEF JUSTICE: Why do you make that poor conclusion against the COMELEC x x x May not the COMELEC hire the services of experts in order for the institution to be able to discharge its constitutional functions?

ATTY. ROQUE: That is true, but x x x there is too much reliance on individuals who do not have the same kind of accountability as public officers x x x

CHIEF JUSTICE: Are you saying that the COMELEC did not consult with available I.T. experts in the country before it made the bidding rules before it conducted the bidding and make the other policy judgments?

ATTY. ROQUE: Your Honor, what I am sure is that they did not confer with the I.T. Foundation x x x. CHIEF JUSTICE: But is that foundation the only expert, does it have a monopoly of knowledge?[95]

The Court, to be sure, recognizes the importance of the vote-security issue revolving around the issuance of the public and private keys pair to the Board of Election Inspectors, including the digital signatures. The NCC comment on the matter deserves mention, appearing to hew as it does to what appear on the records. The NCC wrote: The RFP/TOR used in the recent bidding for the AES to be used in the 2010 elections specifically mandated the use of public key cryptography. However, it was left to the discretion of the bidder to propose an acceptable manner of utilization for approval/acceptance of the Comelec. Nowhere in the RFP/TOR was it indicated that COMELEC would delegate to the winning bidder the full discretion, supervision and control over the manner of PKI [Public Key Infrastructure] utilization.

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With the view we take of the automation contract, the role of Smartmatic TIM Corporation is basically to supply the goods necessary for the automation project, such as but not limited to the PCOS machines, PCs, electronic transmission devices and related equipment, both hardware and software, and the technical services pertaining to theiroperation. As lessees of the goods and the back-up equipment, the corporation and its operators would provide assistance with respect to the machines to be used by the Comelec which, at the end of the day, will be conducting the election thru its personnel and whoever it deputizes.

And if only to emphasize a point, Comelecs contract is with Smartmatic TIM Corporation of which Smartmatic is a 40% minority owner, per the JVA of TIM and Smartmatic and the Articles of Incorporation of Smartmatic TIM Corporation. Accordingly, any decision on the part or on behalf of Smartmatic will not be binding on Comelec. As a necessary corollary, the board room voting arrangement that Smartmatic and TIM may have agreed upon as joint venture partners, inclusive of the veto vote that one may have power over the other, should really be the least concern of the Comelec.

Parenthetically, the contention that the PCOS would infringe on the secrecy and sanctity of the ballot because, as petitioners would put it, the voter would be confronted with a three feet long ballot,[96] does not commend itself for concurrence. Surely, the Comelec can put up such infrastructure as to insure that the voter can write his preference in relative privacy. And as demonstrated during the oral arguments, the voter himself will personally feed the ballot into the machine. A voter, if so minded to preserve the secrecy of his ballot, will always devise a way to do so. By the same token, one with least regard for secrecy will likewise have a way to make his vote known.

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During the oral arguments, the notion of a possible violation of the AntiDummy Law cropped up, given the RFP requirement of a joint venture bidder to be at least be 60% Filipino. On the other hand, the winning bidder, TIM-Smartmatic joint venture, has Smartmatic, a foreign corporation, owning 40% of the equity in, first, the joint venture partnership, and then in Smartmatic TIM Corporation.

The Anti-Dummy Law[97] pertinently states: Section 1. Penalty. In all cases in which any constitutional or legal provision requires Philippine or any other specific citizenship as a requisite for the exercise or enjoyment of a right, franchise or privilege, any citizen of the Philippines or of any other specific country who allows his name or citizenship to be used for the purpose of evading such provision, and any alien or foreigner profiting thereby, shall be punished by imprisonment xxx and by a fine xxx.

SECTION 2. Simulation of minimum capital stock In all cases in which a constitutional or legal provision requires that a corporation or association may exercise or enjoy a right, franchise or privilege, not less than a certain per centum of its capital must be owned by citizens of the Philippines or any other specific country, it shall be unlawful to falsely simulate the existence of such minimum stock or capital as owned by such citizen for the purpose of evading such provision. xxx

SECTION 2-A. Unlawful use, Exploitation or Enjoyment. Any person, corporation, or association which, having in its name or under its control, a right, franchise, privilege, property or business, the exercise or enjoyment of which is expressly reserved by the Constitution or the laws to citizens of the Philippines or of any other specific country, or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, permits or allows the use, exploitation or enjoyment thereof by a person, corporation, or association not possessing the requisites prescribed by the Constitution or the laws of the Philippines; or leases, or in any other way, transfers or conveys said right, franchise, privilege, property or business to a person, corporation or association not otherwise qualified under the Constitution xxx shall be punished by imprisonment xxx (Emphasis added.)

The Anti-Dummy Law has been enacted to limit the enjoyment of certain economic activities to Filipino citizens or corporations. For liability for violation of the law to attach, it must be established that there is a law limiting or reserving the 87 of 283

enjoyment or exercise of a right, franchise, privilege, or business to citizens of the Philippines or to corporations or associations at least 60 per centum of the capital of which is owned by such citizens. In the case at bench, the Court is not aware of any constitutional or statutory provision classifying as a nationalized activity the lease or provision of goods and technical services for the automation of an election. In fact, Sec. 8 of RA 8436, as amended, vests the Comelec with specific authority to acquire AES from foreign sources, thus:

SEC 12. Procurement of Equipment and Materials. To achieve the purpose of this Act, the Commission is authorized to procure, xxx, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities, and other services, from local or foreign sources xxx. (Emphasis added.)

Petitioners cite Executive Order No. (EO) 584,[98] Series of 2006, purportedly limiting contracts for the supply of materials, goods and commodities to government-owned or controlled corporation, company, agency or municipal corporation to corporations that are 60% Filipino. We do not quite see the governing relevance of EO 584. For let alone the fact that RA 9369 is, in relation to EO 584, a subsequent enactment and, therefore, enjoys primacy over the executive issuance, the Comelec does fall under the category of a government-owned and controlled corporation, an agency or a municipal corporation contemplated in the executive order.

A view has been advanced regarding the susceptibility of the AES to hacking, just like the voting machines used in certain precincts in Florida, USA in the GoreBush presidential contests. However, an analysis of post-election reports on the voting system thus used in the US during the period material and the AES to be utilized in the 2010 automation project seems to suggest stark differences between the two systems. The first relates to the Source Code, defined in RA 9369 as human readable instructions that define what the computer equipment will do. [99] The Source Code for the 2010 AES shall be available and opened for review by political parties, candidates and the citizens arms or their representatives;[100] whereas in the US precincts aforementioned, the Source Code was alleged to have been kept secret by the machine manufacture company, thus keeping the American public in the dark as to how exactly the machines counted their votes.

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And secondly, in the AES, the PCOS machines found in the precincts will also be the same device that would tabulate and canvass the votes; whereas in the US, the machines in the precincts did not count the votes. Instead the votes cast appeared to have been stored in a memory card that was brought

to a counting center at the end of the day. As a result, the hacking and cheating may have possibly occurred at the counting center.

Additionally, with the AES, the possibility of system hacking is very slim. The PCOS machines are only online when they transmit the results, which would only take around one to two minutes. In order to hack the system during this tiny span of vulnerability, a super computer would be required. Noteworthy also is the fact that the memory card to be used during the elections is encrypted and readonlymeaning no illicit program can be executed or introduced into the memory card.

Therefore, even though the AES has its flaws, Comelec and Smartmatic have seen to it that the system is well-protected with sufficient security measures in order to ensure honest elections.

And as indicated earlier, the joint venture provider has formulated and put in place a continuity and back-up plans that would address the understandable apprehension of a failure of elections in case the machines falter during the actual election. This over-all fall-back strategy includes the provisions for 2,000 spare PCOS machines on top of the 80,000 units assigned to an equal number precincts throughout the country. The continuity and back-up plans seek to address the following eventualities: (1) The PCOS fails to scan ballots; (2) The PCOS scans the ballots, but fails to print election returns (ERs); and/or (3) The PCOS prints but fails to transmit the ERs. In the event item #1 occurs, a spare PCOS, if available, will be brought in or, if not available, the PCOS of another precinct (PCOS 2 for clarity), after observing certain defined requirements,[101] shall be used. Should all the PCOS machines in the entire municipality/city fail, manual counting of the paper ballots and the manual 89 of 283

accomplishment of ERs shall be resorted to in accordance with Comelec promulgated rules on appreciation of automated ballots.[102] In the event item #2 occurs where the PCOS machines fail to print ERs, the use of spare PCOS and the transfer of PCOS-2 shall be effected. Manual counting of ERs shall be resorted to also if all PCOS fails in the entire municipality. And should eventuality #3 transpire, the following back-up options, among others, may be availed of: bringing PCOS-1 to the nearest precinct or polling center which has a functioning transmission facility; inserting transmission cable of functioning transmission line to PCOS-1 and transmitting stored data from PCOS-1 using functioning transmission facility.

The disruption of the election process due to machine breakdown or malfunction may be limited to a precinct only or could affect an entire municipal/city. The worst case scenario of course would be the wholesale breakdown of the 82,000 PCOS machines. Nonetheless, even in this most extreme case, failure of all the machines would not necessarily translate into failure of elections. Manual count tabulation and transmission, as earlier stated, can be done, PCOS being a paper-ballot technology. If the machine fails for whatever reason, the paper ballots would still be there for the hand counting of the votes, manual tabulation and transmission of the ERs. Failure of elections consequent to voting machines failure would, in fine, be a very remote possibility. A final consideration.

The first step is always difficult. Hardly anything works, let alone ends up perfectly the first time around. As has often been said, if one looks hard enough, he will in all likelihood find a glitch in any new system. It is no wonder some IT specialists and practitioners have considered the PCOS as unsafe, not the most appropriate technology for Philippine elections, and easily hackable, even. And the

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worst fear expressed is that disaster is just waiting to happen, that PCOS would not work on election day.

Congress has chosen the May 2010 elections to be the maiden run for full automation. And judging from what the Court has heard and read in the course of these proceedings, the choice of PCOS by Comelec was not a spur-of-moment affair, but the product of honest-to-goodness studies, consultations with CAC, and lessons learned from the ARMM 2008 automated elections. With the backing of Congress by way of budgetary support, the poll body has taken this historic, if not ambitious, first step. It started with the preparation of the RFP/TOR, with a list of voluminous annexes embodying in specific detail the bidding rules and expectations from the bidders. And after a hotly contested and, by most accounts, a highly transparent public bidding exercise, the joint venture of a Filipino and foreign corporation won and, after its machine hurdled the end-to-end demonstration test, was eventually awarded the contract to undertake the automation project. Not one of the losing or disqualified bidders questioned, at least not before the courts, the bona fides of the bidding procedures and the outcome of the bidding itself.

Assayed against the provisions of the Constitution, the enabling automation law, RA 8436, as amended by RA 9369, the RFP and even the Anti-Dummy Law, which petitioners invoked as an afterthought, the Court finds the project award to have complied with legal prescriptions, and the terms and conditions of the corresponding automation contract in question to be valid. No grave abuse of discretion, therefore, can be laid on the doorsteps of respondent Comelec. And surely, the winning joint venture should not be faulted for having a foreign company as partner.

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The Comelec is an independent constitutional body with a distinct and pivotal role in our scheme of government. In the discharge of its awesome functions as overseer of fair elections, administrator and lead implementor of laws relative to the conduct of elections, it should not be stymied with restrictions that would perhaps be justified in the case of an organization of lesser responsibility.[103] It should be afforded ample elbow room and enough wherewithal in devising means and initiatives that would enable it to accomplish the great objective for which it was createdto promote free, orderly, honest and peaceful elections. This is as it should be for, too often, Comelec has to make decisions under difficult conditions to address unforeseen events to preserve the integrity of the election and in the process the voice of the people. Thus, in the past, the Court has steered away from interfering with the Comelecs exercise of its power which, by law and by the nature of its office properly pertain to it. Absent, therefore, a clear showing of grave abuse of discretion on Comelecs part, as here, the Court should refrain from utilizing the corrective hand of

certiorari to review, let alone nullify, the acts of that body. This gem, while not on all fours with, is lifted from, the Courts holding in an old but oft-cited case: x x x We may not agree fully with [the Comelecs] choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere. Politics is a practical matter, and political questions must be dealt with realisticallynot from the standpoint of pure theory [or speculation]. x x x

xxxx

There are no ready-made formulas for solving public problems. Time and experience are necessary to evolve patterns that will serve the ends of good government. In the matter of the administration of the laws relative to the conduct of elections, x x x we must not by any excessive zeal take away from the [Comelec] the initiative which by constitutional and legal mandates properly belongs to it. Due regard to the independent character of the Commission x x x requires that the power of this court to review the acts of that body should, as a general proposition, be used sparingly, but firmly in appropriate cases.[104] x x x

The Court, however, will not indulge in the presumption that nothing would go wrong, that a successful automation election unmarred by fraud, violence, and like irregularities would be the order of the moment on May 10, 2010. Neither will it guarantee, as it cannot guarantee, the effectiveness of the voting machines and the integrity of the counting and consolidation software embedded in them. That task 92 of 283

belongs at the first instance to Comelec, as part of its mandate to ensure clean and peaceful elections. This independent constitutional commission, it is true, possesses extraordinary powers and enjoys a considerable latitude in the discharge of its functions. The road, however, towards successful 2010 automation elections would certainly be rough and bumpy. The Comelec is laboring under very tight timelines. It would accordingly need the help of all advocates of orderly and honest elections, of all men and women of goodwill, to smoothen the way and assist Comelec personnel address the fears expressed about the integrity of the system. Like anyone else, the Court would like and wish automated elections to succeed, credibly.

WHEREFORE, the instant petition is hereby DENIED.

SO ORDERED.

PRESBITERO J. VELASCO, JR. Associate Justice

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G.R. No. 188456 H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. BAGARES, ALLAN JONES F. LARDIZABAL, GILBERT T. ANDRES, IMMACULADA D. GARCIA, ERLINDA T. MERCADO, FRANCISCO A. ALCUAZ, MA. AZUCENA P. MACEDA, ALVIN A. PETERS, suing as taxpayers and as concerned citizens v. COMMISSION ON ELECTIONS REPRESENTED BY HON. CHAIRMAN JOSE MELO, COMELEC SPECIAL BIDS AND AWARDS COMMITTEE REPRESENTED BY ITS CHAIRMAN HON. FERDINAND RAFANAN, DEPARTMENT OF BUDGET AND MANAGEMENT REPRESENTED BY HON. ROLANDO ANDAYA, TOTAL INFORMATION MANAGEMENT, INC., AND SMARTMATIC INTERNATIONAL, INC.

Promulgated:

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September 10, 2009

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

SEPARATE CONCURRING OPINION

PUNO, C.J.: Prefatory Statement The broad power to determine whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government[1] is exercised with full appreciation by the judiciary of the proper limits of its role in our tripartite form of government. We should take care that this expanded power is not used as a license for courts to intervene in cases involving matters of policy woven with constitutional and legal questions. Since time immemorial, courts have deferred to the wisdom or logic of legislative choices and technical determinations. It is as it should be.

By this paradigm, we do not abdicate our fundamental responsibility in annulling an act of grave abuse of discretion in the guise of judicial restraint, but neither do we permit the overarching use of judicial power as to amount to judicial tyranny.

A. The Case The petitioners brought this case for Certiorari, Prohibition and Mandamus to declare that public respondents Commission on Elections (COMELEC), and the 95 of 283

COMELEC-Special Bids and Awards Committee (COMELEC-SBAC), committed grave abuse of discretion amounting to lack or excess of jurisdiction when it awarded the 2010 Automated Elections Project to private respondents Total Information Management, Inc. (TIM) and Smartmatic International, Inc. (Smartmatic). Petitioners ask the Court to strike down as null and void the July 10, 2009 contract between public respondent COMELEC and private respondents for being contrary to the Constitution, statutes, and established jurisprudence.

On June 7, 1995, Congress passed Republic Act No. 8046 adopting an Automated Election System (AES) in the Philippines. RA 8046 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 No. 8436[2] (RA 8436), otherwise known as the Election Modernization Act authorizing COMELEC to use an AES for the process of voting, counting votes and canvassing or 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 adopt new electoral forms and printing materials.

The COMELEC, however, was not able to implement the AES for the positions of President, Vice President, senators and parties, organizations or coalitions participating under the party-list system throughout the entire country, as provided in RA 8436. The automation was limited to the provinces of Lanao del Sur, Maguindanao, Sulu, and Tawi-tawi due to lack of material time and funding.

The COMELEC was not also able to implement an AES in the May 2001 elections due to time constraints. But on October 29, 2002, the COMELEC 96 of 283

adopted Resolution 02-0170, which resolved to conduct biddings for the three phases of the AES: Phase I, voter registration and validation system; Phase II, automated counting and canvassing system; and Phase III, electronic transmission. The COMELEC awarded Phase II for the provision of the ACMs to the Mega Pacific Consortium (MP Consortium). The Information Technology Foundation of the Philippines (ITFP), among others, petitioned this Court to declare null and void the award of the contract to the MP Consortium. In Information Technology Foundation of the Philippines v. COMELEC,[3] this Court held that the contract was void for failure to establish the identity, existence and eligibility of the alleged consortium as a bidder; the ACMs failure to pass the tests of the Department of Science and Technology (DOST); and the ACMs failure to meet the required accuracy rating as well as safeguards for the prevention of double counting of precinct results.

On January 23, 2007, Congress passed Republic Act No. 9369 (RA 9369), amending RA 8436. It specified the modes of implementing the AES, i.e., either paper-based or a direct recording electronic (DRE) system, for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises. It also provided that for the next election, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao.[4] In addition, it provided that with respect to the May 10, 2010 elections and succeeding electoral exercises, the system procured must have demonstrated capability and been successfully used in a prior electoral exercise here or abroad. However, participation in the 2007 pilot exercise shall not be conclusive of the system's fitness.[5]

Again, the AES was not implemented in the May 2007 elections due to lack of funds and time constraints. But the AES was used in the August 11, 2008 ARMM elections, where both DRE and the paper-based Central Count Optical Scan (CCOS) machines were used.

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On March 5, 2009, Republic Act No. 9525 (RA 9525)[6] was passed by the House of Representatives and the Senate, appropriating the sum of Eleven Billion Three Hundred One Million Seven Hundred Ninety Thousand Pesos (

P11,301,790,000.00) for an AES to be used in the May 10, 2010 automated national and local elections.

From March 13 to 16, 2009, the COMELEC published and posted an invitation for vendors to apply for eligibility and to bid for the procurement of counting machines, including the supply of ballot paper; electronic transmission services using public telecommunications networks; training; technical support; warehousing; deployment; installation; pull-out; systems integration; and overall project management to be used in the automation of the counting, transmission and canvassing of the votes for the May 10, 2010 synchronized national and local elections.

On March 18, 2009, the COMELEC issued the Terms of Reference/Request for Proposal for Solutions, Terms & Conditions for the Automation of the May 10, 2010 Synchronized National and Local Elections (TOR/RFP), as promulgated in COMELEC Resolution 8591, dated March 11, 2009, with the following components: a.

Component 1: Paper-Based Automated Election System 1-A. Election Management System (EMS) 1-B. Precinct-Count Optical Scan (PCOS) System 1-C. Consolidated/Canvassing System (CCS)

b. Component 2: Provision for Electronic Transmission of Electronic Results using Public Telecommunications Networks

c.

Component 3: Overall Project Management 98 of 283

On March 19, 2009, eleven prospective bidders obtained bid documents from the COMELEC for the automation of the 2010 elections.

On March 23, 2009, RA 9525 was signed by President Gloria MacapagalArroyo appropriating P11,301,790,000.00 as supplemental appropriation for an automated elections system and other purposes.

On March 27, 2009, the COMELEC conducted a Pre-Bid Conference for the automation of the counting, transmission and canvassing of votes for the May 10, 2010 elections.

On April 23, 2009, TIM and Smartmatic entered into a Joint Venture Agreement (JVA) to form the joint venture known as Smartmatic TIM Corporation.

On May 4, 2009, seven suppliers submitted their formal bids. The COMELEC-SBAC declared all the seven bidders ineligible for failure to comply with the pass/fail criteria of the COMELEC. Upon motion for reconsideration of the suppliers, three consortiums were reconsidered by the COMELEC-SBAC, namely Indra Consortium, Smartmatic-TIM, AMA-ESS and the Gilat Consortium. After evaluation of their technical proposals, the COMELEC-SBAC declared Indra Consortium and Smartmatic-TIM to have passed.

The COMELEC-SBAC then proceeded with the opening of the financial proposals. The Technical Working Group (TWG) evaluated and reviewed the 99 of 283

financial proposals of Indra Consortium and Smartmatic-TIM. On June 3, 2009, the COMELEC-SBAC recommended to the COMELEC en banc the award of the Contract for the Provision of an Automated Election System for the May 10, 2010 Synchronized National and Local Elections (Automation Contract) to the joint venture of Smartmatic-TIM. Smartmatic-TIM was found to have the lowest calculated responsive bid (LCRB); and to have passed all the eligibility, technical, and financial requirements. The COMELEC-SBAC noted that Smartmatic-TIMs machines passed all the tests and systems evaluation with an accuracy rating of 100%. This finding was verified and validated in the post-qualification proceedings. The total bid of Smartmatic-TIM amounting to Seven Billion One Hundred Ninetyone Million Four Hundred Eighty-four Thousand Seven Hundred Thirty-nine and 48/100 Philippine pesos (P7,191,484,739.48) was found by the COMELEC to be within the approved budget for the contract of Eleven Billion Two Hundred Twentythree Million Six Hundred Eighteen Thousand Four Hundred and 0/100 Philippine pesos (P11,223,618,400.00).[7]

On June 8, 2009, the COMELEC Advisory Council[8] submitted its observations on the procurement proceedings of the SBAC, with the conclusion that these were transparent and in conformity with the law and the TOR/RFP. It noted that Smartmatic-TIM had a 100% accuracy rating. The Advisory Council has the mandate to participate as nonvoting members of the COMELEC-SBAC in the conduct of the bidding process for the AES.

On the same date, June 8, 2009, the Office of the Ombudsman, which had previously created Task Force Poll Automation,[9] submitted its Process Audit Observation Report. The Ombudsman Task Force also found the above proceedings and systems to be consonant with the Constitution, procurement laws, and RA 9369.

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The Parish Pastoral Council for Responsible Voting (PPCRV) representative likewise submitted a report, which concurred with the final report of the COMELEC-SBAC.

On June 9, 2009, the COMELEC en banc promulgated Resolution No. 8608, confirming Smartmatic-TIM as the bidder with the LCRB and awarding the contract for the automation of the elections on May 10, 2010 to the joint venture.

On June 10, 2009, the COMELEC awarded the contract to Smartmatic-TIM to supply 82,000 Precinct Count Optical Scan (PCOS) machines to be used in the 2010 elections. Subsequently, Jose Mari Antuez, the President of TIM, informed COMELEC Chairperson Jose Melo that TIM was withdrawing from the partnership with Smartmatic, due to irreconcilable differences and loss of confidence. The scheduled signing on June 30, 2009 of the Automation Contract between COMELEC, Smartmatic and TIM did not take place. Following a series of discussions, Smartmatic and TIM were able to settle their internal dispute.

Smartmatic and TIM then caused the incorporation of their joint venture, pursuant to the JVA. On July 8, 2009, the Securities and Exchange Commission (SEC) issued a Certificate of Incorporation to Smartmatic TIM Corporation.

On July 10, 2009, the Smartmatic TIM Corporation entered into the Automation Contract with the COMELEC. The contract price was P7,191,484,739.48.

The petition at bar raises the following -101 of 283

B. Issues

1. Whether RA 8436, as amended by RA 9369, requires the conduct of a pilot exercise as a condition precedent to the full nationwide automation of the election.

2. Whether RA 9525 has impliedly repealed the pilot testing requirement.

3. Whether Smartmatic and TIM entered into a valid joint venture agreement.

4. Whether any nationality requirement is applicable.

5.

Whether the AES chosen by the COMELEC complies with the prior successful use qualification set forth in Section 12 of RA 8436, as amended.

6. Whether the PCOS machines offered by the Smartmatic-TIM Consortium satisfy the minimum system capabilities mandated by Section 6 of RA 8436, as amended.

C. Discussion

A touchstone of our Constitution is that critical public policy judgments belong to the legislative branch, and the Court must not unduly intrude into this exclusive domain.

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In enacting RA 8436 (Election Modernization Act) on December 22, 1997, the legislature has clearly chosen the policy that an AES shall be used by the COMELEC for the process of voting, counting of votes and canvassing/consolidation of results of the national and local elections.[10] It decided to put an end to the manual conduct of our elections that has frustrated the honest casting of votes by our sovereign people.

In the pursuit of its objective, the legislature defined what it considered an AES and provided the standards for its implementation. It further determined the minimum functional capabilities of the system and delegated to the COMELEC the development and adoption of a system of evaluation to ascertain that the minimum system capabilities would be met.

The policy decision of Congress to adopt an AES is not under question. It is the manner the COMELEC is implementing the AES that is assailed by the petitioners. The first issue is whether the conduct of an AES in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao is a condition precedent to the nationwide implementation of the AES.

c.1 The conduct of the pilot exercise of the AES is a condition precedent to its nationwide implementation

Whether the conduct of the pilot exercise of the AES is a condition precedent to its nationwide implementation involves the correct interpretation of Section 5 of RA 8436. The interpretation of Section 5, RA 8436, as amended, is nothing less than a brain twister. It appears like a Rorschach inkblot test, in which petitioners and respondents assign meaning to certain words as though they were deciphering

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images formed by inkblots. Using the same word of the law, they arrive at different conclusions.

Thus, the petitioners interpret the word shall in the first proviso of Section 5, RA 8436, as amended, to support their thesis that the pilot exercise of the AES is a condition precedent prior to its full implementation. The proviso states that the [automated election system] shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao.[11]

Similarly, the respondents interpret the word shall in the last sentence of the provision, which states that in succeeding regular national or local elections, the [automated election system] shall be implemented nationwide,[12] and submit that the pilot exercise of the AES is not a condition precedent. Further, they contend that the use of the AES in at least two provinces and two highly urbanized cities each in Luzon, Visayas and Mindanao

refers only to the national and local elections immediately following the passage of RA 9369, i.e., the May 2007 national and local elections. They argue that this was just an acknowledgment by Congress that there was not enough time or funds to conduct a full nationwide automation of the May 2007 election.

The respondents reading of Section 5 disregards the tenor of the entire provision. A rational reading of the entire provision will show that the different parts isolated and then interpreted by the respondents are connected by the conjunctions provided, that and provided, further that and provided, finally that. These conjunctions signify that the clauses that follow the conjunction are a pre-requisite or a condition to the fulfillment of the previous clause. The words provided, that mean the same as as long as, in order that, and if only. Thus, the provision should be read and understood as follows:

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Part 1: To carry out the above-stated policy, the Commission on Elections, herein referred to as the Commission, is hereby authorized to use an automated election system or systems in the same election in different provinces, whether paper-based or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises:[13]

Provided, That

Part 2: for the regular national and local elections, which shall be held immediately after the effectivity of this Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao, to be chosen by the Commission:

Provided, further,

Part 3: That local government units whose officials have been the subject of administrative charges within sixteen (16) months prior to the May 14, 2007 elections shall not be chosen:

Provided finally,

Part 4: That no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. The term local government unit as used in this provision shall refer to a highly urbanized city or province.

Part 5: In succeeding regular national or local elections, the AES shall be implemented nationwide.[14]

In this light, Section 5 should be interpreted to mean that the COMELEC is authorized to use an AES as long as the following requisites are complied with: (1) for the regular national and local elections, which shall be held immediately after the effectivity of the Act, the AES shall be used in at least two highly urbanized cities 105 of 283

and two provinces each in Luzon, Visayas and Mindanao; (2) that local government units whose officials have been the subject of administrative charges within sixteen months prior to the May 14, 2007 elections shall not be chosen; and (3) that no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. And, when the above conditions are complied with, the AES shall be implemented nationwide in succeeding regular national and local elections.

The last sentence of the provision which provides that [i]n succeeding regular national or local elections, the AES shall be implemented nationwide may appear as not connected to the enumeration of requirements for the use of an AES. But this does not mean that it can be read in isolation and independently from the rest of the provision. Section 5 expressly declares that the COMELEC's authority to use the AES on a nationwide scale is contingent on the prior conduct of partial automation in two provinces and two highly urbanized cities each in Luzon, Visayas and Mindanao.

Likewise, the word pilot testing may not have been used in the provision, but the intent to test the use of an AES is evident in its text. The mandatory nature of the initial conduct of an automated election in two provinces and two highly urbanized cities each in Luzon, Visayas and Mindanao is highlighted by the use of the word shall. That this is a condition precedent before a full nationwide automated election can be used in the succeeding elections is buttressed by the use of the words provided, that. Thus, the COMELEC is authorized to use an AES, provided that the AES is first used in two provinces and two highly urbanized cities each in Luzon, Visayas and Mindanao, after which, in the following regular national and local elections, the AES shall be implemented nationwide.

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Pushing to the limit their argument that pilot testing is not a condition precedent to the conduct of an AES, the respondents rely on Section 12 of RA 8436, as amended, which provides thus:

SEC. 12. Procurement of Equipment and Materials. To achieve the purpose of this Act, the Commission is authorized to procure, in accordance with existing laws, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities and other services, from local or foreign sources free from taxes and import duties, subject to accounting and auditing rules and regulations. With respect to the May 10, 2010 elections and succeeding electoral exercises, the system procured must have demonstrated capability and been successfully used in a prior electoral exercise here or abroad. Participation in the 2007 pilot exercise shall not be conclusive of the system's fitness. (Emphasis supplied)

The respondents press the point that Section 12, supra, indicates that pilot testing in the May 2007 elections is not a mandatory requirement for the choice of an AES to be used in the May 2010 elections, nor is it a prerequisite for the full automation of the May 2010 elections, since the systems capability may have been used in an electoral exercise abroad. Respondents also contend that since participation in the 2007 pilot exercise is expressly declared as inconclusive of the systems fitness, then the non-use of the PCOS machines in the 2007 electoral exercise is not a bar to the implementation of a full nationwide automation in the 2010 elections.

With due respect, the respondents have a murky understanding of the last sentence of Section 12. It merely states that [p]articipation in the 2007 pilot exercise shall not be conclusive of the system's fitness. It does not say that participation of the procured system in the 2007 pilot exercise is not a condition precedent to the full nationwide implementation of the AES. The section says in unadorned language that as long as the system procured presumably for the May 2007 elections has been shown to have demonstrated capability and has been successfully used in a prior electoral exercise here in the Philippines or abroad, the system may also be used in the May 2010 and succeeding elections. In fine, the subject of the section is the fitness of the system 107 of 283

procured for the May 2007 automated pilot exercise; it has no relation to the issue of whether the pilot exercise is a condition precedent to the implementation of full nationwide automated elections.

The deliberations of the Joint Congressional Oversight Committee on [the] Automated Election System (Joint Committee on AES)[15] should further enlighten us on the purpose of the last sentence in Section 12 of RA 8436, as amended: that [p]articipation in the 2007 pilot exercise shall not be conclusive of the system's fitness.

They reveal that the purpose is simply to avoid a situation in which the choices of machines and the kind of AES to be used in the 2010 elections would be limited to those that were piloted in the 2007 elections.

Thus, Senator Richard Gordon explained that the purpose behind the statement that participation in the 2007 pilot exercises was not conclusive of the systems fitness was to ensure that newly developed technology may still be considered for the 2010 elections, even though it was not tested in the 2007 pilot exercise. Representative Teodoro Locsin concurred in the same view. Thus:

THE CHAIRMAN (SEN. GORDON). Precisely that was placed there so that you can get newly discovered machines or newly invented machines that can be utilized so that in the 2010 elections it would have been tried in an example here in our country.

THE CHAIRMAN (REP. LOCSIN). I think the purpose of this was any bidder who can prove and who has already carried out an electoral exercise- sure, of course, he has a leg up of all other but thats not conclusive which assumes that others who have not the same experience will be allowed to also bid. (Emphasis supplied.)[16]

Representative Locsin elucidated that participation in the pilot-exercise was not conclusive of the systems fitness, because pilots were easier to do than national exercises. This was also to emphasize that those who participated in the pilot

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exercise were not to be preferred over those who were not able to participate in the pilot exercise. Thus:

THE CHAIRMAN (REP. LOCSIN). Although this is a detail, if I may no, I think you are just doing your best that you just read what it says. It simply says that, I think, everyone is entitled to put their bid. Your (sic) have the discretion to decide whether or not they have the capability. A company may have had many exercises in Latin America but for this particular exercise they may not be prepared to deploy the best then we just forget it. But when it says participation in 2007 pilot exercise shall not be conclusive, that does not mean to exclude anyone who did not participate in 2007. It was only meant to say our fear is that somebody may be so good in the pilot but then hell say, Hey, I won the pilot therefore you have to give me the national election. Thats all it meant because pilots are always easier to do than national exercises. (Emphasis supplied.)[17]

The respondents also have an erroneous reading of the use of the word pilot exercise instead of pilot testing. They claim that the use of the word pilot exercise instead of pilot testing is indicative of the intention to only initially use or employ the AES in the 2007 elections rather than make it a condition precedent. Again, this submission is not sustained by the deliberations of the Senate. Pilot-exercise was used in the law instead of pilot-test to avoid the notion that a test must first be passed in the 2007 elections in order to continue with the use of the AES as a mode of conducting the succeeding elections. The lawmakers wanted to avoid the use of the word test, so that in case the AES to be used in the 2007 elections did not well perform as planned, still, the automation of the elections in the next elections would proceed. This intent is reflected in the debate between Senator Richard J. Gordon (Senator Gordon) and Senator Manuel A. Roxas II (Senator Roxas) over an amendment to Section 5 of RA 8436, proposed by the latter. Senator Roxas proposed to add the words on a test basis to refer to the use of an AES. The amendment is as follows:

Section 5. Authority to Use an Automated Election System. To carry out the above-stated policy, the Commission on Elections, herein referred to as the COMELEC is hereby

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authorized to use ON A TEST BASIS AN automated election system x x x.[18] (capitalization in the original.)

Senator Roxas wanted to use the word test, so that after a test of the AES in the 2007 elections, Congress would know whether the implementation of the 2007 national and local AES was successful. Thereafter, Congress would decide whether the AES as a mode of conducting elections should still be used for the successive elections. This is clear from the following exchange of remarks between Senator Roxas and Senator Gordon:

SENATOR ROXAS. In any event, Mr. President, I would like now to go to line 18 and read into the Record the proposed amendment. Again, as I said earlier, so as not to confuse those who are following the language, I will deliberately not read the word test subject to whatever happens to that word in subsequent debate and dialogue.

The proposed amendment reads:

THE FURTHER IMPLEMENTATION OF AN AES OR AES TECHNOLOGY SHALL BE DECIDED UPON BY CONGRESS, THROUGH A JOINT RESOLOUTION, UPON RECOMMENDATION OF THE OVERSIGHT COMMITTEE. FOR THIS PURPOSE, THE OVERSIGHT COMMITTEE SHALL CONDUCT COMPREHENSIVE EVALUATION PERFORMANCE OF SAID AES OR AES TECHNOLOGY DURING INITIAL IMPLEMENTATION OF RESULTS WITH MANUAL TABULATION. IT SHALL THEN MAKE APPROPRIATE RECOMMENDATIONS TO CONGRESS ON WHETHER ANY FURTHER IMPLEMENTATION SHALL BE CONDUCTED OR OTHERWISE. IN CASE OF FURTHER IMPLEMENTATION AND THE INCREMENTAL COVERAGE BY ALL AES SHALL NOT BE MORE THAN TEN PERCENT (10%) OF THE TOTAL COVERAGE IN TERMS OF NUMBER OF DISTRICTS.

That is the proposed amendment, Mr. President. The proposed amendment, first, from a comprehensive perspective seeks to revert back to Congress the judgment whether the implementation of the AES in 2007 national and local elections was successful or not.

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As envisaged in the bill, Mr. President, we are leaving to the Comelec the decision to choose the appropriate technology that will be implemented. There will be a series of advisory or a number of advisory and TAHEC bodies that will hopefully inform that decision.

xxxx

SENATOR GORDON. I thank the distinguished gentleman from Capiz, Mr. President. I know he tried to amend this with sincerity, but I also would like to maintain that this is not a test, first and foremost, because he speaks of a test, and I know he has already stated what word to use. As I pointed out, the words to be used should be: The Automated Election System will be implemented in the province he has already spoken about.

But, upon the other hand, I am concerned about shall be decided upon by Congress through a joint resolution, referring to line 18,--before the implementation of an AES. I am removing the word test, --before the implementation of AES technology shall be decided upon by Congress.

Mr. President, that line speaks volumes. The mother bill that we are amending which is enacted in 1987 decided a policy that we are going to go on an automated election. In other words, if we follow the logic here, we are practically saying: Well, we may be changing our mind. Maybe we are not in automation mode again. This very line suggests and clearly states that: Hey, it is going to go back to Congress. And, in fact, through a joint resolution, which I think cannot even be done because Congress amends even without this suggestion. It can amend even without these lines. It can amend the law if it chooses to do so. Which means that after the Automated Election System, if we feel that we no longer want to have an automated election system, Congress cannot at anytime say: No, we are no longer in that mode.

What our bill provides is that we are already on this heuristic notion, if I may use a word I learned in school a long time ago, which is a trajectory that is headed towards a particular direction aimed at modernizing the election by way of AES. And we have put in the safeguards the minimum requirements and by so doing, after the election has been conducted, the Comelec which is the agency, whether we like it or not, that has been mandated by the Constitution to run our elections simply goes on and says: All right, we will expand upon the recommendation of the AES, along with the oversight committee.

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Now, if that is the case, Mr. President, there is no need to go back to Congress. But if Congress sees it fit, as I pointed out, we are not obviating that possibility. If Congress sees it fit, they can amend it.

But as far as I am concerned, I think the rule should be that we are on an automated rule should be that we are on an automated election mode and we should not say continue on with it.

But as far as I am concerned, I think the rule should be that we are on an automated election mode and we are on an automated election more and we should continue on with it. But we should not say after the exercise, parang lumalabas na test, we will now go back and decide whether we are still on an automated election mode and say we might be going back to manual. x x x We have debated on the automated, we passed this on the past period of debate and we have already decided that we are continuing with the trajectory of automated election. I would not want to go back again to a situation where Congress will say, We are changing his (sic) mind. Although, it is within its prerogative anyway at any time. (Emphasis supplied; capitalization in the original.) [19]

Senator Roxas amendment which contained the word test, was rejected. The reason is not because the partial use of the AES in the 2007 election was not considered as a condition precedent to its full implementation in the 2010 elections. Rather, it was because the use of the word test would have implied that Congress would still have to decide whether the conduct of the AES had passed its requirements; whether an AES should still be continued in the succeeding elections; or whether, based on the test, the conduct of the elections should revert to manual. Senator Gordon further made it clear that the reason why the AES should first be implemented in certain parts of the country and not immediately throughout the entire country was that a big bite must not be taken right away.[20] The implementation of the system must be done in phases: first, it must be piloted in parts of the Philippines, and only then can it be implemented nationwide. This is reflected in the following statement of Senator Gordon:

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SENATOR GORDON. x x x x

Mr. President, this is precisely why we are starting the automation in two provinces and two cities so that we do not take a big bite right away. And I accepted the amendment of the Minority Leader precisely because we want to make sure that the bite is sufficiently enough for us to be able to run the automation. x x x We trust the Comelec but we verify the system because we are hamstrung by the constitutional provision that the Comelec is the one that is principally in charge of running the elections, but at the same time, we have an Advisory Council, composed of our experts, to guide them. (Emphasis supplied) [21] xxxx

Now, the sample is only two provinces and two cities, Mr. President, so that we would be able to get a gauge. x x x (Emphasis supplied)[22]

x x x So, it is really an automated system that we advocate and, obviously, the two provinces and two cities for Luzon, Visayas and Mindanao will be the initial approach towards this effort. So that when we go and expand in the next elections in 2010, based on the Oversight Committee and based on the Congress itself, if we want to amend it again, we can do so. (Emphasis supplied)[23]

In sum, both from the words of RA 8436, as amended by RA 9369, and its legislative intent, it is clear that an AES shall be conducted; and that the COMELEC is authorized to implement the AES, provided that it is initially piloted in two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao.

c.2 Be that as it may, the enactment of RA 9525 has impliedly repealed the Pilot Exercise Requirement

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In a shift in stance, it is argued by the respondents that RA 8436, which requires that a piloting of the AES be used in at least two provinces and two highly urbanized cities each in Luzon, Visayas and Mindanao before a full nationwide automation of the elections can be conducted, has been impliedly repealed by the enactment of a later law, RA 9525.They proffer the view that RA 9525,[24] appropriating P11,301,790,000.00 for the conduct of an AES in the May 10, 2010, is for the full implementation of automated elections in 2010. They argue that when RA 9525 was enacted on March 5, 2009, Congress was aware that there was no pilot exercise conducted in two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao; and despite this failure, Congress still appropriated the entire amount of P11,301,790,000.00 for the full nationwide implementation of the AES in the May 2010 elections. By the enactment of the P11,301,790,000.00 supplemental appropriation, the respondents claim that Congress conveyed the intention to proceed with full nationwide automation and do away with the requirement of conducting a pilot exercise. The respondents also rely on the deliberations of the Senate and the House of Representatives to support their thesis.

On the other hand, the petitioners counter that there was no implied repeal of the requirement of pilot testing of the AES in two provinces and two highly urbanized cities each in Luzon, Visayas and Mindanao. They cite Section 2 of RA 9525, viz.: Section 2. Use of Funds. - The amounts herein appropriated shall be used for the purposes indicated and subject to: (i) the relevant special and general provisions of Republic Act No. 9498, or the FY 2008 General Appropriations Act, as reenacted, and subsequent General Appropriations Acts, and (ii) the applicable provisions of Republic Act No. 8436, entitled: "An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in subsequent National and Local Electoral Exercises, Providing Funds Therefor and for Other Purposes", as amended by Republic Act No. 9369: Provided, however, That disbursement of the amounts herein appropriated or any part thereof shall be authorized only in strict compliance with the Constitution, the provisions of Republic Act No. 9369 and other election laws incorporated in said Act so as to ensure the conduct of a free, orderly, clean, honest and credible election and shall adopt such measures that will guaranty transparency and accuracy in the selection of the relevant technology of 114 of 283

the machines to be used on May 10, 2010 automated national and local election. (Emphasis supplied.)

The petitioners stress that Section 2 provides that the amount appropriated shall be used for the implementation of the May 2010 automated elections, subject to the applicable provisions of RA 8436, as amended. They further emphasize that Section 2 states that the disbursement of the amount appropriated or any part thereof shall be done only in strict compliance with the Constitution, and the provisions of RA 9369 and other election laws. Thus, the petitioners conclude that the mandatory requirement of pilot testing was not repealed but reiterated by Congress in said section.

The petitioners further argue that implied repeals are not favored, and two laws must be absolutely incompatible before an inference of implied repeal may be drawn. They contend that RA 9525 is not totally inconsistent with the requirement of pilot testing in Section 5 of RA 8436, as amended, such that the provisions of RA 9525 must be interpreted and brought into accord with the old law.

To resolve this issue of implied repeal, the Court must first determine whether it was the intent of Congress to push through with full nationwide automation of the elections in May 2010. RA 9525 is unclear whether Congress appropriated P11,301,790,000.00 for the conduct of full or partial automated elections, or whether it intended the automated elections to be conducted nationwide or only in the pilot areas. To clear this uncertainty, the Court should resort to the deliberations of the Senate and the House of Representatives, as well as the hearings of the Joint Committee on AES.

Let us first look at the deliberations of the House of Representatives when it considered House Bill 5715 (HB 5715), entitled An Act Appropriating the Sum of 115 of 283

Eleven Billion, Three Hundred One Million, Seven Hundred Ninety Thousand Pesos as Supplemental Appropriations for an Automated Election System and for Other Purposes. From the deliberations, the assumption of the members of the House of Representatives who engaged in the debate was that the appropriation was for a full nationwide implementation of the AES in the May 2010 elections.

Thus, in the sponsorship speech of Representative Junie Cua of the Lone District of Quirino, he stated that the appropriation was for the full nationwide automation of the May 2010 elections, viz.:

REP. CUA. x x x x

For your consideration, my dear esteemed colleagues, I have the privilege of submitting the budget of the Commission on Elections for the automation of the 2010 national and local elections.

Out of the budget proposal of P11.3B, the COMELEC is proposing to spend about P8.2B for the lease of election automation equipment. This will cover the cost of 80,000 Precinct Count Optical Scanners or PCOS that will be deployed throughout the country. These devices will count hand-marked ballots that will be printed on ballot paper costing a total of P1B. We will be spending about P78B on ballot boxes. Once the ballots are so counted, the results will then be electronically transmitted to the public quicker than any quick count in our election history and for this, we need P400M.

And finally P1.7B, more or less, will then be spent to ensure that everything goes smoothly through the strong project management and associated services that the COMELEC will put in place. (Emphasis supplied.)[25]

xxxx

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As AKBAYAN Party-list Representative Risa Hontiveros-Baraquel (Representative Hontiveros-Baraquel) was asking clarificatory questions to Representative Junie Cua, she also stated that the appropriation was for the conduct of the automated elections of the entire country and not merely a region therein, viz.:

REP. HONTIVEROS-BARAQUEL. x x x x

In the budget breakdown presented by the COMELEC in our committee hearing, the amount for operating expenses was P50 million, which is only equal to the operating expenses for the ARMM elections. And, since this would be a national elections, not just in one region of our country, I asked then, Shouldnt the amount be more in the vicinity of one or one-and-a-half billion pesos? There is part of the response was in the remarks column of the COMELEC, where they noted that some of the operating expenses, the transmission costs, would be carried by public TELCOS. (Emphasis supplied.) x x x

xxxx REP. CUA. Yes, Mr. Speaker, after consulting with the technical people of the commission, I understand that the Lady is correct that what was originally allocated for operating cost or transmission cost was 50 million. But after reevaluating the cost breakdown, they have increased this to 200 million, Mr. Speaker, Your Honor. Yes, 200 million, Mr. Speaker.[26] (Emphasis supplied)

HB 5715 was approved on the third reading, with 193 members of the House of Representatives voting in the affirmative, one voting in the negative, and one abstention.

We have also examined the deliberations of the Senate which constituted itself into a Committee of the Whole to consider HB 5715. The debates confirmed that the senators were also of the understanding that the appropriation of P11.3 billion was for the full nationwide automation of the May 2010 elections.

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In the same vein, the members of the Joint Committee on AES took it as a given that the May 2010 elections would be implemented throughout the entire country. The September 1, 2008 hearing of the Joint Committee on AES took up the COMELEC evaluation report on the automated elections held in the ARMM. Senator Loren Legardaasked the Chairperson of the COMELEC Advisory Council, Mr. Ray Anthony Roxas-Chua III, regarding the cleansing of the list of voters; in the process of doing so, she assumed that the 2010 elections were to be full automated. Thus:

SEN. LEGARDA. x x x x

So therefore, if I understand correctly, the cleansing of the voters list through the enactment of a new law and the funding from Congress is essential because it is a partner towards the automation, complete automation, by 2010. Is that correct? (Emphasis supplied.)[27]

Representative Edcel Lagman held the same assumption, as he asked the following question:

REP. LAGMAN. Mr. Chairman, how many machines and allied equipment do you need for the nationwide implementation of the automation by 2010? (Emphasis supplied.)[28]

During the September 9, 2008 hearing of the Joint Committee on AES, Senator Edgardo Angara had an exchange with Chairman Melo. It was unmistakable from the exchange that not only did the Congress contemplate a full nationwide automation of the May 2010 elections, but also that the approval of a

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budget of P11.3 billion was meant for the conduct of a full nationwide automation of the 2010 elections, and not a partial or a pilot of the AES in selected areas.

SEN. ANGARA. Mr. Chairman, yesterday the Finance Committee of the Senate started the budget hearing. So, in the Senate we are already beginning to do that.

Now let me just ask before I say something more. Has the budget of the Comelec been heard in the House?

MR. MELO. Not yet.

SEN. ANGARA. Good! Good, good, because that is your window of opportunity. Youve got to catch the House hearing on the budget because its better that your proposed budget for the elections of 2010 are incorporated in the House itself. Of course, we can supplement it in the Senate but, as you know, the Senate cannot tap the Presidents Budget. So its better that we negotiate it in the House.

The presentation yesterday by the Budget Secretary is you will have about 3.8B for 2010. And the 3.8B, billion (sic), also includes registration, etcetera, etcetera so it does not exclusivelyAnd when we asked, Is this enough for full automation? Secretary Andaya was frank enough. No, no. This is the figure that they submitted to us four years ago and we are really expecting a submission of a revised cost of computerization.

This is why I think you must seize the opportunity. And I would suggest very strongly that the advisory committee sit down with potential bidders and really go over every single figure in that costing because its going to be unfortunate that this will not push through. Automation will not push through simply because its so expensive that therell be such a huge public outcry against it. Whereas, you and I know that this may be one good way to have clean elections and speedier results announced in our country. Thats why I think its very important that you bargain hard and I hope that the suppliers will see also the public service element in this experiment; that I hope they wont even cut a profit out of this transaction because if you are successful, I think this will be one of the biggest use of their technology at 45 million or 35 million voters. I dont know if theres any other country who has that number of voters using this particular technology.

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So, in terms of selling point, this will be one of their strongest selling points. So I urge the representatives of the vendors to consider that very strongly even if they have to donate a substantial portion of that cost for the sake of democracy, di ba?[29] (Emphasis supplied.)

Indeed, several times during the hearings of the Joint Committee on AES, the members pointed out that full nationwide elections would be conducted on May 10, 2010, viz.:

MR. TOLENTINO.[30] Yes, Sir. The costing here would be the purchased (sic) price. And if we base it on the rate that we sued for the ARMM elections, the lease cost would be 70 percent of the total budget.

THE CHAIRMAN (SEN. GORDON). Well, I got thrown off because there is an allegation made by Mr. Dizon that says that they can make it for 14 to P18 billion, is that correct?

MR. DIZON. Yes, Mr. Chairman.

THE CHAIRMAN (SEN. GORDON). DRE machines

MR. DIZON. Yes, Mr. Chairman. THE CHAIRMAN (SEN. GORDON). for the entire country, right?

MR. DIZON. Yes, Mr. Chairman. Thats approximately 37 million voters.[31] (Emphasis supplied.)

In the March 4, 2009 hearing:

THE CHAIRMAN (SEN. ESCUDERO). The only thing I am raising this (sic), Mr. Chairman, is without violating inter-chamber courtesies, we are talking here of 40, nearly 120 of 283

50 million voters and you are transmitting a vote located thousands of kilometers away in an area we are not even sure if there is signal, dahil kung wala ibababa ho physically iyong balota mula duon sa presinto para dalhin o maglalagay kayo ng satellite, hindi ko ho alam kung ano ang gagawin ninyo, wala pa ho tayo doon. x x x So, please, bear with us as your Oversight Committee attempts to sift through all of these various inputs and information and try to find some rhyme or reason into it and justify perhaps our action of the proposed full automation for the 2010 elections. x x x (Emphasis supplied.)

xxxx

THE CHAIRMAN (SEN. ESCUDERO). And as final point, Mr. Chair, I would like to make of record what we discussed. Kindly also look into the possibility, Mr. Chairman, fully automated tayo, OMR kayo, as you proposed, but in addition to electronic transmission, cant we have an OMR at the provincial level to count the ERs to be produced by our OMRs at the precinct or collapsed precinct level either OMR that can count ER or OMR that can count an encrypted CD from the PCOS located in the collapsed precinct so that you will have a hard copy of the ER at the provincial level which you can easily adopt once you go to the site? x x x[32] (Emphasis supplied.)

So it was during the February 2, 2009 hearing of the Senate Committee on Finance for the appropriation of P11.3 Billion for the May 10, 2010 AES, viz.:

MR. ROXAS-CHUA. Your Honor, Your Honor, the basis for this is really the ARMM election because we used similar structure. It was also a lease with an option to purchase and this is where we came up with the 70 percent price for the lease with the option to purchase. That is the structure that we used and there was successful bidder so we used that as a basis, as the cost structure for this next election.

THE CHAIRMAN.[33] Hindi. Siyempre doon sa ARMM, kinocompartmentalized (compartmentalize) ninyo per province. O, Maguindanao, you will use DRE. The rest we will use COS. Oo. So, localized. Ito nationwide ito.[34]

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The Comment-in-Intervention of the Senate of the Philippines also affirmed the congressional intention to implement a full nationwide automation of the elections this May 10, 2010. It categorically stated that the approval of the supplemental budget of P11.3 billion for the upcoming May 10, 2010 elections was not merely for a pilot test, but for a full nationwide implementation of the AES.

In the case at bar therefore, there is unmistakable evidence of the legislative intent to implement a full nationwide automation of the May 2010 elections. It is impossible to give effect to this intent and at the same time comply with the condition precedent of conducting pilot exercises in selected areas. The irreconcilability between Section 5 of RA 8436, as amended, and Section 2 of RA 9525 is apparent for Congress could not have maintained the requirement of a pilot exercise as a condition precedent to full automation when it had made it absolutely clear that it wanted to push through with a full nationwide AES this May 2010.

Laws of Congress have equal intrinsic dignity and effect; and the implied repeal of a prior by a subsequent law of that body must depend upon its intention and purpose in enacting the subsequent law.[35] What is necessary is a manifest indication of a legislative purpose to repeal. Repeal by implication proceeds from the premise that where a statute of a later date clearly reveals an intention on the part of the legislature to abrogate a prior act on the subject, that intention must be given effect.

c.3 COMELECs Award of the Automation Contract to the Smartmatic-TIM Consortium Not Attended by Grave Abuse of Discretion

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The petitioners attribute grave abuse of discretion amounting to lack or excess of jurisdiction to the COMELEC for awarding the 2010 Elections Automation Project to Smartmatic TIM Corporation, on four grounds, viz.: 1. Private Respondents Smartmatic and TIM allegedly did not execute and submit a valid joint venture agreement evidencing the existence, composition and scope of their joint venture, in violation of the COMELECs own bidding requirements and this Courts ruling in Information Technology of the Philippines, et al. v. COMELEC, et al.;[36]

2. Even granting that such an agreement was submitted, the joint venture is nevertheless illegal for having been constituted in violation of the nationality requirement, i.e., 60%40% Filipino-foreign equity ceiling;

3.

The AES chosen by the COMELEC does not comply with the prior successful use qualification set forth in Section 12 of RA 8436, as amended; and

4.

The PCOS machines offered by the Smartmatic-TIM Consortium do not satisfy the minimum system capabilities mandated by Section 7 of RA 8436, as amended.

Preliminarily, it should be underscored that RA 8436, as amended by RA 9369, does not mandate the use of any specific voting equipment. Instead, the law gave COMELEC the sole power to prescribe the adoption of the most suitable technology of demonstrated capability[37] as it may deem appropriate and practical,[38] taking into account the situation prevailing in the area and the funds available for the purpose.[39] Absent any capricious and whimsical exercise of judgment on the part of the COMELEC, its determination of the appropriate election technology, as well as the procedure for its procurement, should be respected. Our judicial function is merely to check and not to supplant the judgment of the COMELEC; to ascertain merely whether it has gone beyond the limits prescribed by law, and not to exercise the power vested in it or to determine the wisdom of its act.[40]

c.4 Valid JVA was duly submitted 123 of 283

The petitioners claim that private respondents Smartmatic and TIM submitted a sham joint venture agreement during the bidding process. The claim is premised on the following allegations: (i) that although Smartmatic and TIM were awarded the Automation Contract by the COMELEC on June 9, 2009, it was only on July 6, 2009 (or twenty-seven days later) that they were able to thresh out their serious differences, sign and thereafter submit their incorporation papers to the Securities and Exchange Commission; and (ii) that the provisions of the JVA do not sufficiently establish the due existence, composition and scope of the SmartmaticTIM joint venture.

As to the first allegation, it should be noted that the TOR/RFP made by the COMELEC does not require that a joint venture bidder be incorporated upon the submission of its bid. Section 2.2.4 of Part IX (B) of the TOR/RFP declares [m]anufacturers, suppliers and/or distributors forming themselves into a joint venture [...] as eligible to participate in the bidding for the 2010 Automation Project, without any incorporated vs. unincorporated dichotomy. That the TOR/RFP does not specifically call for incorporation at the time of the bidding is significant, because Philippine law admits of a distinction between simple joint ventures and ordinary corporations.[41] In Aurbach, et al. v. Sanitary Wares Manufacturing Corporation, et al.,[42] a joint venture was likened by this Court to a partnership, thus:

The legal concept of a joint venture is of common law origin. It has no precise legal definition, but it has been generally understood to mean an organization formed for some temporary purpose. It is hardly distinguishable from the partnership, since their elements are similar community of interest in the business, sharing of profits and losses, and a mutual right of control. The main distinction cited by most opinions in common law jurisdiction is that the partnership contemplates a general business with some degree of continuity, while the joint venture is formed for the execution of a single transaction, and is thus of a temporary nature. This observation is not entirely accurate in this jurisdiction, since under the Civil Code, a partnership may be particular or universal, and a particular partnership 124 of 283

may have for its object a specific undertaking. It would seem therefore that under Philippine law, a joint venture is a form of partnership and should thus be governed by the law of partnerships. The Supreme Court has however recognized a distinction between these two business forms, and has held that although a corporation cannot enter into a partnership contract, it may however engage in a joint venture with others. (Citations omitted.)

But any remaining doubt as to the need for incorporation is dispelled by Bid Bulletin No. 19[43] and Bid Bulletin No. 22,[44] issued by the COMELEC-SBAC to provide clarifications to prospective bidders. Both documents acknowledge that a bid by a joint venture may be made either through a joint venture corporation (JVC) or an

unincorporated joint venture (UJV). Bid Bulletin No. 19 provides, in relevant part:

[Question/Issue:] If the bidding will be made through an unincorporated joint venture (UJV), and the UJV wins the bid, can the UJV partners subsequently assign the contract, after its award, to a newly-formed joint venture corporation (JVC) registered with the Securities and Exchange Commission? The registered JVC will assume all rights and obligations of the UJV. Does Comelec have any requirements for allowing such assignment to the JVC?

[Answer/Clarification:] Under the General Conditions of Contract, Sec. 26.1, The supplier shall not assign his rights or obligations under this contract in whole or in part except with the Procuring entitys prior written consent. x x x

xxxx

[Question/Issue:] If the bid will be made through a joint venture (JV) (either a UJV or a JVC), is the JV required also to submit a Tax Identification No. and Value Added Tax (VAT) registration?

[Answer/Clarification:] Please see Bid Bulletin No. 13. (Emphasis supplied.)

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Likewise, Bid Bulletin No. 22 states as follows:

[Question/Issue:] How does Joint Venture apply to our group in order to follow the requirement that Filipino ownership thereof shall be at least sixty percent (60%)?

[Answer/Clarification:] The 60% Filipino participation refers to capital ownership or the Filipino contribution in the pool of financial resources required to undertake a government project. In an unincorporated joint venture, determination of the required Filipino participation may be made by examining the terms and conditions of the joint venture agreement and other supporting financial documents submitted by the joint venture. (Emphasis supplied.)

The only restriction imposed on a UJV bidder (vis--vis a JVC bidder) by the TOR/RFP and the Bid Bulletins is that the COMELEC should consent before the UJV could assign its rights to the Automation Contract to the newly formed JVC. The records show that Smartmatic and TIM complied with the consent requirement. After emerging as the winning bidder, they incorporated the Smartmatic TIM Corporation, the corporate vehicle through which the joint venture is to be carried out.[45] COMELEC acquiesced to this arrangement, for it subsequently entered into a contract with this JVC for the Automation Project.

The petitioners next assert that the JVA does not sufficiently establish the due existence, composition and scope of the Smartmatic-TIM joint venture, in violation of our ruling in Information Technology of the Philippines, et al. v. COMELEC, et al.:[46] that 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; and that [u]nder such a scenario, it will be extremely difficult for Comelec to enforce the supposed joint and several liabilities of the members of the consortium. According to the petitioners, Smartmatic and TIM did not submit documents to show the full identity of the entity it is dealing with, and who

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controls the money, how much did each of these entities invest to

(sic) the alleged joint venture, and who has control over the decision[-]making process of the alleged joint venture.

A cursory glance at the JVA belies the petitioners posture. The agreement indicates in a thorough and comprehensive manner the identity, rights, duties, commitments and covenants of the parties, as well as the purpose, capitalization, and other pertinent details in respect of the joint venture, thus: 1. Smartmatic and TIM are the members of the joint venture.[47] 2. The purpose of the JVC is to carry out and perform jointly, severally and solidarily the obligations of TIM and Smartmatic arising from being declared the winning bidder in the public bidding for the Automation Project, which obligations are spelled out in the [TOR/RFP] released by the COMELEC.[48]

3. The authorized capital stock of the JVC is one billion, three hundred million Philippine pesos (P1,300,000,000.00), divided into one billion, three hundred million common shares at one peso (P1.00) par value.[49] The capital contribution of TIM is equivalent to sixty percent (60%) of the shares to be issued by the JVC, with Smartmatic contributing the residual forty percent (40%).[50]

4. The contributions[51] of the parties are as follows:

a.

TIM (i) the value-added services pertaining or related to canvassing units, systems integration, transmission and such other services as required by the Automation Project and as indicated in the [TOR/RFP]; (ii) services pertaining or related to logistics, deployment, and manpower; (iii) hardware, software, ballot paper, consumables and such other services as may be requested by Smartmatic; and (iv) local support staff as may be required under the circumstances.

b.

Smartmatic (i) the development, manufacture and/or supply of [electronic voting machines], other machines and equipment, software, technology and systems; (ii) overall project management as required by the Automation Project and as indicated in the [TOR/RFP][52]; and (iii) any other activity not expressly written in the JVA or assigned to TIM.

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c.

Both parties (i) technical services and/or assistance to carry out the purpose of the JVC; (ii) financial assistance to the JVC; and (iii) additional capital contributions, as may be requested by the Board of Directors.

5.

TIM shall be entitled to nominate and elect 60%, and Smartmatic shall be entitled to nominate and elect 40%, of the Board of Directors of the JVC.[53]

6.

The EXCOM shall consist of at least three (3) Directors, two of whom must be Directors nominated by TIM, with the other nominated by Smartmatic.[54]

7. Profits are to be distributed to TIM and Smartmatic as may be determined by the Board of Directors under Article 4.5 or by the Shareholders under Article 5.3 of the JVA, taking into account the financial requirements of the JVC with respect to working capital.[55]

8. Any dispute or disagreement that may arise between the parties in connection with the JVA shall first be settled through mutual cooperation and consultation in good faith. Any dispute or disagreement that cannot be amicably settled between the parties shall be submitted to arbitration in Singapore, in accordance with the commercial arbitration rules of the Singapore Chamber of Commerce, the accompanying expenses in either case to be equally shared by both parties.[56]

9.

TIM and Smartmatic are jointly and severally liable to the COMELEC for the obligations of each of TIM and Smartmatic under the TOR/RFP, should they be awarded the contract for the Automation Project.[57]

Trapped in their own Catch-22, petitioners invocation of Information Technology is misplaced. The facts of that case are entirely different. In the main, no JVA or document of similar import was submitted during the bidding process to the COMELEC in Information Technology. The only evidence as to the existence of the alleged joint venture was a self-serving letter expressing that Mega Pacific eSolutions, Inc., Election.com, Ltd., WeSolv Open Computing, Inc., SK 128 of 283

C&C, and ePLDT and Oracle System (Philippines), Inc. had agreed to form a consortium to bid for the Automation Project. This notwithstanding, the COMELEC awarded the contract to the consortium. And the Court pointedly ruled:

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.

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.

xxxx

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?

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.

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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. 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.

xxxx

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 130 of 283

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.

xxxx

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. (Emphasis and underscoring supplied.)[58]

To make matters worse, the COMELEC in Information Technology awarded the bid to the consortium despite some failed marks during the technical evaluation.[59] In the case at bar, the Smartmatic-TIM Consortium passed the technical evaluation.

It is thus readily apparent that the joint venture of Smartmatic and TIM is not attended by any of the deficiencies of the MP consortium, as the agreement in the instant case states with precision the exact nature and scope of the parties respective undertakings, commitments, deliverables and covenants.[60] The petitioners repeated recourse to Information Technology betrays a highly myopic and constricted view.

c.5 No nationality requirement is violated

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Petitioners also contend that the joint venture agreement of TIM and Smartmatic violates the Filipino-foreign equity ceiling, the Anti-Dummy Law and COMELECs own bidding requirements.

I concur fully with the ponencia of Mr. Justice Velasco on this point. There is no constitutional or statutory provision classifying the lease or provision of goods and technical services for the automation of an election as a nationalized activity. To be sure, Section 12 of RA 8436, as amended by RA 9369, explicitly authorizes the COMELEC to procure supplies, equipment, materials, software, facilities, and other services from foreign sources, as follows:

SEC. 12. Procurement of Equipment and Materials. To achieve the purpose of this Act, the Commission is authorized to procure, in accordance with existing laws, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities and other services, from local or foreign sources free from taxes and import duties, subject to accounting and auditing rules and regulations. With respect to the May 10, 2010 elections and succeeding electoral exercises, the system procured must have demonstrated capability and been successfully used in a prior electoral exercise here or abroad. Participation in the 2007 pilot exercise shall not be conclusive of the system's fitness. (Emphasis supplied.)

Petitioners cannot rely on Executive Order No. 584 (EO 584), containing the Seventh Regular Foreign Investment Negative List, which cites contracts for the supply of materials, goods and commodities to [a] government-owned or controlled corporation, company, agency or municipal corporation as limited to forty percent (40%) foreign equity. The reliance cannot be countenanced in light of two basic principles of statutory construction.

First, leges posteriores priores contrarias abrogant. In case of an irreconcilable conflict between two laws of different vintages, the later enactment 132 of 283

prevails.[61] The rationale is simple: a later law repeals an earlier one because it is the later legislative will.[62] RA 9369, which allows the COMELEC to procure AES supplies and equipment from foreign sources, became law in 2007, whereas EO 584 is an executive issuance in 2006.

Second, lex specialis derogat generali. General legislation must give way to special legislation on the same subject, and generally is so interpreted as to embrace only cases in which the special provisions are not applicable.[63] In other words, where two statutes are of equal theoretical application to a particular case, the one specially designed therefor should prevail.[64] RA 9369 specifically covers a well-defined subject ( i.e., procurement for election automation), whereas EO 584 has a more universal scope.

In sum, there is no constitutional or statutory Filipino-foreign equity ceiling to speak of, and the Anti-Dummy Law does not find application to the case at bar.

Nonetheless, I wish to clarify certain matters.

It appears that in preparing the bidder eligibility requirements, the COMELEC, exercising the discretion granted by Section 12 of RA 8436, as amended by RA 9369, adopted the guidelines that were set forth in the Implementing Rules and Regulations of RA 9184 (The Government Procurement Reform Act). Thus, in Sections 2.2.1 to 2.2.4 of Part IX (B) of the TOR/RFP, the COMELEC invited the following to bid for the Automation Project:

(1) Duly licensed Filipino citizens/proprietorships;

(2) 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;

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(3) 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;

(4) 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

(5) Cooperatives duly registered with the Cooperatives Development Authority.

But for a few innocuous stylistic changes, this enumeration is an exact reproduction of Section 23.11.1[65] of the Implementing Rules and Regulations of RA 9184. Per Smartmatic TIM Corporations Articles of Incorporation, there is no question that the JVC complied with the 60-40 equity ceiling provided under the TOR/RFP. Out of a total paid-up capital of P1,130,000,000.00, TIM contributed sixty percent (60%) thereof (equivalent to P678,000,000.00), while Smartmatic paid the remaining forty percent (40%) (equivalent to P452,000,000.00).

The petitioners, however, allege that the sixty percent (60%) interest of TIM in the JVC was merely simulated. They point to certain provisions in the JVA as denoting that effective control over Smartmatic TIM Corporation was given to Smartmatic. Specifically, petitioners assail the following:

(1) The mandatory presence of at least one of the nominated Directors of Smartmatic to establish a quorum of the Board of Directors, pursuant to Article 4.3[66] of the JVA;

(2) The veto power in the Board of Directors granted by TIM to Smartmatic to authorize certain important financial and technical actions, pursuant to Article 4.5[67] of the JVA;

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(3) The mandatory presence of the Director representing Smartmatic to establish a quorum of the Executive Committee (EXECOM), pursuant to Article 4.7[68] of the JVA; and

(4) The sole right of Smartmatic to nominate the (a) Chairman of the Board, (b) the Treasurer, and (c) the Corporate Secretary, and TIMs corresponding duty to elect said nominees, pursuant to Articles 4.10[69] and 4.11[70] of the JVA.

But far from establishing the tyranny of the minority, these provisions may be viewed as legitimate minority protection devices. Through them, Smartmatic sought to protect its huge investment in the Automation Project. Without these protective provisions, Smartmatic would be helplessly exposed to the risk of being outvoted on significant corporate activities and decisions including decisions on technical matters falling within its field of expertise, for which it is primarily responsible (as against TIM) under the express terms of the COMELECs bidding rules[71] and the Automation Contract[72] itself. If that would come to pass, Smartmatic could not perform its part of the Contract and the end result would be the ruin of its investment.

To be sure, our lawmakers wanted the foreign joint venture to be autonomous in carrying out its technical functions, and intended to protect it from the whims and caprices of the non-expert majority. This can be gleaned from the April 20, 2009 hearing of the Joint Committee on AES, during which the following exchanges were made:

MR. MELO. Here is a scenario, Your Honor. Scantron, for instance and a Philippine Company, they have an agreement, an agreement, joint venture agreement.

THE CHAIRMAN (REP. LOCSIN). And the one who carries it out will [be] Scantron even if its 40 percent?

MR. MELO. Scantron, let us say, wins. After they win, after Scantron wins, now, the two, they form a company. 135 of 283

THE CHAIRMAN (REP. LOCSIN). Yes. But do you will you check that the ones who will carry out the project will be, in the case of Smartmatic, the guys who actually conduct elections in Venezuela and not some local boys who are just, you know, dreaming that they can do it?

MR. MELO. But the contract will now be awarded in favor of the new company? THE CHAIRMAN (REP. LOCSIN). Yes. But who will implement it?

MR. MELO. Yes, we will make them jointly and severally liable.

THE CHAIRMAN (REP. LOCSIN). Im not really worried nor do (sic) am I concerned about punishing them up after the failure of elections. I would just really want to make sure that the guys who will run this will not be the local boys but the foreign boys who have actually done it abroad. I dont want amateurs, you know, trying to prove yes, the Filipino can.

MR. MELO. Yes, Your Honor, precisely. This is speaking my mind alound (sic). Let us say, a foreign company goes into a partnership who (sic) are co-venture (sic) in system with a Philippine company. The Philippine company is usually taken for its expertise in the dispersal of the machines because [the foreign company] does not need another technical company expert in computers.

THE CHAIRMAN (REP. LOCSIN). Its the deployment of the machines.

MR. MELO. Deployment. x x x (Emphasis supplied)[73] ***

THE CHAIRMAN (SEN. ESCUDERO). x x x What legal methodology, memorandum or agreement will you be requiring to make sure that its the foreigner who knows how to run it, who will actually run the [show] and not be outvoted each time within the company, 60-40? I mean [the Filipino company] can promise that, Hindi ho, sila ang nakakaintindi, sila bahala, kami roll-out lang. But what assurance do we have and what

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legal document do you intend to require insofar as this is concerned? (Emphasis supplied)[74]

***

THE CHAIRMAN (REP. LOCSIN). x x x As I said, one of the most compelling arguments for the big guys to win, the foreigners, is that they have a reputation to defend. No Filipino has a reputation to defend in IT. In IT, theres none. The problem here is, as Senator Escudero said, a 60 percent joint venture partner. Are there any provisions you have made that would prevent them from interfering in the technical aspects of the electronic elections? What if you have the majority partners dictating how it will be done?

xxxx

THE CHAIRMAN (REP. LOCSIN). You will have to put really strict sanctions on any interference by the majority partner in the judgment of the minority partner in implementing the majority project. I dont know how thats done though. (Emphasis supplied)[75]

***

THE CHAIRMAN (REP. LOCSIN). The question we were asking Our apprehension here, Senator Escudero and myself, is that, will the 60 percent which has no track record and is Filipino and may have political affiliations, would they be in a position to influence the 40 percent minority that is the expert in electronic elections? Would the 60 percent be able to compromise the integrity of the 40 percent?

MR. RAFANAN.[76] Do you say, sir, bidder with political connections?

THE CHAIRMAN (REP. LOCSIN). Thats just an example. What were saying is that a 40 percent track record the track record of the 40 percent partner, say, Sequoia or whatever. I mean, no question. Theyre qualified but theyre always in a minority position in the joint venture company. What if the majority Filipino tells them to compromise the integrity? What measures do you take? (Emphasis supplied)[77] 137 of 283

***

THE CHAIRMAN (SEN. ESCUDERO). x x x So, ang tanong ko[,] youre awarding [the contract to] a company with a track record although may minority, minority lang siya. How sure are you na hindi siya didiktahan nung 60 percent na walang track record, walang experience, so useless yung requirement natin na may track record ka hindi naman siya ang masusunod, ang masusunod yung may-ari ng 60 percent na Filipino na walang track record at walang kaalam-alam presumably.

xxxx

THE CHAIRMAN (REP. LOCSIN). Senator Enrile, our worry is that the 60 percent may dictate on the expert 40 percent. Would a joint venture contract be able to provide some autonomy to the 40 percent expert so that they cannot be interfered with?

THE SENATE PRESIDENT. x x x [A] joint venture is a matter of contract. You have to apart from the legal requirement, you have to embed into the joint venture contract the obligation of each of the joint venturer.

THE CHAIRMAN (SEN. ESCUDERO). So, essentially...

THE SENATE PRESIDENT. Including their voice in the joint venture.

THE CHAIRMAN (SEN. ESCUDERO). So, essentially nga ho[,] we are bound and doomed to award this contract to a company majority of which will be owned by individuals or another company that has no track record to speak of? Kasi yung obligasyon na nating i-award iyang 60/40 sa Filipino company, we are obligated by law, thats what youre saying, to award it to a company majority of which will be owned by a company or individuals without any track record whatsoever?

THE CHAIRMAN (REP. LOCSIN). But Senator Enrile, can the Comelec require a particular joint venture contract that would specify the particular obligations of the

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parties and in some cases that obligation would be would protect the minoritys integrity in conducting the election?

xxxx

THE CHAIRMAN (SEN. ESCUDERO). x x x [F]or you to require or impose a requirement saying that the 40 will control the 60 is a circumvention, if at all, of the 60/40 rule as well.

THE CHAIRMAN (REP. LOCSIN). But would it not be a circumvention, say, for voting purposes for control of the corporation but not for the purely technical aspect of conducting an electronic election to protect the integrity of that undertaking?

THE CHAIRMAN (SEN. ESCUDERO). Without arguing that point, I may tend to agree with that point but the fact is, legally the question is how will you be able to overcome it?

THE CHAIRMAN (REP. LOCSIN). Can you require that in your terms of reference? MR. MELO. I suppose, Your Honor. Youre the expert here, Manong Johnny. But in the joint venture, can it not be provided that the foreign company shall have exclusive say on the technical aspect?

THE SENATE PRESIDENT. Puwede iyon.

MR. MELO. Iyon.

THE SENATE PRESIDENT. You can insist [on] that.

MR. MELO. Yes.

THE SENATE PRESIDENT. The Comelec can impose that.

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MR. MELO. Yes, insofar as the technical aspect is concerned, its only its the foreign company, the supplier of the computers, of the machines which will have exclusive say. And so the dispersal or the deployment of the machines will be another matter. (Emphasis supplied.)[78]

The petitioners find particularly repugnant Smartmatics veto power in the Board of Directors in respect of certain key financial and technical actions. In my view, however, this is but a fair and reasonable check against possible abuses by the majority stockholder. As Smartmatic is the joint venture partner having the greater experience in automated elections, it deemed it necessary to reserve to itself the veto power on these important financial matters so as not to compromise the technical aspects of the Automation Project. As far as matters other than those provided in Article 4.5 are concerned, Smartmatic does not have any veto right. This is clear from Article 4.4, which provides as follows:

4.4 Resolution on matters other than those set forth in Article 4.5 below shall be adopted by the vote of the majority of the Directors present and constituting a quorum, except as otherwise provided by law.

The same conclusion may be obtained from the deliberations of the Senate Committee on Constitutional Amendments, Revision of Codes and Laws. The following exchanges from their June 23, 2009 hearing[79] are illuminating on this point: THE CHAIRMAN. I went through your JVA and I found some provisions peculiar and interesting. In your JVA[, it] states that no board resolution shall be passed in the first place, three members of the board will belong to TIM, local, two members of the board will belong to Smartmatic, foreign, so 60-40 naman talaga iyon. My question is, under your JVA[,] it says no resolution shall be passed unless TIM with three votes, presumably majority already, can secure the vote of Smartmatic, vice versa. But vice versa is expected because you only have two votes. If TIM needs to secure one more vote from you before they can do anything, number one, there is a potential for a deadlock. Number two, is that not effective control or veto power over the company that essentially overrides or circumvents the 60-40 requirement?

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MR. FLORES. No, sir. Thats a standard practice to protect minority investors and it only relates to certain key decisions not to the whole development of the project.

THE CHAIRMAN. Major decisions?

MR. FLORES. Yes, sir.

THE CHAIRMAN. We discussed this before[,] Chairman Melo, remember?

MR. MELO. Yes, Your Honor. Precisely at that time it was the suggestion of the committee, the Oversight Committee that major decisions or decisions concerning technical matters, concerning the machines will have to be made by Smartmatic. They cannot be controlled by the local partner because, otherwise, baka ho hindi naman expert yung local partner sa ano so we follow that.

xxxx THE CHAIRMAN. But my question is, still there is a 60-40 requirement. What if ayaw pumayag ng Smartmatic? So does the local company have effective control over the joint venture company? x x x

MR. RAFANAN.[80] Sir, concerning decisions that will pertain to technical problems or trouble-shooting problems in the election, we are providing in the contract that these matters will be entrusted to the foreign corporation which is Smartmatic International.

THE SENATE PRESIDENT. I assume that this provision in their agreement, between the joint venturers[,] is a function of trust between them. I suppose they have just met in this particular venture and so they do not know each other very well, so the foreign company will naturally protect want to protect itself that it will not be ousted from the venture in case of You know, you are dealing here with a certain magnitude of financial benefits. So I suppose that is intended to protect themselves.

xxxx

THE CHAIRMAN. Sir, Ill give you an example. 141 of 283

THE SENATE PRESIDENT. As collectivity ha.

THE CHAIRMAN. This is what they will on requiring [Smartmatics] one vote even if TIM, the local company, already has three votes. Approval of operating capital expenditures and budgets for the year; approval of financial statements; election or removal of corporate officers [We are] not talking technical here yet. x x x Approval of financial plans; borrowing, etcetera. Entering into or terminating an agreement involving technology transfer; delegation of powers to directors, officers and delegation of powers to committees. x x x

xxxx

THE CHAIRMAN. Financial, appointing of officials.

THE SENATE PRESIDENT. Yes, if they can be removed, if they do not have that veto power, the 60 percent can kick them out after they get the contract.

xxxx THE CHAIRMAN. But wherever it is coming from...

THE SENATE PRESIDENT. As a lawyer, from my experience, we have done that before in many cases in order to protect, to be fair, to be equitable to the people who are coming here for the first time or who are dealing with people that they do not know very well.[81] (Emphasis supplied.)

Petitioners also find objectionable Smartmatics sole right to nominate the Treasurer, Corporate Secretary and the Chairman of the Board, and TIMs corresponding duty to elect said nominees. However, the objection conveniently disregards the fact that, to maintain the balance of power, TIM in turn has the sole right to nominate the President and Chief Executive Officer and the Assistant Corporate Secretary of the joint venture corporation.[82] Pursuant to Article 4.11 of the JVA, Smartmatic is in fact obliged to cause its Directors to vote for the officers chosen by

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TIM. Moreover, as an added means to protect their respective interests in the joint venture, Smartmatic and TIM further agreed that for the validity of the resolutions contained therein, all certifications to be issued must bear the signatures of both the Corporate Secretary and the Assistant Corporate Secretary.[83]

In fine, the provisions assailed by Petitioners are reasonable under the circumstances and should be upheld as legitimate minority protection devices.

c.6 Prior Successful Use qualification has been complied with

The petitioners postulate that the PCOS machines offered by the Smartmatic TIM Corporation have not been successfully used in an electoral exercise in the Philippines or abroad, as required by Section 12 of RA 8436, as amended.[84] A quick overview of the optical scan technology is in order.

Optical scan or Marksense technology has been used for decades for standardized tests such as the Scholastic Aptitude Test (SAT).[85] The optical scan ballot is a paper-based technology that relies on computers in the counting and canvassing process. Voters make their choices by using a pencil or a pen to mark the ballot, typically by filling in an oval or by drawing a straight line to connect two parts of an arrow.[86] The ballots are counted by scanners, which may be located either at the precinct (in precinct-count systems) or at some central location (central-count systems).[87] If ballots are counted at the polling place, voters put the ballots into the tabulation equipment, which scans and tallies the votes.[88] These tallies can be captured in removable storage media, which are transported to a central tally location or are electronically transmitted from the polling place to the central tally location.[89] If ballots are centrally counted, voters drop ballots into sealed boxes; and, after the polls close, election officials transfer the sealed boxes to the central location where they run the ballots through the tabulation equipment.[90]

The central-count system (via the CCOS machines) was used during the 2008 elections in all the provinces of the ARMM except in Maguindanao. The COMELEC Advisory Council created by RA 9369 to recommend to the COMELEC the appropriate, secure, applicable, and cost-effective technology to be used in the 143 of 283

automation of elections deployed various monitors from the DOST, PPCRV and Consortium on Electoral Reforms to observe the usability of the technologies used in the ARMM elections as well as to observe the electoral process in general.[91] The CCOS machines were assessed before and during the actual elections, and the COMELEC Advisory Council eventually determined that these machines sufficiently complied with the minimum systems configuration specified in Section 6 of RA 9369.[92]

In light of this background, the question is whether the central-count system used in 2008 may be considered as substantial compliance with the prior successful use qualification set forth in Section 12 of RA 8436, as amended.

With due respect, I answer in the affirmative. It is obvious that the PCOS and CCOS machines are based on the same optical scan technology. The sole difference is that the PCOS machines dispense with the physical transportation of the ballots to the designated counting centers, since the votes will be counted in the precinct itself and the results electronically transmitted to the municipal, provincial and national Board of Canvassers. Tellingly, but for their sweeping and convenient conclusion that [e]ven if a PCOS [machine] is an OMR [Optical Mark Reader] [machine], nevertheless[,] it is totally different from a CCOS [machine], the petitioners were silent on this point.[93] In any event, the AES procured by COMELEC for the 2010 elections has been successfully used in prior electoral exercises in (i) New Brunswick, Canada; (ii) Ontario, Canada; and (iii) New York; the United States of America. The petitioners nevertheless question the certifications submitted to this effect, arguing that these were issued not to the Smartmatic-TIM joint venture, but to a third party Dominion Voting Systems.

I find this argument meritless, for it foists unto the law an imaginary requirement. As the COMELEC correctly observed, what the law requires is that the 144 of 283

system must have been successfully utilized in a prior electoral exercise, not that the provider (i.e., Smartmatic TIM Corporation) should have been the one that previously used or employed the system. Considering that the system subject of the certifications is the same one procured by the COMELEC for the 2010 elections, the prior successful use requirement has been adequately met. At any rate, the clear terms of the Licensing Agreement between Smartmatic and Dominion Voting Systems indicate that the former is the entity licensed exclusively by the latter to use the system in the Philippines.

c.7 COMELECs determination as to minimum systems capabilities of the PCOS machines must be respected

This Court is neither constitutionally permitted nor institutionally outfitted to conduct a cost-benefit analysis of the system or of the nuances of the available technology. It is ill-equipped to deal with the complex and difficult problems of election administration. This inordinately difficult undertaking requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and the executive branches of government.

The petitioners contend that the PCOS machines do not comply with the minimum system capabilities[94] set forth by Section 6 of RA 8436, as amended. Then, in an entirely speculative exercise, they conjure a perturbing series of doomsday scenarios that would allegedly result from using this particular technology: unaddressed logistical nightmares, failure of elections, and massive disenfranchisement.

Let me preface my discussion of this issue by accentuating once more the core of RA 8346, as amended: the COMELEC, an independent Constitutional Commission armed with specialized knowledge born of years of experience in the conduct of 145 of 283

elections, has the sole prerogative to choose which AES to utilize.[95] In carrying out this mandate, Section 6 of the same law directs the COMELEC to develop and adopt, with the assistance of the COMELEC Advisory Council, an evaluation system to ascertain that the minimum system capabilities are met.

The COMELEC did in fact adopt a rigid technical evaluation system composed of twenty-six criteria, against which the procured AES was benchmarked by the TWG to determine its viability and concomitant security.[96] In this regard, the TWG ascertained that the PCOS machines PASSED all tests as required in the 26-item criteria,[97] as follows:

ITEM[98]

REQUIREMENT

1

Does the system allow manual feeding of a ballot into the PCOS machine?

2

Does the system scan a ballot sheet at the speed of at least 2.75 inches per second?

3

Is the system able to capture and store in an encrypted format the digital images of the ballot for at least 2,000 ballot sides (1,000 ballots, with back to back printing)?

REMARK / DESCRIPTION Yes. The proposed PCOS machine accepted the test ballots which were manually fed one at a time. Yes. A 30-inch ballot was used in this test. Scanning the 30-inch ballot took 2.7 seconds, which translated to 11.11 inches per second. Yes. The system captured the images of 1,000 test ballots in encrypted format. Each of the 1,000 image files contained the images of the front and back sides of the ballot, totaling 2,000 ballot sides. To verify the captured ballot images, decrypted copies of the encrypted 146 of 283

4

Is the system a fully integrated single device as described in item no. 4 of Component 1-B?

5

Does the system have a scanning resolution of at least 200 dpi?

files were also provided. The same were found to be digitalized representations of the ballots cast. Yes. The proposed PCOS is a fully integrated single device, with built-in printer and built-in data communication ports (Ethernet and USB). Yes. A portion of a filled[-]up marked oval was blown up using image editor software to reveal the number of dots per inch. The sample image showed 200 dpi. File properties of the decrypted image file also revealed 200 dpi. Yes. 30 shades of gray were scanned in the test PCOS machine, 20 of which were recognized, exceeding the required 4bit/16 levels of gray as specified in Bid Bulletin No. 19. Yes. The system required the use of a security key with different sets of passwords/PINs for Administrator and Operator users.

6

Does the system scan in grayscale?

7

Does the system require authorization and authentication of all operators, such as, but not limited to, usernames and passwords, with multiple user access levels? Does the system have an Yes. The PCOS machine electronic display? makes use of an LCD

8

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9

Does the system employ error handling procedures, including, but not limited to, the use of error prompts and other related instructions?

10

Does the system count the voters vote as marked on the ballot with an accuracy rating of at least 99.995 %?

display to show information: if a ballot may be inserted into the machine; if a ballot is being processed; if a ballot is being rejected; on other instructions and information to the voter/operator. Yes. The PCOS showed error messages on its screen whenever a ballot is rejected by the machine and gives instructions to the voter on what to do next, or when there was a ballot jam error. Yes. Two rounds of tests were conducted for this test using only valid marks/shades on the ballots. 20,000 marks were required to complete this test, with only one (1) allowable reading error. 625 ballots with 32 marks each were used for this test. During the comparison of the PCOSgenerated results with the manually prepared/predetermined results, it was found out that there were seven (7) marks which were inadvertently missed out 148 of 283

during ballot preparation by the TWG. Although the PCOS-generated results turned out to be 100% accurate, the 20,000-mark [requirement] was not met thereby requiring the test to be repeated.

11

To prepare for other possible missed out marks, 650 ballots (with 20,800 marks) were used for the next round of test, which also yielded 100% accuracy. Does the system detect Yes. This test made use of and reject fake or one (1) photocopied spurious, and ballot and one (1) repreviouslyscanned created ballot. Both were ballots? rejected by the PCOS.

12

Does the system scan both sides of a ballot and in any orientation in one pass?

13

Does the system have necessary safeguards to

The test for the rejection of previously-scanned (sic) ballots was done during the end-to-end demonstration. Yes. Four (4) ballots with valid marks were fed into the PCOS machine in the four (4) portrait orientations specified in Bid Bulletin No. 4 (either back or front, upside down or right side up), and all were accurately captured. Yes. The system was able to recognize if the 149 of 283

determine the authenticity of a ballot, such as, but not limited to, the use of bar codes, holograms, color shifting ink, micro printing, to be provided on the ballot, which can be recognized by the system?

14

security features on the ballot are missing. Aside from the test on the fake or spurious ballots (Item No. 11), three (3) test ballots with tampered bar codes and timing marks were used and were all rejected by the PCOS machine.

The photocopied ballot in the test for Item No. 11 was not able to replicate the UV ink pattern on the top portion of the ballot[,] causing the rejection of the ballot. Are the names of the Yes. Two sample test candidates pre-printed on ballots of different the ballot? lengths were provided: one (1) was 14 inches long while the other was 30 inches long. Both were 8.5 inches wide. The first showed 108 preprinted candidate names for fourteen (14) contests / positions, including two (2) survey questions on gender and age group, and a plebiscite question. The other showed 609 pre-printed candidate names, also for fourteen (14) positions, including

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15

Does each side of the ballot sheet accommodate at least 300 names of candidates with a minimum font size of 10, in addition to other mandatory information required by law?

three (3) survey questions. Yes. The 30-inch ballot, which was used to test Item No. 2, contained 309 names for the national positions and 300 names for local positions. The total pre-printed names on the ballot totaled 609. This type of test ballot was also used for test voting by the public, including members of the media.

16

Does the system recognize full shade marks on the appropriate space on the ballot opposite the name of the candidate to be voted for?

17

Does the system recognize partial shade marks on the appropriate space on the ballot opposite the name of the candidate to be voted for?

Arial Narrow, font size 10, was used in the printing of the candidate names. Yes. The ballots used for the accuracy test (Item No. 10), which made use of full shade marks, were also used in this test and were accurately recognized by the PCOS machine. Yes. Four (4) test ballots were used with one (1) mark each per ballot showing the following pencil marks: top half shade; bottom half shade; left half shade; and right half shade[.]

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18

19

20

21

Does the system recognize check marks on the appropriate space on the ballot opposite the name of the candidate to be voted for? Does the system recognize x marks on the appropriate space on the ballot opposite the name of the candidate to be voted for? Does the system recognize both pencil and ink marks on the ballot?

These partial shade marks were all recognized by the PCOS machine. Yes. One (1) test ballot with one check mark, using a pencil, was used for this test. The mark was recognized successfully. Yes. One (1) yes ballot with one x mark, using a pencil, was used for this test. The mark was recognized successfully. Yes. The 1000 ballots used in the accuracy test (Item No. 10) were marked using the proposed marking pen by the bidder.

A separate ballot with one (1) pencil mark was also tested. This mark was also recognized by the PCOS machine. Moreover, the tests for Items No. 17, 18 and 19 were made using pencil marks on the ballots. In a simulation of a Yes. Five (5) ballots were system shut down, does used in this test. The the system have error power cord was pulled recovery features? from the PCOS while the 3rdballot was in the middle of the scanning procedure, such that it was left hanging in the ballot reader. 152 of 283

After resumption of the regular power supply, the PCOS machine was able to restart successfully with notification to the operator that there were two (2) ballots already cast in the machine. The hanging 3rdballot was returned to the operator and was able to be re-fed into the PCOS machine. The marks on all five (5) were all accurately recognized. Yes. The PCOS was able to transmit to the CCS during the end-to-end demonstration using [a] Globe prepaid [i]nternet kit. Yes. The PCOS saves a backup copy of the ERs, ballot images, statistical report and audit log into a Compact Flash (CF) card. Yes. A 12-volt 18AH battery lead acid was used in this test.

22

Does the system have transmission and consolidation/canvassing capabilities?

23

Does the system generate a backup copy of the generated reports, in a removable data storage device? Does the system have alternative power sources, which will enable it to fully operate for at least The initial test had to be 12 hours? repeated due to a short circuit, after seven (7) hours from start-up without ballot scanning. This was explained by TIM-Smartmatic to be (sic) caused by noncomputable wiring of the

24

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battery to the PCOS. A smaller wire than what is required was inadvertently used, likening the situation to incorrect wiring of a car battery. Two (2) COMELEC electricians were called to confirm TIM-Smartmatics explanation. The PCOS machine was connected to regular power and started up successfully.

25

The following day, the retest was completed in 12 hours and 40 minutes, starting from the initialization to the printing of the reports. 984 ballots were fed into the machine. The ER, as generated by the PCOS[,] was compared with the predetermined result, showing 100% accuracy. Is the system capable of Yes. The PCOS prints generating and printing reports via its built-in reports? printer[,] which [reports] include: 1. Initialization Report 2. Election Returns (ER) 3. PCOS Statistical Report 4. Audit Log 154 of 283

26

Did the bidder successfully demonstrate EMS, voting, counting, consolidation/canvassing and transmission? (see B. Demo model)

Yes. An end-to-end demonstration of all proposed systems was presented, covering: importing of election data into the EMS; creation of election configuration data for the PCOS and the CCS using EMS; creation of ballot faces using EMS; configuring the PCOS and the CCS using the EMS-generated election configuration file; initialization, operation, generation of reports and backup using the PCOS; electronic transmission of results ... : o from the PCOS to city/municipal CCS and to the central server; o from the city/municipal CCS to the provincial CCS; o from the provincial CCS to the national CCS; receipt and canvass of transmitted results:

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o

by the city/municipal CCS from the PCOS; o by the provincial CCS from the city/municipal CCS; o by the national CCS from the provincial CCS; receipt of transmitted results by the central server from the PCOS

We cannot close our eyes to the fact that the TWGs technical evaluation of the AES was corroborated by knowledgeable and impartial third parties: the law-mandated Official Observers. In their respective reports to the COMELEC, the PPCRV and the Office of the Ombudsman found the system procured and the attendant COMELEC proceedings to be consistent, transparent, and in consonance with the relevant laws, jurisprudence and the terms of reference.[99]

Accordingly, I do not find any grave abuse of discretion on the part of the COMELEC in awarding the Automation Contract to the Smartmatic TIM Corporation. It has approved the PCOS system, and we are bereft of the right to supplant its judgment. Hoary is the principle that the courts will not interfere in matters that are addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under their special technical knowledge and training.[100] Our disquisition in the seminal caseSumulong v. COMELEC[101] again finds cogent application:

The Commission on Elections is a constitutional body. It is intended to play a distinct and important part in our scheme of government. In the discharge of its functions, 156 of 283

it should not be hampered with restrictions that would be fully warranted in the case of a less responsible organization. The Commission may err, so this court may also. It should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the greater objective for which it was created free, orderly and honest elections. We may not fully agree with its choice of means but unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere. Politics is a practical matter, and political questions must be dealt with realistically not from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derive from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions.

xxxx

There are no ready-made formulas for solving public problems. Time and experience are necessary to evolve patterns that will serve the ends of good government. In the matter of the administration of the laws relative to the conduct of elections, ..., we must not by any excessive zeal take away from the Commission on Elections the initiative which by constitutional and legal mandates properly belongs to it. Due regard to the independent character of the Commission, as ordained in the Constitution, requires that the power of this Court to review the acts of that body should, as a general proposition, be used sparingly, but firmly in appropriate cases. We are not satisfied that the present suit is one of such cases. (Emphasis supplied.)

As the ultimate guardian of the Constitution, we have the distinguished but delicate

duty of determining and defining constitutional meaning, divining constitutional intent, and deciding constitutional disputes.[102] Nonetheless, this power does not spell judicial superiority (for the judiciary is coequal with the other branches) or judicial tyranny (for it is supposed to be the least dangerous branch).[103] Thus, whenever the Court exercises its function of checking the excesses of any branch of government, it is also duty-bound to check itself.[104] The system of divided and interlocking powers of the branches of government are carefully blended so as to produce a complex system of checks and balances that preserve the autonomy of each branch, without which independence can become supremacy.

Petitioners disparage the technical test and end-to-end demonstration conducted by the COMELEC for having been done merely for media mileage. This baseless accusation is easily dismissed by repairing to the presumption of regularity of

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official acts. As we ruled in The Province of Agusan del Norte v. Commission on Elections, et al.: Appropriately, the Constitution invests the COMELEC with broad power to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite and other electoral exercises. In the discharge of its legal duties, the COMELEC is provided by the law with tools, ample wherewithal, and considerable latitude in adopting means that will ensure the accomplishment of the great objectives for which it was created to promote free, orderly and honest elections.[105] Conceived by the charter as the effective instrument to preserve the sanctity of popular suffrage, endowed with independence and all the needed concomitant powers, COMELEC deserves to be accorded by the Court the greatest measure of presumption of regularity in its course of action and choice of means in performing its duties, to the end that it may achieve its designed place in the democratic fabric of our government.[106] (Emphasis supplied.)

The COMELEC is a constitutional body, mandated to play a distinct and important role in the governmental scheme. In the performance of its constitutional duties, it must be given a range of authority and flexibility, for the art of good government requires cooperation and harmony among the branches. We may not agree fully with the choices and decisions that the COMELEC makes, but absent any constitutional assault, statutory breach or grave abuse of discretion, we should never substitute our judgment for its own. c.8 No abdication by the COMELEC of its duty to enforce election laws

The petitioners assert that the COMELEC abdicated its constitutional duty to enforce and administer all laws relative to the conduct of elections, and to decide all questions affecting elections when it entered into the Automation Contract with Smartmatic TIM Corporation.

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Article 3.3 of the contract for the 2010 Elections Automation Project provides:

Article 3.3 The PROVIDER shall be liable for all its obligations under this Project, and the performance of portions thereof by other persons or entities not parties to this Contract shall not relieve the PROVIDER of said obligations and concomitant liabilities.

SMARTMATIC, as the joint venture partner with the greater track record in automated elections, shall be in charge of the technical aspects of the counting and canvassing software and hardware, including transmission configuration and system integration. SMARTMATIC shall also be primarily responsible for preventing and troubleshooting technical problems that may arise during the election.

The PROVIDER must provide to SMARTMATIC at all times the support required to perform the above responsibilities. (Emphasis supplied.)

Petitioners claim that under this Article 3.3, the COMELEC has surrendered to Smartmatic the supervision and control of the system to be used for the AES in violation of section 26 of RA 8436.

The petitioners also refer to COMELEC Bid Bulletin No. 10,[107] which was made an integral part of the Automation Contract by virtue of Articles 21.1 and 21.4 of the contract.[108] Bid Bulletin No. 10 provides that the digital signature shall be assigned by the winning bidder to all members of the Board of Election Inspectors (BOI) and the city, municipal, provincial or district Board of Canvassers (BOC). Since Smartmatic would have access to the

digital signatures and would have the authority to assign the access keys to the BEI and BOC, the petitioners readily conclude that the COMELEC has abdicated its constitutional mandate to enforce election laws. What the petitioners failed to consider is that, although the digital signature shall be assigned by the winning bidder, Bid Bulletin No. 10 further provides that the certificate of authority for the digital signatures must still be approved by the COMELEC. Thus, the COMELEC retains control over the process of generation and distribution of the digital signatures.

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Abdication denotes a relinquishment or surrender of authority, which has not been done by the COMELEC. Part II of the TOR/RFP provides:

The Commission on Elections (COMELEC), through its Bids and Awards Committee (BAC), is currently accepting bids for the lease, with an option to purchase, of an automated election system (AES) that will meet the following needs:

xxxx

6. A complete solutions provider, and not just a vendor, which can provide experienced and effective overall nationwide project management service and total customer support (covering all areas of project implementation including technical support, training, information campaign support, civil and electrical works service, warehousing, deployment, installation and pullout, contingency planning, etc.), under COMELEC supervision and control, to ensure effective and successful implementation of the Project. (Emphasis supplied.)

The COMELEC identified the type of technology, specifications and capabilities of the system to be used in the 2010 elections; and the bidders were required to submit their bids in accordance with the COMELECs stipulations. All the choices made by the winning bidder were to be subject to approval by the COMELEC, and the final design and functionality of the system shall still be subject to [its] final customization requirements.[109]

It is clear that the COMELEC has not abdicated its constitutional and legal mandate to control and supervise the elections. Smartmatic and TIM are merely service providers or lessors of goods and services to the Commission. Indeed, Article 6.7 of the Automation Contract, provides that the entire process of voting, counting, transmission, consolidation and canvassing of votes shall be conducted by COMELECs personnel and officials. 160 of 283

This control and supervision by the COMELEC was assured in the June 23, 2009 hearing of the Senate Committee on Constitutional Amendments and Revision of Codes and Laws. This is reflected in the following exchange between Senator Francis Escudero and COMELEC Executive Director Jose Tolentino, thus:

THE CHAIRMAN. Will you deputize the workforce of the winning bidder? Or are you going to deputize by way of additional technological support the students?

MR. TOLENTINO. It would be the students, Mr. Chairman, whom we will deputize.

With respect to the providers (sic) technical support, we consider them as partners. So, there is really no need for us to deputize them because the supervision and control over the counting center would be solely on the part of the Comelec.

THE CHAIRMAN. Pero pwede ho nilang pakialaman yung makina, hindi po ba? Puwede nilang kalikutin yon, galawin yon, kasi nga kung may palpak, di ba?

So theyre employees of Smartmatic without any counterpart authorization or deputization from Comelec. So, anyone can just walk in [and] say, I am an employee of Smartmatic. Something is wrong with the machine. Ill check it.

MR. TOLENTINO. No. It doesnt work that way, Mr. Chairman.

First of all, aside from our EO who would be going around all over the municipality to check on the polling centers, Comelec aside from our Information Technology Department personnel, would also be going around to determine the status of the machines on election day.

And I am even sure that the watchers of the political parties and the candidates will [not] allow anyone to touch a machine if he is not a member of the Board of Election Inspector (sic). 161 of 283

THE CHAIRMAN. But sir, the workforce of on-site technicians are not allowed to touch the machines? Something is wrong with the machine, who is authorized to...

MR. TOLENTINO. Yes, sir. Only when there is a problem with the machine.

THE CHAIRMAN. Precisely my point, sir. So, then these people be at least known to Comelec.

MR. TOLENTINO. Yes, Mr. Chairman. In fact, theyll be given appropriate identification cards...

THE CHAIRMAN. From Comelec.

MR. TOLENTINO. Yes, Mr. Chairman.

THE CHAIRMAN. That was my question, sir. Because you said a while ago, theyre employees only of Smartmatic and you have BEI, anyway.

So, ... under the control and supervision din sila ng Comelec.

MR. TOLENTINO. Yes, Mr. Chairman.

THE CHAIRMAN. Yes. (Emphasis supplied.)[110]

Finally, the power and duty of the COMELEC to administer election laws and to have control and supervision over the automated elections is not incompatible with the decision to subcontract services that may be better performed by those who are well-equipped to handle complex technological matters with respect to the implementation of the AES. The subcontractor cannot act independently of the COMELEC. 162 of 283

D. Conclusion We are not unaware of the many doomsday scenarios peddled by doubting Thomases if the coming May 2010 elections will be fully automated. To downgrade these scenarios, let it be emphasized that the PCOS System procured by COMELEC is a paper-based system. It has a provision for system auditability and a voterverified paper trail. The official ballots may be compared with their digital images stored in the memory cards. All actions done on the machine are stored and can be printed out by the BEI chairperson as an audit log, which includes time stamps. And in the event of problems arising from non-functioning PCOS machines, the official ballots cast in the precincts, which have previously been fed into the locked ballot box, could be used for a manual recount. With these safeguards, the fear of automation failure should not overwhelm us.

We have been bedevilled in the past by elections that are not free, fair and honest. These elections have made a mockery of our democracy for they frustrated the sovereign right of the people to choose who ought to rule them. These elections have also resulted in instability of governments whose legitimacy has been placed in doubt. All these elections were conducted manually. For the first time, we shall be conducting our May 2010 elections through full automation. To be sure, full automation will not completely cleanse the dirt in our electoral system. But it is a big forward step which can lead us to the gateway of real democracy where the vote of the people is sacred and supreme.

Accordingly, I vote to DISMISS the petition.

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Republic of the Philippines SUPREME COURT Manila

EN BANC

H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. BAGARES, ALLAN JONES F. LARDIZABAL, GILBERT T. ANDRES, IMMACULADA D. GARCIA, ERLINDA T. MERCADO, FRANCISCO A. ALCUAZ, MA. AZUCENA P. MACEDA, and ALVIN A. PETERS, Petitioners, - versus -

G.R. No. 188456 Present: PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, 165 of 283

COMMISSION ON ELECTIONS, Represented by HON. CHAIRMAN JOSE MELO, COMELEC SPECIAL BIDS and AWARDS COMMITTEE, represented by its CHAIRMAN HON. FERDINAND RAFANAN, DEPARTMENT OF BUDGET and MANAGEMENT, represented by HON. ROLANDO ANDAYA, TOTAL INFORMATION MANAGEMENT CORPORATION and SMARTMATIC INTERNATIONAL CORPORATION, Respondents.

PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ.

PETE QUIRINO-QUADRA, Petitioner-in-Intervention.

Promulgated: February 10, 2010

SENATE OF THE PHILIPPINES, represented by its President, JUAN PONCE ENRILE, Movant-Intervenor. x-----------------------------------------------------------------------------------------x RESOLUTION

VELASCO, JR., J.: By Decision dated September 10, 2009, the Court denied the petition of H. Harry L. Roque, Jr., et al. for certiorari, prohibition, and mandamus to nullify the contract-award of the 2010 Election Automation Project to the joint venture of Total Information Management Corporation (TIM) and Smartmatic International 166 of 283

Corporation (Smartmatic). The Court also denied the petition-in-intervention of Pete Q. Quadra, praying that the respondents be directed to implement the minimum requirements provided under pars. (f) and (g), Section 6 of Republic Act No. (RA) 8436, or the Election Modernization Act, as amended by RA 9369.

Petitioners Roque, et al. are again before the Court on a motion for reconsideration, as supplemented, praying, as they did earlier, that the contract award be declared null and void on the stated ground that it was made in violation of the Constitution, statutes, and jurisprudence.[1] Intervening petitioner also interposed a similar motion, but only to pray that the Board of Election Inspectors be ordered to manually count the ballots after the printing and electronic transmission of the election returns.

To both motions, private respondents TIM and Smartmatic, on the one hand, and public respondents Commission on Elections (Comelec), et al., on the other, have interposed their separate comments and/or oppositions.

As may be recalled, the underlying petition for certiorari, etc. on its face assailed the award by Comelec of the poll automation project to the TIM-Smartmatic joint venture, the challenge basically predicated on the non-compliance of the contract award with the pilot-testing requirements of RA 9369 and the minimum system capabilities of the chosen automated election system (AES), referring to the Precinct Count Optical Scan (PCOS) system. The non-submission of documents to show the existence and scope of a valid joint venture agreement between TIM and Smartmatic was also raised as a nullifying ground, albeit later abandoned or at least not earnestly pursued.

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The Court, in its September 10, 2009 Decision, dismissed the petition and the petition-in-intervention on the following main grounds: (1) RA 8436, as amended, does not require that the AES procured or, to be used for the 2010 nationwide fully automated elections must, as a condition sine qua non, have been pilot-tested in the 2007 Philippine election, it being sufficient that the capability of the chosen AES has been demonstrated in an electoral exercise in a foreign jurisdiction; (2) Comelec has adopted a rigid technical evaluation mechanism to ensure compliance of the PCOS with the minimum capabilities standards prescribed by RA 8436, as amended, and its determination in this regard must be respected absent grave abuse of discretion; (3) Comelec retains under the automation arrangement its supervision, oversight, and control mandate to ensure a free, orderly, and honest electoral exercise; it did not, by entering into the assailed automation project contract, abdicate its duty to enforce and administer all laws relative to the conduct of elections and decide, at the first instance, all questions affecting elections; and (4) in accordance with contract documents, continuity and back-up plans are in place to be activated in case the PCOS machines falter during the actual election exercise.

Petitioners Roque, et al., as movants herein, seek a reconsideration of the September 10, 2009 Decision on the following issues or grounds: 1. The Comelecs public pronouncements show that there is a high probability that there will be failure of automated elections;

2. Comelec abdicated its constitutional functions in favor of Smartmatic;

3. There is no legal framework to guide the Comelec in appreciating automated ballots in case the PCOS machines fail;

4. Respondents cannot comply with the requirements of RA 8436 for a source code review; 168 of 283

5. Certifications submitted by private respondents as to the successful use of the machines in elections abroad do not fulfill the requirement of Sec. 12 of RA 8436;

6. Private respondents will not be able to provide telecommunications facilities that will assure 100% communications coverage at all times during the conduct of the 2010 elections; and

7. Subcontracting the manufacture of PCOS machines to Quisdi violates the Comelecs bidding rules.

Both public and private respondents, upon the other hand, insist that petitioners motion for reconsideration should be held devoid of merit, because the motion, for the most part, either advances issues or theories not raised in the petition for certiorari, prohibition, and mandamus, and argues along speculative and conjectural lines.

Upon taking a second hard look into the issues in the case at bar and the arguments earnestly pressed in the instant motions, the Court cannot grant the desired reconsideration.

Petitioners threshold argument delves on possibilities, on matters that may or may not occur. The conjectural and speculative nature of the first issue raised is reflected in the very manner of its formulation and by statements, such as the public pronouncements of public respondent COMELEC[2] x x x clearly show that there is a high probability that there will be automated failure of elections;[3] there is a high probability that the use of PCOS machines in the May 2010 elections will result in failure of elections;[4] the unaddressed logistical nightmaresand the lack of contingency plans that should have been crafted as a result of a pilot testmake an automated failure of elections very probable;[5]and COMELEC committed grave abuse of discretion when it signed x x x the contract for full automation x x x despite the likelihood of a failure of elections.[6]

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Speculations and conjectures are not equivalent to proof; they have little, if any, probative value and, surely, cannot be the basis of a sound judgment.

Petitioners, to support their speculative venture vis--vis the possibility of Comelec going manual, have attributed certain statements to respondent Comelec Chairman Melo, citing for the purpose a news item on Inquirer.net, posted September 16, 2009.[7]

Reacting to the attribution, however, respondents TIM and Smartmatic, in their comment, described the Melo pronouncements as made in the context of Comelecs contingency plan. Petitioners, however, the same respondents added, put a misleading spin to the Melo pronouncements by reproducing part of the news item, but omitting to make reference to his succeeding statements to arrive at a clearer and true picture.

Private respondents observation is well-taken. Indeed, it is easy to selectively cite portions of what has been said, sometimes out of their proper context, in order to assert a misleading conclusion. The effect can be dangerous. Improper meaning may be deliberately attached to innocent views or even occasional crude comments by the simple expediency of lifting them out of context from any publication. At any event, the Court took it upon itself to visit the website, whence petitioners deduced their position on the possible failure of automated elections in problem areas and found the following items:

Allaying fears of failure of elections in 2010, the x x x [Comelec] said it will prepare for manual balloting, especially for areas with problems in electricity and telecommunications network coverage. x x x

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Aside from preparations for poll automation, Comelec is also preparing for manual elections sa mga liblib na lugar [in remote places] x x x, provinces with no electricity and would have issues in electronic transmission. We are ready for manual polls in at least 30 percent or 50 percent of the country as a last contingency measure in case the contingency plans for automation are difficult to implement, said Melo.

The poll chief was reacting to statements expressing the possibility of failure of elections due to the novelty of poll automation.

The occurrence of nationwide failure of elections as alleged by doomsayers is impossible. Under the laws of probability, all 80,000 PCOS machines nationwide cannot breakdown. Maybe several would but we have standby units for this and we also have preparations for manual elections, he said.[8] (Emphasis added.)

Petitioners next maintain that the Comelec abdicated its constitutional mandate[9] to decide all questions affecting elections when, under Article 3.3[10] of the poll automation contract, it surrendered control of the system and technical aspects of the 2010 automated elections to Smartmatic in violation of Sec. 26[11] of RA 8436. Comelec, so petitioners suggest, should have stipulated that its Information Technology (IT) Department shall have charge of the technical aspects of the elections.

Petitioners above contention, as well as the arguments, citations, and premises holding it together, is a rehash of their previous position articulated in their memorandum[12] in support of their petition. They have been considered, squarely addressed, and found to be without merit in the Decision subject hereof. The Court is not inclined to embark on another extended discussion of the same issue again. Suffice it to state that, under the automation contract, Smartmatic is given a specific and limited technical task to assist the Comelec in implementing the AES. But at the end of the day, the Smarmatic-TIM joint venture is merely a service provider and lessor of goods and services to the Comelec, which shall have exclusive supervision and control of the electoral process. Art. 6.7 of the automation contract

could not have been more clear:

6.7 Subject to the provisions of the General Instructions to be issued by the Commission En Banc, the entire process of voting, counting, transmission, 171 of 283

consolidation and canvassing of votes shall [still] be conducted by COMELECs personnel and officials and their performance, completion and final results according to specifications and within specified periods shall be the shared responsibility of COMELEC and the PROVIDER. (Emphasis added.)

The aforequoted provision doubtless preserves Comelecs constitutional and statutory responsibilities. But at the same time, it realistically recognizes the complexity and the highly technical nature of the automation project and addresses the contingencies that the novelty of election automation brings.

Petitioners posture anent the third issue, i.e, there no is legal framework to guide Comelec in the appreciation of automated ballots or to govern manual count should PCOS machines fail, cannot be accorded cogency. First, it glosses over the continuity and back-up plans that would be implemented in case the PCOS machines falter during the 2010 elections.[13] The overall fallback strategy and options to address even the worst-case scenariothe wholesale breakdown of the 80,000 needed machines nationwide and of the 2,000 reserved unitshave been discussed in some detail in the Decision subject of this recourse. The Court need not belabor them again.

While a motion for reconsideration may tend to dwell on issues already resolved in the decision sought to be reconsideredand this should not be an obstacle for a reconsiderationthe hard reality is that petitioners have failed to raise matters substantially plausible or compellingly persuasive to warrant the desired course of action.

Second, petitioners position presupposes that the Comelec is, in the meanwhile, standing idly by, totally unconcerned with that grim eventuality and the scenarios petitioners envision and depict. Comelec, to reiterate, is the constitutional body tasked to enforce and administer all laws and regulations relative to the conduct 172 of 283

of an election. In the discharge of this responsibility, Comelec has been afforded enough latitude in devising means and methods that would enable it to accomplish the great objective for which it was created. In the matter of the administration of laws relative to the conduct of elections, the Courtor petitioners for that mattermust not, by any preemptive move or any excessive zeal, take away from Comelec the initiative that by law pertains to it.[14] It should not be stymied with restrictions that would perhaps be justified in the case of an organization of lesser responsibility.[15]

Significantly, petitioners, in support of their position on the lack-of-legalframework issue, invoke the opinion of Associate, later Chief, Justice Artemio Panganiban in Loong v. Comelec,[16] where he made the following observations: Resort to manual appreciation of the ballots is precluded by the basic features of the automated election system,[17] and the rules laid down in the Omnibus Election Code (OEC) for the appreciation and counting of ballots cast in a manual election x x x are inappropriate, if not downright useless, to the proper appreciation and reading of the ballots used in the automated system.[18] Without delving on its wisdom and validity, the view of Justice Panganiban thus cited came by way of a dissenting opinion. As such, it is without binding effect, a dissenting opinion being a mere expression of the individual view of a member of the Court or other collegial adjudicating body, while disagreeing with the conclusion held by the majority.[19]

Petitioners insist next that public respondents cannot comply with the requirement of a source code[20] review as mandated by Sec. 14 of RA 8436, as amended, which provides:

SEC. 14. Examination and Testing of Equipment or Device of the AES and Opening of the Source Code of Review.Once an AES Technology is selected for implementation, the Commission shall promptly make the source code of that technology available and open to any interested political party or groups which may conduct their own review thereof.

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Pursuing the point, after citing a commentary of an IT expert on the importance of a source code review, petitioners state the observation that there are strong indications of [the inability] to comply x x x since the source code, which runs the PCOS machines, will effectively be kept secret from the people.[21]

Again, petitioners engage in an entirely speculative exercise, second- guessing what the Comelec can and will probably do, or what it cannot and probably will not do, with respect to the implementation of a statutory provision. The fact that a source code review is not expressly included in the Comelec schedule of activities is not an indication, as petitioners suggest, that Comelec will not implement such review. Comelec, in its Comment on the Motion for Reconsideration, manifests its intention to make available and open the source code to all political and interested parties, but under a controlled environment to obviate replication and tampering of the source code, thus protecting, in the process, the intellectual proprietary right of Smartmatic to the source code. Absent compelling proof to the contrary, the Court accords the Comelec, which enjoys the presumption of good faith in the performance of its duties in the first place, the benefit of the doubt. And going to another but recycled issue, petitioners would have the Court invalidate the automation contract on the ground that the certifications submitted by Smartmatic during the bidding, showing that the PCOS technology has been used in elections abroad, do not comply with Sec. 12[22] of RA 8436.

We are not convinced.

As stressed in our September 10, 2009 Decision, the AES chosen by Comelec for the 2010 elections has been successfully deployed in previous electoral exercises in foreign countries, such as Ontario, Canada and New York, USA,[23] albeit Smartmatic was not necessarily the system provider.

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Roque, et al., in their petition, had questioned the certifications to this effect, arguing that these certifications were not issued to respondent TIM-Smartmatic, but to a third party, Dominion Voting Systems. Resolving the challenge, the Court, in effect, said that the system subject of the certifications was the same one procured by Comelec for the 2010 elections. And besides, the Licensing Agreement between Smartmatic and the Dominion Voting Systems indicates that the former is the entity licensed by the latter to use the system in the Philippines.

Presently, petitioners assert that the system certified as having been used in New York was the Dominion Image Cast, a ballot marking device.

Petitioners have obviously inserted, at this stage of the case, an entirely new factual dimension to their cause. This we cannot allow for compelling reasons. For starters, the Court cannot plausibly validate this factual assertion of petitioners. As it is, private respondents have even questioned the reliability of the website [24] whence petitioners base their assertion, albeit the former, citing the same website, state that the Image Cast Precinct tabulation device refers to the Dominions PCOS machines.

Moreover, as a matter of sound established practice, points of law, theories, issues, and arguments not raised in the original proceedings cannot be brought out on review. Basic considerations of fair play impel this rule. The imperatives of orderly, if not speedy, justice frown on a piecemeal presentation of evidence[25] and on the practice of parties of going to trial haphazardly.[26]

Moving still to another issue, petitioners claim that there are very strong indications that Private Respondents will not be able to provide for 175 of 283

telecommunication facilities for areas without these facilities.[27] This argument, being again highly speculative, is without evidentiary value and hardly provides a ground for the Court to nullify the automation contract. Surely, a possible breach of a contractual stipulation is not a legal reason to prematurely rescind, much less annul, the contract.

Finally, petitioners argue that, based on news reports,[28] the TIM-Smartmatic joint venture has entered into a new contract with Quisdi, a Shanghai-based company, to manufacture on its behalf the needed PCOS machines to fully automate the 2010 elections.[29] This arrangement, petitioners aver, violates the bid rules proscribing sub-contracting of significant components of the automation project.

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

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

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

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

SO ORDERED.

PRESBITERO J. VELASCO, JR. Associate Justice

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 199082

July 23, 2013

JOSE MIGUEL T. ARROYO, Petitioner, vs. DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE LIMA, in her capacity as Secretary of the Department of Justice; HON. SIXTO BRILLANTES, JR., in his capacity as Chairperson of the Commission on Elections; and the JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE and FACT-FINDING TEAM, Respondents. x-----------------------x G.R. No. 199085 BENJAMIN S. ABALOS, SR., Petitioner, vs. HON. LEILA DE LIMA, in capacity as Secretary of Justice; HON. SIXTO S. BRILLANTES, JR., in his capacity as COMELEC Chairperson; RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO V. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM AND AUGUSTO C. LAGMAN, in their capacity as COMELEC COMMISSIONERS; CLARO A. ARELLANO, GEORGE C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D. VILLARET, in their capacity as CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE ON THE 2004 AND 2007 ELECTION FRAUD,Respondents. x-----------------------x G.R. No. 199118 GLORIA MACAPAGAL-ARROYO, Petitioner, vs. COMMISSION ON ELECTIONS, represented by Chairperson Sixto S. Brillantes, Jr., DEPARTMENT OF JUSTICE, represented by Secretary Leila M. De Lima, JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE, SENATOR AQUILINO M. PIMENTEL III, and DOJ-COMELEC FACT FINDING TEAM,Respondents. RESOLUTION PERALTA, J.: For resolution are the separate motions for reconsideration filed by movants Gloria Macapagal Arroyo (GMA)1 in G.R. No. 199118 and Jose Miguel T. Arroyo (Mike Arroyo )2 in G.R. No. 199082 praying that the Court take a second look at our September 18, 2012 Decision3 dismissing their petitions and supplemental petitions against respondents Commission on Elections (Comelec), the Department of Justice (DOJ), Senator Aquilino M. Pimentel III (Senator Pimentel), Joint DOJ-Comelec Preliminary Investigation Committee (Joint Committee) and DOJ-Comelec Fact-Finding Team (Fact-Finding Team), et al.

For a better perspective, we briefly state the relevant factual and procedural antecedents as found by the Court in the assailed decision, to wit:

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On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011 creating and constituting a Joint Committee and Fact-Finding Team (referred to as Joint Panel) on the 2004 and 2007 National Elections electoral fraud and manipulation cases. The Joint Committee was mandated to conduct the necessary preliminary investigation on the basis of the evidence gathered and the charges recommended by the Fact-Finding Team. The Fact-Finding Team, on the other hand, was created for the purpose of gathering real, documentary, and testimonial evidence which can be utilized in the preliminary investigation to be conducted by the Joint Committee. Pursuant to Section 74 of the Joint Order, on August 23, 2011, the Joint Committee promulgated its Rules of Procedure.

In its Initial Report5 dated October 20, 2011, the Fact-Finding Team concluded that manipulation of the results in the May 14, 2007 senatorial elections in the provinces of North and South Cotabato, and Maguindanao was indeed perpetrated.6 The Fact-Finding Team recommended, among others, that petitioner Benjamin S. Abalos, Sr. (Abalos) be subjected to preliminary investigation for electoral sabotage for conspiring to manipulate the election resul ts in North and South Cotabato; that GMA and Abalos be subjected to another preliminary investigation for manipulating the election results in Maguindanao;7 and, that Mike Arroyo be subjected to further investigation.8 The case was docketed as DOJ-Comelec Case No. 001-2011.

Meanwhile, on October 17, 2011, Senator Pimentel filed a ComplaintAffidavit9 for Electoral Sabotage against petitioners and twelve others, and several John Does and Jane Does. The case was docketed as DOJ-Comelec Case No. 002-2011.

On October 24, 2011, the Joint Committee issued two subpoenas against petitioners in DOJ-Comelec Case Nos. 001-2011 and 002-2011.10 On November 3, 2011, petitioners, through counsel, appeared before the Joint Committee11 and respondents therein were ordered to submit their Counter-Affidavits by November 14, 2011.12

Thereafter, petitioners filed before the Court separate Petitions for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction assailing the creation of the Joint Panel.13 The petitions were eventually consolidated. On November 14, 2011, Mike Arroyo filed a Motion to Defer Proceedings14 before the Joint Committee, in view of the pendency of his petition before the Court. On the same day, GMA filed before the Joint Committee an Omnibus Motion Ad Cautelam15 to require Senator Pimentel to furnish her with documents referred to in his complaint-affidavit and for the production of election documents as basis for the charge of electoral sabotage. GMA prayed that she be allowed to file her counter-affidavit within ten (10) days from receipt of the requested documents.16Petitioner Abalos, for his part, filed a Motion to Suspend Proceedings (Ex Abundante Ad Cautelam),17 in view of the pendency of his petition brought before the Court.

In an Order18 dated November 15, 2011, the Joint Committee denied the aforesaid motions of petitioners. GMA, subsequently, filed a motion for reconsideration.19 On November 16, 2011, the Joint Committee promulgated a Joint Resolution which was later indorsed to the Comelec.20 On November 18, 2011, the Comelec en banc issued a Resolution21 approving and adopting the Joint Resolution subject to modifications. The Comelec resolved, among others, that an information for electoral sabotage be filed against GMA and Abalos, while the charges against Mike Arroyo be dismissed for insufficiency of evidence.

On even date, pursuant to the above Resolution, the Comelec’s Law Department filed with the Regional Trial Court (RTC), Pasay City, an Information against petitioner GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H. Bedol, for violation of Section 42(b)(3) of Republic Act (RA) No. 9369, amending Section 27 (b) of RA 6646, docketed as Criminal Case No. RPSY-11-04432-CR.22 The case was raffled to Branch 112 and the corresponding Warrant of Arrest was issued which was served on GMA on the same day.23

On November 18, 2011, GMA filed with the RTC an Urgent Omnibus Motion Ad Cautelam 24 with leave to allow the Joint Committee to resolve the motion for reconsideration filed by GMA, to defer issuance of a warrant of arrest and a hold departure order, and to proceed to judicial determination of probable cause. She, likewise, filed with the Comelec a Motion to Vacate Ad Cautelam25 praying that its Resolution be vacated for being null and void. The RTC, nonetheless, issued a Warrant for her arrest which was duly served. GMA was later arraigned and she entered a plea of "not guilty." She was, for some time, on hospital arrest but was able to obtain temporary liberty when her motion for bail was granted. At present, she is again on hospital arrest by virtue of a warrant issued in another criminal case.

On September 18, 2012, the Court rendered the assailed Decision, the dispositive portion of which reads: WHEREFORE, premises considered, the petitions and supplemental petitions are DISMISSED. Comelec Resolution No. 9266 dated August 2, 2011, Joint Order No. 001-2011 dated August 15, 2011,

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and the Fact- Finding Team’s Initial Report dated October 20, 2011, are declared VALID. However, the Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack of publication. In view of the constitutionality of the Joint Panel and the proceedings having been conducted in accordance with Rule 112 of the Rules on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure, the conduct of the preliminary investigation is hereby declared VALID. Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where the criminal cases for electoral sabotage against petitioners GMA and Abalos are pending, proceed with dispatch. SO ORDERED.26 Hence, these motions for reconsideration. Issues Mike Arroyo reiterates his arguments on the independence of the Comelec as basis in nullifying the subject joint DOJ-Comelec resolutions. Echoing Justice Arturo Brion in his Dissenting and Concurring Opinion,27 Mike Arroyo insists that the creation of the Joint Panel undermines the decisional independence of the Comelec.28 Mike Arroyo also maintains that the DOJ should conduct preliminary investigation only when deputized by the Comelec but not exercise concurrent jurisdiction.29 Finally, as has been repeatedly pointed out in his earlier pleadings before the Court, Mike Arroyo claims that the proceedings involving the electoral sabotage case were rushed because of pressures from the executive branch of the government.30

For her part, GMA claims that in availing of the procedural remedies available, she merely exercised her earnest efforts to defend herself and should not have been deemed by the Court as acts which purportedly tend to demonstrate that she either waived or forfeited her right to submit her counteraffidavit and countervailing evidence.31 Citing several cases decided by the Court, she likewise faults the Court in not upholding her right to ask for additional time within which to submit her counter-affidavit and countervailing evidence.32 GMA highlights that the subject Comelec Resolution creating the Joint Panel is different from the previous Comelec resolutions requesting the DOJ Secretary to assign prosecutors to assist the Comelec, as the latter emphasize the role of the DOJ as deputized agency in the conduct of preliminary investigation. She maintains that it is the Comelec and not the Joint Committee that has the primary, if not exclusive, authority to conduct preliminary investigation of election cases.33

In their Consolidated Comment,34 respondents defend the creation of the Joint Committee and argue that it does not undermine the independence of the Comelec as a constitutional body because it is still the Comelec that ultimately determines probable cause.35 As to the conduct of the preliminary investigation, respondents maintain that no rights were violated as GMA was afforded the opportunity to defend herself, submit her counter-affidavit and other countervailing evidence.36 They, thus, consider GMA’s claim of availing of the remedial measures as "delaying tactics" employed to thwart the investigation of charges against her by the Joint Committee.37

The Court’s Ruling Clearly from the above discussion, movants raise issues that have been thoroughly explained by the Court in the assailed decision. The issues were all addressed and the explanation was exhaustive, thus, we find no reason to disturb the Court’s conclusions. At any rate, if only to address the motions of the movants herein and to put an end to the questions attached to the creation of the Joint Panel and, consequently, to the performance of their assigned tasks, we hereby reiterate our findings and conclusions made in the assailed decision. This is not the first time that the Court is confronted with the issue of whether the Comelec has the exclusive power to investigate and prosecute cases of violations of election laws. In Barangay Association for National Advancement and Transparency (BANAT) Party-List v. Commission on Elections,38 the constitutionality of Section 4339 of RA 936940 had already been raised by petitioners therein and addressed by the Court. While recognizing the Comelec’s exclusive power to investigate and prosecute cases under Batas Pambansa Bilang 881 or the Omnibus Election Code, the Court pointed out that the framers of the 1987 Constitution did not have such intention. This exclusivity is thus a legislative enactment that can very well be amended by Section 43 of RA 9369. Therefore, under the present law, the Comelec and other prosecuting arms of the government, such as the DOJ, now exercise concurrent jurisdiction in the investigation and prosecution of election offenses.

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Indeed, as aptly pointed out by GMA, there is a discrepancy between Comelec Resolution No. 346741 dated January 12, 2001 and Joint Order No. 001-2011, dated August 15, 2011, creating and constituting a Joint Committee and Fact-Finding Team on the 2004 and 2007 National Elections electoral fraud and manipulation cases. However, GMA seemed to miss the date when these two resolutions were promulgated by the Comelec. It is noteworthy that Comelec Resolution No. 3467 was issued when Section 265 of the Omnibus Election Code was still effective, while Joint Order No. 001-2011 as well as Comelec Resolution Nos. 873342 and 905743 mentioned in the assailed decision but missed out by GMA in her motion, were issued during the effectivity of Section 43 of RA 9369, giving the Comelec and other prosecuting arms of the government the concurrent jurisdiction to investigate and prosecute election offenses. This amendment paved the way for the discrepancy. In Comelec Resolution No. 3467, the Comelec maintained the continuing deputation of prosecutors and the Comelec Law Department was tasked to supervise the investigatory and prosecutory functions of the task force pursuant to the mandate of the Omnibus Election Code. However, with the amendment, the Comelec likewise changed the tenor of the later resolutions to reflect the new mandate of the Comelec and other prosecuting arms of the government now exercising concurrent jurisdiction. Thus, the Comelec Law Department and the Office of the Chief State Prosecutor of the DOJ were tasked to jointly supervise the investigatory and prosecutory functions of the Comelec-DOJ Task Force. Considering, therefore, that the later resolutions, including Joint Order No. 001-2011, were issued pursuant to Section 43 of RA 9369 amending Section 265 of BP 881 which was declared "constitutional" in Banat, there is no reason for us to declare otherwise. To maintain the previous role of other prosecuting arms of the government as mere deputies despite the amendment would mean challenging Section 43 of RA 9369 anew which has already been settled in Banat.

To be sure, the creation of a Joint Committee is not repugnant to the concept of "concurrent jurisdiction" authorized by the amendatory law. As we explained in our September 18, 2012 Decision: x x x The doctrine of concurrent jurisdiction means equal jurisdiction to deal with the same subject matter. Contrary to the contention of the petitioners, there is no prohibition on simultaneous exercise of power between two coordinate bodies. What is prohibited is the situation where one files a complaint against a respondent initially with one office (such as the Comelec) for preliminary investigation which was immediately acted upon by said office and the re-filing of substantially the same complaint with another office (such as the DOJ). The subsequent assumption of jurisdiction by the second office over the cases filed will not be allowed. Indeed, it is a settled rule that the body or agency that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others. xxxx None of these problems would likely arise in the present case. The Comelec and the DOJ themselves agreed that they would exercise their concurrent jurisdiction jointly. Although the preliminary investigation was conducted on the basis of two complaints – the initial report of the Fact-Finding Team and the complaint of Senator Pimentel – both complaints were filed with the Joint Committee. Consequently, the complaints were filed with and the preliminary investigation was conducted by only one investigative body. Thus, we find no reason to disallow the exercise of concurrent jurisdiction jointly by those given such authority. This is especially true in this case given the magnitude of the crimes allegedly committed by petitioners. The joint preliminary investigation also serves to maximize the resources and manpower of both the Comelec and the DOJ for the prompt disposition of the cases.44 Notwithstanding the grant of concurrent jurisdiction, the Comelec and the DOJ nevertheless included a provision in the assailed Joint Order whereby the resolutions of the Joint Committee finding probable cause for election offenses shall still be approved by the Comelec in accordance with the Comelec Rules of Procedure.45 With more reason, therefore, that we cannot consider the creation of the Joint Committee as an abdication of the Comelec’s independence enshrined in the 1987 Constitution.

Finally, we focus on the validity of the preliminary investigation conducted by the Joint Committee. The procedure in conducting the preliminary investigation is governed by Rule 112 of the Revised Rules on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure. Under both Rules,46 the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense, within ten (10) days from receipt of the subpoena, with the complaint and supporting affidavits and documents.47 Also in both Rules, respondent is given the right to examine evidence, but such right of examination is limited only to the documents or evidence submitted by complainants which she may not have been furnished and to copy them at her expense.48

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As to the alleged denial of GMA’s right to examine documents, we maintain that no right was violated in view of the limitation of such right as set forth above. We reiterate our explanation in the assailed decision, to wit: While it is true that Senator Pimentel referred to certain election documents which served as bases in the allegations of significant findings specific to the protested municipalities involved, there were no annexes or attachments to the complaint filed. As stated in the Joint Committee’s Order dated November 15, 2011 denying GMA’s Omnibus Motion Ad Cautelam, Senator Pimentel was ordered to furnish petitioners with all the supporting evidence. However, Senator Pimentel manifested that he was adopting all the affidavits attached to the Fact-Finding Team’s Initial Report. Therefore, when GMA was furnished with the documents attached to the Initial Report, she was already granted the right to examine as guaranteed by the Comelec Rules of Procedure and the Rules on Criminal Procedure. Those were the only documents submitted by the complainants to the Committee. If there are other documents that were referred to in Senator Pimentel’s complaint but were not submitted to the Joint Committee, the latter considered those documents unnecessary at that point (without foreclosing the relevance of other evidence that may later be presented during the trial) as the evidence submitted before it were considered adequate to find probable cause against her. x x x491âwphi1 Neither was GMA’s right violated when her motion for extension of time within which to submit her counter-affidavit and countervailing evidence was consequently denied. The Rules use the term "shall" in requiring the respondent to submit counter-affidavit and other countervailing evidence within ten (10) days from receipt of the subpoena. It is settled that the use of the word "shall" which is a word of command, underscores the mandatory character of the rule.50 As in any other rule, though, liberality in the application may be allowed provided that the party is able to present a compelling justification for the non-observance of the mandatory rules. In the 2008 Revised Manual for Prosecutors, investigating prosecutors allow or grant motions or requests for extension of time to submit counter-affidavits when the interest of justice demands that respondent be given reasonable time or sufficient opportunity to engage the services of counsel; examine voluminous records submitted in support of the complaint or undertake research on novel, complicated or technical questions or issues of law and facts of the case.51

In this case, GMA claimed that she could not submit her counteraffidavit within the prescribed period because she needed to examine documents mentioned in Senator Pimentel’s complaint-affidavit. It appeared, however, that said documents were not submitted to the Joint Committee and the only supporting documents available were those attached to the Initial Report of the Fact-Finding Team. Admittedly, GMA was furnished those documents. Thus, at the time she asked for the extension of time within which to file her counter-affidavit, she very well knew that the documents she was asking were not in the record of the case. Obviously, she was not furnished those documents because they were not submitted to the Joint Committee. Logically, she has no right to examine said documents. We cannot, therefore, fault the Joint Committee in consequently denying her motion for extension to file counter-affidavit as there was no compelling justification for the non-observance of the period she was earlier required to follow. And as we held in the assailed decision: There might have been overzealousness on the part of the Joint Committee in terminating the investigation, endorsing the Joint Resolution to the Comelec for approval, and in filing the information in court. However, speed in the conduct of proceedings by a judicial or quasijudicial officer cannot per se be instantly attributed to an injudicious performance of functions. The orderly administration of justice remains the paramount consideration with particular regard to the peculiar circumstances of each case. To be sure, petitioners were given the opportunity to present countervailing evidence. Instead of complying with the Joint Committee’s directive, several motions were filed but were denied by the Joint Committee. Consequently, petitioners’ right to submit counter-affidavit and countervailing

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evidence was forfeited. Taking into account the constitutional right to speedy disposition of cases and following the procedures set forth in the Rules on Criminal Procedure and the Comelec Rules of Procedure, the Joint Committee finally reached its conclusion and referred the case to the Comelec. The latter, in turn, performed its task and filed the information in court. Indeed, petitioners were given the opportunity to be heard. They even actively participated in the proceedings and in fact filed several motions before the Joint Committee. Consistent with the constitutional mandate of speedy disposition of cases, unnecessary delays should be avoided.52 Finally, in our assailed decision, we already took judicial notice that not only did GMA enter a plea of "not guilty," she also filed a Motion for Bail and after due hearing, it was granted. Apparently, she benefited from the RTC Order giving her temporary liberty. In filing the motion before the RTC and actively participating therein, she has chosen to seek judicial remedy before the RTC where the electoral sabotage case is pending instead of the executive remedy of going back to the Joint Committee for the submission of her counter-affidavit and countervailing evidence. Besides, as thoroughly discussed in the assailed decision, the irregularity or even the absence of preliminary investigation does not impair the validity of the information filed against her. WHEREFORE, premises considered, the Motions for Reconsideration are DENIED for lack of merit. SO ORDERED. DIOSDADO Associate Justice

M.

PERALTA

WE CONCUR: MARIA LOURDES P. A. SERENO Chief Justice ANTONIO T. Associate Justice

CARPIO

PRESBITERO J. VELASCO, JR. Associate Justice (Dissenting Opinion) TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION Associate Justice Associate Justice LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO Associate Justice Associate Justice ROBERTO A. ABAD MARTIN S. VILLARAMA, JR. Associate Justice Associate Justice JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA Associate Justice Associate Justice BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE Associate Justice Associate Justice MARVIC MARIO VICTOR F. LEONEN Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court. MARIA Chief Justice

LOURDES

P.

A.

SERENO

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 199082

September 18, 2012

JOSE MIGUEL T. ARROYO, Petitioner, vs. DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE LIMA, in her capacity as Secretary of the Department of Justice; HON. SIXTO BRILLANTES, .JR., in his capacity as Chairperson of the Commission on Elections; and the JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE and FACT-FINDING TEAM, Respondents. x-----------------------x G.R. No. 199085 BENJAMIN S. ABALOS, SR., Petitioner, vs. HON. LEILA DE LIMA, in her capacity as Secretary of Justice; HON. SIXTO S. BRILLANTES, JR., in his capacity as COMELEC Chairperson; RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO V. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM AND AUGUSTO C. LAGMAN, in their capacity as COMELEC COMMISSIONERS; CLARO A. ARELLANO, GEOUGE C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D. VILLARET, in their capacity as CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITEE ON THE 2004 AND 2007 ELECTION FRAUD,Respondents. x-----------------------x G.R. No.199118 GLORIA MACAPAGAL-ARROYO, Petitioner, vs. COMMISSION ON ELECTIONS, represented by Chairperson Sixto S. Brillantes, Jr., DEPARTMENT OF JUSTICE, represented by Secretary Leila M. De Lima, JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE, SENATOR AQUILINO M. PIMENTEL III, and DOJ-COMELEC FACT FINDING TEAM, Respondents. DECISION PERALTA, J.: The Court is vested with the constitutional mandate to resolve justiciable controversies by applying the rule of law with due deference to the right to due process, irrespective of the standing in society of the parties involved. It is an assurance that in this jurisdiction, the wheels of justice turn unimpeded by public opinion or clamor, but only for the ultimate end of giving each and every member of society his just due without distinction.

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Before the Court are three (3) consolidated petitions and supplemental petitions for Certiorari and Prohibition under Rule 65 of the Rules of Court filed by Jose Miguel T. Arroyo (Mike Arroyo) in G.R. No. 199082, Benjamin S. Abalos, Sr. (Abalos) in G.R. No. 199085 and Gloria Macapagal Arroyo (GMA) in G.R. No. 199118 assailing the following: (1) Commission on Elections (Comelec) Resolution No. 9266 "In the Matter of the Commission on Elections and Department of Justice Joint Investigation on the Alleged Election Offenses Committed during the 2004 and 2007 Elections Pursuant to Law" 1 dated August 2, 2011; (2) Joint Order No. 001-2011 (Joint Order) "Creating and Constituting a Joint DOJ-Comelec Preliminary Investigation Committee [Joint Committee] and Fact-Finding Team on the 2004 and 2007

National Elections Electoral Fraud and

Manipulation Cases"

2 dated August 15, 2011; (3) Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged Election Fraud in th e 2004 and 2007 National Elections (Joint Committee Rules of Procedure)3 dated

August 23, 2011; and (4) Initial Report of the Fact-Finding Team dated October 20, 2011.4 The consolidated petitions and supplemental petitions likewise assail the validity of the proceedings undertaken pursuant to the aforesaid issuances.

The Antecedents Acting on the discovery of alleged new evidence and the surfacing of new witnesses indicating the occurrence of massive electoral fraud and manipulation of election results in the 2004 and 2007 National Elections, on August 2, 2011, the Comelec issued Resolution No. 9266 approving the creation of a committee jointly with the Department of Justice (DOJ), which shall conduct preliminary investigation on the alleged election offenses and anomalies committed during the 2004 and 2007 elections. 5

On August 4, 2011, the Secretary of Justice issued Department Order No. 640

6 naming three (3) of its prosecutors to the Joint Committee.

On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011 creating and constituting a Joint Committee and Fact-Finding Team on the 2004 and 2007 National Elections electoral fraud and manipulation cases. The Joint Committee and the Fact-Finding Team are composed of officials from the DOJ and the Comelec. Section 2 of the Joint Order lays down the mandate of the Joint Committee, to wit: Section 2. Mandate. – The Committee shall conduct the necessary preliminary investigation on the basis of the evidence gathered and the charges recommended by the Fact-Finding Team created and referred to in Section 4 hereof. Resolutions finding probable cause for election offenses, defined and penalized under the Omnibus Election Code and other election laws shall be approved by the Comelec in accordance with the Comelec Rules of Procedure. For other offenses, or those not covered by the Omnibus Election Code and other election laws, the corresponding criminal information may be filed directly with the appropriate courts. 7

The Fact-Finding Team,

8 on the other hand, was created for the purpose of gathering real, documentary, and testimonial evidence which can be utilized in the preliminary investigation to be conducted by the Joint Com mittee.

Its specific duties and functions as enumerated in Section 4 of the Joint Order are as follows:

a) Gather and document reports, intelligence information, and investigative leads from official as well as unofficial sources and informants; b) Conduct interviews, record testimonies, take affidavits of witnesses, and collate material and relevant documentary evidence, such as, but not limited to, election documents used in the 2004 and 2007 national elections. For security reasons, or to protect the identities of informants, the Fact-Finding Team may conduct interviews or document testimonies discreetly; c) Assess and evaluate affidavits already executed and other documentary evidence submitted or may be submitted to the Fact-Finding Team and/or Committee; d) Identify the offenders, their offenses and the manner of their commission, individually or in conspiracy, and the provisions of election and general criminal laws violated, establish evidence for individual criminal and administrative liability and prosecution, and prepare the necessary

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documentation, such as complaints and charge sheets for the initiation of preliminary investigation proceedings against said individuals to be conducted by the Committee; e) Regularly submit to the Committee, the Secretary of Justice and the Chairman of the Comelec periodic reports and recommendations, supported by real, testimonial and documentary evidence, which may then serve as the Committee’s basis for immediately commencing appropriate preliminary investigation proceedings, as provided under Section 6 of this Joint Order; and f) Upon the termination of its investigation, make a full and final report to the Committee, the Secretary of Justice, and the Chairman of the Comelec. 9

Pursuant to Section 7

10 of the Joint Order, on August 23, 2011, the Joint Committee promulgated its Rules of Procedure.

The members of the Fact-Finding Team unanimously agreed that the subject of the Initial Report would be the electoral fraud and manipulation of election results allegedly committed during the May 14, 2007 elections. Thus, in its Initial Report 11 dated October 20, 2011, the Fact-Finding Team concluded that manipulation of the results in the May 14, 2007 senatorial elections in the provinces of North

and South Cotabato and Maguindanao were indeed perpetrated.12 The Fact-Finding Team recommended that petitioner Abalos and ten (10) others13 be subjected to preliminary investigation for electoral sabotage for conspiring to manipulate the election results in North and South Cotabato. Twenty-six (26)14persons, including petitioners GMA and Abalos, were likewise recommended for preliminary investigation for electoral sabotage for manipulating the election results in Maguindanao.15 Several persons were also recommended to be charged administratively, while others,16 including petitioner Mike Arroyo, were recommended to be subjected to further investigation.17 The case resulting from the investigation of the Fact-Finding Team was docketed as DOJ-Comelec Case No. 001-2011.

Meanwhile, on October 17, 2011, Senator Aquilino Pimentel III (Senator Pimentel) filed a ComplaintAffidavit 18 for Electoral Sabotage against petitioners and twelve others19 and several John Does and Jane Does. The case was docketed as DOJ-Comelec Case No. 002-2011.

On October 24, 2011, the Joint Committee issued two subpoenas against petitioners in DOJ-Comelec Case Nos. 001-2011 and 002-2011. 20 On November 3, 2011, petitioners, through counsel, appeared before the Joint Committee.21 On that preliminary hearing, the Joint Committee consolidated the two

DOJ-Comelec cases. Respondents therein were likewise ordered to submit their Counter-Affidavits by November 14, 2011.22

Thereafter, petitioners filed before the Court separate Petitions for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction assailing the creation of the Joint Panel. 23The petitions were eventually consolidated.

On November 14, 2011, petitioner Mike Arroyo filed a Motion to Defer Proceedings

24 before the Joint Committee, in view of the

pendency of his petition before the Court. On the same day, petitioner GMA filed before the Joint Committee an Omnibus Motion Ad Cautelam25 to require Senator Pimentel to furnish her with documents referred to in his complaint-affidavit and for the production of election documents as basis for the charge of electoral sabotage. GMA contended that for the crime of electoral sabotage to be established, there is a need to present election documents allegedly tampered which resulted in the increase or decrease in the number of votes of local and national candidates.26 GMA prayed that she be allowed to file her counter-affidavit within ten (10) days from receipt of the requested documents.27 Petitioner Abalos, for his part, filed a Motion to Suspend Proceedings (Ex Abundante Ad Cautelam),28 in view of the pendency of his petition brought before the Court.

In an Order

29 dated November 15, 2011, the Joint Committee denied the aforesaid motions of petitioners. GMA subsequently filed a motion for reconsideration.30

On November 16, 2011, the Joint Committee promulgated a Joint Resolution which was later indorsed to the Comelec. 31On November 18, 2011, after conducting a special session, the Comelec en banc issued a Resolution32 approving and adopting the Joint Resolution subject to modifications. The dispositive portion of the Comelec Resolution

reads:

WHEREFORE, premises considered, the Resolution of the Joint DOJ-COMELEC Preliminary Investigation Committee in DOJ-COMELEC Case No. 001-2011 and DOJ-COMELEC Case No. 0022011, upon the recommendation of the COMELEC’s own representatives in the Committee, is hereby APPROVED and ADOPTED, subject to the following MODIFICATIONS: 1. That information/s for the crime of ELECTORAL SABOTAGE under Section 42 (b) of R.A. 9369, amending Section 27 (b) of R.A. 6646, be filed against GLORIA MACAPAGAL-ARROYO, BENJAMIN ABALOS, SR., LINTANG H. BEDOL, DATU ANDAL AMPATUAN, SR. and PETER REYES; 2. That the charges against MICHAEL C. ABAS, NICODEMO FERRER, REUBEN BASIAO, JAIME PAZ and NORIE K. UNAS be subjected to further investigation; 3. That the charges against JOSE MIGUEL T. ARROYO, BONG SERRANO, ALBERTO AGRA, ANDREI BON TAGUM, GABBY CLAUDIO, ROMY DAYDAY, JEREMY JAVIER, JOHN DOE a.k.a BUTCH, be DISMISSED for insufficiency of evidence to establish probable cause;

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4. That the recommendation that ESTELITA B. ORBASE, ELIZA A. GASMIN, ELSA Z. ATINEN, SALIAO S. AMBA, MAGSAYSAY B. MOHAMAD, SALONGA K. EDZELA, RAGAH D. AYUNAN, SUSAN U. CANANBAN, RUSSAM H. MABANG, ASUNCION CORAZON P. RENIEDO, NENA A. ALID, MA. SUSAN L. ALBANO, ROHAIDA T. KHALID, ARAW M. CAO, JEEHAN S. NUR, ALICE A. LIM, NORIJEAN P. HANGKAL, CHRISTINA ROAN M. DALOPE, and MACEDA L. ABO be administratively charged be subjected to further review by this Commission to determine the appropriate charge/s that may be filed against them; 5. That the findings of lack of probable cause against LILIAN S. SUAN-RADAM and YOGIE G. MARTIRIZAR be REJECTED by reason of the pendency of their respective cases before the Regional Trial Court of Pasay (Branch 114) and this Commission for the same offense under consideration. In the higher interest of justice and by reason of manifest attempts to frustrate the government’s right to prosecute and to obtain speedy disposition of the present case pending before the Commission, the Law Department and/or any COMELEC legal officers as may be authorized by this Commission is hereby ORDERED to IMMEDIATELY PREPARE and FILE the necessary Information/s before the appropriate court/s SO ORDERED.

33 (Emphasis supplied.)

On even date, pursuant to the above Resolution, the Comelec’s Law Department filed with the Regional Trial Court (RTC), Pasay City, an Information against petitioner GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H. Bedol, for violation of Section 42 (b)(3) of Republic Act (R.A.) No. 9369, amending Section 27 (b) of R.A. No. 6646, docketed as Criminal Case No. RPSY-11-04432CR. 34 The case was raffled to Branch 112 and the corresponding Warrant of Arrest was issued which was served on GMA on the same day.35

On November 18, 2011, petitioner GMA filed with the RTC an Urgent Omnibus Motion Ad Cautelam

36

with leave to allow the Joint Committee to resolve the motion for reconsideration filed by GMA, to defer issuance of a warrant of arrest and a Hold Departure Order, and to proceed to judicial determination of probable cause. She, likewise, filed with the Comelec a Motion to Vacate Ad Cautelam37 praying that its Resolution be vacated for being null and void. The RTC nonetheless issued a warrant for her arrest which was duly served. GMA thereafter filed a Motion for Bail which was granted.

Issues In G.R. No. 199082, petitioner Arroyo relies on the following grounds: A. THE CREATION OF THE JOINT COMMITTEE VIA THE JOINT ORDER IS AT WAR WITH THE DUE PROCESS AND EQUAL PROTECTION CLAUSE OF THE CONSTITUTION, HAVING BEEN CREATED WITH THE SOLE END IN VIEW OF INVESTIGATING AND PROSECUTING CERTAIN PERSONS AND INCIDENTS ONLY, SPECIFICALLY THOSE INVOLVING THE 2004 AND 2007 ELECTIONS TO THE EXCLUSION OF OTHERS, IN VIOLATION OF THE DOCTRINE IN BIRAOGO V. TRUTH COMMISSION AND COMPANION CASE. B. NO LAW OR RULE AUTHORIZES THE JOINT COMMITTEE TO CONDUCT PRELIMINARY INVESTIGATION. C. THE CREATION OF THE JOINT COMMITTEE, WHICH FUSES THE COMMISSION ON ELECTIONS - A CONSTITUTIONALLY INDEPENDENT BODY - WITH THE DEPARTMENT OF JUSTICE – A POLITICAL AGENT OF THE EXECUTIVE – DEMOLISHES THE INDEPENDENCE OF THE COMMISSION ON ELECTIONS AS PROVIDED IN ARTICLE IX(A), SECTIONS 1 AND 2 AND IX(C) OF THE CONSTITUTION. D. IN VIEW OF THE NUMEROUS AND PERSISTENT PUBLIC PRONOUNCEMENTS OF THE PRESIDENT, HIS SPOKESPERSONS, THE HEADS OF THE DOJ AND THE COMELEC, AND MEMBERS OF THE JOINT COMMITTEE THAT CASES SHOULD BE FILED AGAINST PETITIONER AND HIS FAMILY AND ALLEGED ASSOCIATES BY THE END OF 2011, THE PROCEEDINGS

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THEREOF SHOULD BE ENJOINED FOR BEING PERSECUTORY, PURSUANT TO ALLADO V. DIOKNO AND RELATED CASES. E. THE CREATION AND CONSTITUTION OF THE JOINT COMMITTEE TRAMPLES UPON PETITIONER’S RIGHT TO A FAIR PROCEEDING BY AN INDEPENDENT AND IMPARTIAL TRIBUNAL. F. THE COMELEC, AND SUBSEQUENTLY, THE RTC OF PASAY CITY, HAVE ASSUMED JURISDICTION OVER THE SUBJECT MATTER SOUGHT TO BE INVESTIGATED BY THE JOINT COMMITTEE, TO THE EXCLUSION OF ANY BODY, INCLUDING THE JOINT COMMITTEE. 38

In G.R. No. 199085, petitioner Abalos raises the following issues: I. DOES JOINT ORDER NO. 001-2011, CREATING THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY INVESTIGATON COMMITTEE VIOLATE PETITIONER’S CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW? II. DID THE CONDUCT AND PROCEEDINGS OF THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY INVESTIGATION COMMITTEE VIOLATE PETITIONER’S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW? III. DID THE DOJ AND COMELEC VIOLATE THE PRINCIPLE OF SEPARATION OF POWERS BY CREATING THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY INVESTIGATION COMMITTEE WHICH ENCROACHED UPON THE POWERS OF THE LEGISLATURE AND THE REGIONAL TRIAL COURT? IV. DOES THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY INVESTIGATION COMMITTEE HAVE THE POWER AND LEGAL AUTHORITY TO CONDUCT A PRELIMINARY INVESTIGATION OF THE SAME ELECTORAL SABOTAGE CASES WHICH THE COMELEC HAD ALREADY TAKEN COGNIZANCE OF? 39

In G.R. No. 199118, petitioner GMA anchors her petition on the following grounds: I. THE EXECUTIVE DEPARTMENT, THROUGH THE DOJ, OSTENSIBLY ACTING "JOINTLY" WITH THE COMELEC, HAS ACTED BEYOND THE LIMITS OF THE CONSTITUTION, IN THAT IT HAS COMPROMISED THE INDEPENDENCE OF THE COMELEC. II. THE COMELEC HAS EFFECTIVELY ABDICATED ITS CONSTITUTIONAL MANDATE "TO INVESTIGATE AND, WHERE APPROPRIATE, PROSECUTE CASES OF VIOLATIONS OF ELECTION LAWS, INCLUDING ACTS OR OMISSIONS CONSTITUTING ELECTION FRAUDS, OFFENSES, AND MALPRACTICES" (ARTICLE IX-C, SECTION 26, 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES) IN FAVOR OF THE EXECUTIVE DEPARTMENT, ACTING THROUGH RESPONDENT JUSTICE SECRETARY DE LIMA. III. DOJ-COMELEC JOINT ORDER NO. 001-2011 AND THE JOINT COMMITTEE RULES HAVE NOT BEEN PUBLISHED PURSUANT TO TAÑADA V. TUVERA, G.R. No. L-63915 (29 DECEMBER 1986).

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AFTER ALL, AS THE HONORABLE COURT LIKEWISE DECLARED IN REPUBLIC V. PILIPINAS SHELL PETROLEUM CORPORATION, G.R. No. 173918 (08 APRIL 2008), (SIC) 40

We deferred the resolution of petitioners’ Motion for the Issuance of a TRO and, instead, required the respondents to comment on the petitions. 41

We likewise scheduled the consolidated cases for oral argument for which the parties were directed to limit their respective discussions to the following issues: I. Whether or not Joint Order No. 001-2011 "Creating and Constituting a Joint DOJ-COMELEC Preliminary Investigation Committee and Fact-Finding Team on the 2004 and 2007 National Elections Electoral Fraud and Manipulation Cases" is constitutional in light of the following: A. The due process clause of the 1987 Constitution B. The equal protection clause of the 1987 Constitution C. The principle of separation of powers D. The independence of the COMELEC as a constitutional body II. Whether or not the COMELEC has jurisdiction under the law to conduct preliminary investigation jointly with the DOJ. A. Whether or not due process was observed by the Joint DOJ-COMELEC Fact-Finding Team and Preliminary Investigation Committee, and the COMELEC in the conduct of the preliminary investigation and approval of the Joint Panel’s Resolution. 42

The Court, thereafter, required the parties to submit their respective Memoranda.

43

The Court’s Ruling Procedural Issues Respondents claim that Mike Arroyo’s petition is moot and that of GMA is moot and academic. They explain that the Mike Arroyo petition presents no actual controversy that necessitates the exercise by the Court of its power of judicial review, considering that he was not among those indicted for electoral sabotage in the 2007 national elections as the Comelec dismissed the case against him for insufficiency of evidence. 44 Anent the 2004 national elections, the Fact-Finding Team is yet to complete its investigation so Mike Arroyo’s apprehensions are merely speculative and anticipatory.45 As to the GMA petition,

respondents aver that any judgment of the Court will have no practical legal effect because an Information has already been f iled against her in Branch 112, RTC of Pasay City.46 With the filing of the Information, the RTC has already acquired jurisdiction over the case, including all issues relating to the constitutionality or legality of her preliminary investigation.47 Respondents also claim that the issues relating to the constitutionality and validity of the conduct of the preliminary inves tigation of GMA are best left to the trial court, considering that it involves questions of fact.48 Respondents add that considering that the RTC has concurrent jurisdiction to determine a constitutional issue, it will be practical for the Court to allow the RTC to determine the constitutional issues in this case.49

We do not agree. Mootness It cannot be gainsaid that for a court to exercise its power of adjudication, there must be an actual case or controversy, that is, one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution. 50 The case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice.51

A case becomes moot and academic when it ceases to present a justiciable controversy so that a declaration on the issue would be of no practical use or value. 52 However, a case should not be dismissed simply because one of the issues raised therein had

become moot and academic by the onset of a supervening event, whether intended or incidental, if there are other causes which need to be resolved after trial.53

Here, the consolidated cases are not rendered moot and academic by the promulgation of the Joint Resolution by the Joint Committee and the approval thereof by the Comelec. It must be recalled that the main issues in the three petitions before us are the constitutionality and legality of the creation of

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the Joint Committee and the Fact-Finding Team as well as the proceedings undertaken pursuant thereto. The assailed Joint Order specifically provides that the Joint Committee was created for purposes of investigating the alleged massive electoral fraud during the 2004 and 2007 national elections. However, in the Fact-Finding Team’s Initial Report, the team specifically agreed that the report would focus on the irregularities during the 2007 elections. Also, in its November 18, 2011 Resolution, the Comelec, while directing the filing of information against petitioners Abalos and GMA, ordered that further investigations be conducted against the other respondents therein. Apparently, the Fact-Finding Team’s and Joint Committee’s respective mandates have not been fulfilled and they are, therefore, bound to continue discharging their duties set forth in the assailed Joint Order. Moreover, petitioners question the validity of the proceedings undertaken by the Fact-Finding Team and the Joint Committee leading to the filing of information, on constitutional grounds. We are not, therefore, barred from deciding on the petitions simply by the occurrence of the supervening events of filing an information and dismissal of the charges. Jurisdiction over conduct of the preliminary investigation

the

validity

of

the

This is not the first time that the Court is confronted with the issue of jurisdiction to conduct preliminary investigation and at the same time with the propriety of the conduct of preliminary investigation. In Cojuangco, Jr. v. Presidential Commission on Good Government (PCGG), 54 the Court resolved two issues, namely: (1) whether or not the PCGG

has the power to conduct a preliminary investigation of the anti-graft and corruption cases filed by the Solicitor General against Eduardo Conjuangco, Jr. and other respondents for the alleg ed misuse of coconut levy funds; and (2) on the assumption that it has jurisdiction to conduct such a preliminary investigation, whether or not its conduct constitutes a violation of petitioner’s right to due process and equal protection of the law.55 The Court decided these issues notwithstanding the fact that Informations had already been filed with the trial court.

In Allado v. Diokno, certiorari assailing the propriety of the issuance of a warrant of arrest, the Court could not ignore the undue haste in the filing of the information and the inordinate interest of the government in filing the same. Thus, this Court took time to determine whether or not there was, indeed, probable cause to warrant the filing of information. This, notwithstanding the fact that information had been filed and a warrant of arrest had been issued. Petitioners therein came directly to this Court and sought relief to rectify the injustice that they suffered. 56 in a petition for

Hierarchy of courts Neither can the petitions be dismissed solely because of violation of the principle of hierarchy of courts. This principle requires that recourse must first be made to the lower-ranked court exercising concurrent jurisdiction with a higher court. 57 The Supreme Court has original jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. While this jurisdiction is shared with the Court of

Appeals and the RTC, a direct invocation of this Court’s jurisdiction is allowed when there are special and important reasons therefor, clearly and especially set out in the petition, as in the present case.58 In the consolidated petitions, petitioners invoke exemption from the observance of the rule on hierarchy of courts in keeping with the Court’s duty to determine whether or not the other branches of government have kept themselves within the limits of the Constitution and the laws, and that they have not abused the discretion given to them.59

It is noteworthy that the consolidated petitions assail the constitutionality of issuances and resolutions of the DOJ and the Comelec. The general rule is that this Court shall exercise only appellate jurisdiction over cases involving the constitutionality of a statute, treaty or regulation. However, such rule is subject to exception, that is, in circumstances where the Court believes that resolving the issue of constitutionality of a law or regulation at the first instance is of paramount importance and immediately affects the social, economic, and moral well-being of the people. 60

This case falls within the exception. An expeditious resolution of the issues raised in the petitions is necessary. Besides, the Court has entertained a direct resort to the Court without the requisite motion for reconsideration filed below or without exhaustion of administrative remedies where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests

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of the government or of the petitioners and when there is an alleged violation of due process, as in the present case. 61 We apply the same relaxation of the Rules in the present case and, thus, entertain direct resort to this Court.

Substantive Bases for the Fact-Finding Team and Joint Committee

Creation

Issues the

of

Section 2, Article IX-C of the 1987 Constitution enumerates the powers and functions of the Comelec. Paragraph (6) thereof vests in the Comelec the power to: (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. This was an important innovation introduced by the 1987 Constitution, because the above-quoted provision was not in the 1935 and 1973 Constitutions. 62

The grant to the Comelec of the power to investigate and prosecute election offenses as an adjunct to the enforcement and administration of all election laws is intended to enable the Comelec to effectively insure to the people the free, orderly, and honest conduct of elections. The failure of the Comelec to exercise this power could result in the frustration of the true will of the people and make a mere idle ceremony of the sacred right and duty of every qualified citizen to vote. 63

The constitutional grant of prosecutorial power in the Comelec was reflected in Section 265 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, to wit: Section 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal [public prosecutor], or with the Ministry Department of Justice for proper investigation and prosecution, if warranted. Under the above provision of law, the power to conduct preliminary investigation is vested exclusively with the Comelec. The latter, however, was given by the same provision of law the authority to avail itself of the assistance of other prosecuting arms of the government. 64 Thus, under Section 2,65 Rule 34 of the Comelec Rules of Procedure, provincial

and city prosecutors and their assistants are given continuing authority as deputies to conduct preliminary investigation of complaints involving election offenses under election laws and to prosecute the same. The complaints may be filed directly with them or may be indorsed to them by the petitioner or its duly authorized representatives.66

Thus, under the Omnibus Election Code, while the exclusive jurisdiction to conduct preliminary investigation had been lodged with the Comelec, the prosecutors had been conducting preliminary investigations pursuant to the continuing delegated authority given by the Comelec. The reason for this delegation of authority has been explained in Commission on Elections v. Español: 67

The deputation of the Provincial and City Prosecutors is necessitated by the need for prompt investigation and dispensation of election cases as an indispensable part of the task of securing fine, orderly, honest, peaceful and credible elections. Enfeebled by lack of funds and the magnitude of its workload, the petitioner does not have a sufficient number of legal officers to conduct such investigation and to prosecute such cases. 68

Moreover, as we acknowledged in People v. Basilla,

69 the prompt and fair investigation and prosecution of election offenses committed before or in the course of nationwide electi ons

would simply not be possible without the assistance of provincial and city fiscals prosecutors and their assistants and staff members, and of the state prosecutors of the DOJ.70

Section 265 of the Omnibus Election Code was amended by Section 43 of R.A. No. 9369,

71 which reads:

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Section 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended to read as follows: SEC. 265. Prosecution. – The Commission shall, through its duly authorized legal officers, have the power, concurrent with the other prosecuting arms of the government, to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. 72

As clearly set forth above, instead of a mere delegated authority, the other prosecuting arms of the government, such as the DOJ, now exercise concurrent jurisdiction with the Comelec to conduct preliminary investigation of all election offenses and to prosecute the same. It is, therefore, not only the power but the duty of both the Comelec and the DOJ to perform any act necessary to ensure the prompt and fair investigation and prosecution of election offenses. Pursuant to the above constitutional and statutory provisions, and as will be explained further below, we find no impediment for the Comelec and the DOJ to create the Joint Committee and Fact-Finding Team for the purpose of conducting a thorough investigation of the alleged massive electoral fraud and the manipulation of election results in the 2004 and 2007 national elections relating in particular to the presidential and senatorial elections. 73

Constitutionality of Joint-Order No. 001-2011 A. Equal Protection Clause Petitioners claim that the creation of the Joint Committee and Fact-Finding Team is in violation of the equal protection clause of the Constitution because its sole purpose is the investigation and prosecution of certain persons and incidents. They argue that there is no substantial distinction between the allegations of massive electoral fraud in 2004 and 2007, on the one hand, and previous and subsequent national elections, on the other hand; and no substantial distinction between petitioners and the other persons or public officials who might have been involved in previous election offenses. They insist that the Joint Panel was created to target only the Arroyo Administration as well as public officials linked to the Arroyo Administration. To bolster their claim, petitioners explain that Joint Order No. 001-2011 is similar to Executive Order No. 1 (creating the Philippine Truth Commission) which this Court had already nullified for being violative of the equal protection clause. Respondents, however, refute the above contentions and argue that the wide array of the possible election offenses and broad spectrum of individuals who may have committed them, if any, immediately negate the assertion that the assailed orders are aimed only at the officials of the Arroyo Administration. We agree with the respondents. The equal protection clause is enshrined in Section 1, Article III of the Constitution which reads: Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. 74

The concept of equal protection has been laid down in Biraogo v. Philippine Truth Commission of 2010: 75

One of the basic principles on which this government was founded is that of the equality of right which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has been embodied in a separate clause, however, to provide for a more specific

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guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause. According to a long line of decisions, equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. It requires public bodies and institutions to treat similarly-situated individuals in a similar manner. The purpose of the equal protection clause is to secure every person within a state's jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statute or by its improper execution through the state's duly-constituted authorities. In other words, the concept of equal justice under the law requires the state to govern impartially, and it may not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective. 76

Unlike the matter addressed by the Court’s ruling in Biraogo v. Philippine Truth Commission of 2010, Joint Order No. 001-2011 cannot be nullified on the ground that it singles out the officials of the Arroyo Administration and, therefore, it infringes the equal protection clause. The Philippine Truth Commission of 2010 was expressly created for the purpose of investigating alleged graft and corruption during the Arroyo Administration since Executive Order No. 1 77 specifically referred to the "previous administration"; while the Joint

Committee was created for the purpose of conducting preliminary investigation of election offenses during the 2004 and 2007 elections. While GMA and Mike Arroyo were among those subjected to preliminary investigation, not all respondents therein were linked to GMA as there were public officers who were investigated upon in connection with their acts in the performance of their official duties. Private individuals were also subjected to the investigation by the Joint Committee.

The equal protection guarantee exists to prevent undue favor or privilege. It is intended to eliminate discrimination and oppression based on inequality. Recognizing the existence of real differences among men, it does not demand absolute equality. It merely requires that all persons under like circumstances and conditions shall be treated alike both as to privileges conferred and liabilities enforced. 78

We once held that the Office of the Ombudsman is granted virtually plenary investigatory powers by the Constitution and by law and thus may, for every particular investigation, whether commenced by complaint or on its own initiative, decide how best to pursue each investigation. Since the Office of the Ombudsman is granted such latitude, its varying treatment of similarly situated investigations cannot by itself be considered a violation of any of the parties’ rights to the equal protection of the laws.

79 This same

doctrine should likewise apply in the present case.

Thus, as the constitutional body granted with the broad power of enforcing and administering all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall, 80 and tasked

to ensure free, orderly, honest, peaceful, and credible elections,81 the Comelec has the authority to determine how best to perform such constitutional mandate. Pursuant to this authority, the Comelec issues various resolutions prior to every local or national elections setting forth the guidelines to be observed in the conduct of the elections. This shows that every election is distinct and r equires different guidelines in order to ensure that the rules are updated to respond to existing circumstances.

Moreover, as has been practiced in the past, complaints for violations of election laws may be filed either with the Comelec or with the DOJ. The Comelec may even initiate, motu proprio, complaints for election offenses. 82

Pursuant to law and the Comelec’s own Rules, investigations may be conducted either by the Comelec itself through its law department or through the prosecutors of the DOJ. These varying procedures and treatment do not, however, mean that respondents are not treated alike. Thus, petitioners’ insistence of infringement of their constitutional right to equal protection of the law is misplaced. B. Due Process Petitioners claim that the Joint Panel does not possess the required cold neutrality of an impartial judge because it is all at once the evidence-gatherer, prosecutor and judge. They explain that since the Fact-Finding Team has found probable cause to subject them to preliminary investigation, it is impossible for the Joint Committee to arrive at an opposite conclusion. Petitioners likewise express

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doubts of any possibility that the Joint Committee will be fair and impartial to them as Secretary De Lima and Chairman Brillantes had repeatedly expressed prejudgment against petitioners through their statements captured by the media. For their part, respondents contend that petitioners failed to present proof that the President of the Philippines, Secretary of Justice, and Chairman of the Comelec actually made the statements allegedly prejudging their case and in the context in which they interpreted them. They likewise contend that assuming that said statements were made, there was no showing that Secretary De Lima had tried to intervene in the investigation to influence its outcome nor was it proven that the Joint Committee itself had prejudged the case. Lastly, they point out that Joint Order No. 001-2011 created two bodies, the Fact-Finding Team and the Joint Committee, with their respective mandates. Hence, they cannot be considered as one. We find for respondents. It is settled that the conduct of preliminary investigation is, like court proceedings, subject to the requirements of both substantive and procedural due process.

83 Preliminary investigation is considered as a judicial proceeding wherein the prosecutor or investigating

officer, by the nature of his functions, acts as a quasi-judicial officer.84 The authority of a prosecutor or investigating officer duly empowered to preside over or to conduct a preliminary investigation is no less than that of a municipal judge or even an RTC Judge.85 Thus, as emphasized by the Court in Ladlad v. Velasco:86

x x x We cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or subversive of, the basic and fundamental objective of serving the interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may public's perception of the impartiality of the prosecutor be enhanced. 87

In this case, as correctly pointed out by respondents, there was no showing that the statements claimed to have prejudged the case against petitioners were made by Secretary De Lima and Chairman Brillantes or were in the prejudicial context in which petitioners claimed the statements were made. A reading of the statements allegedly made by them reveals that they were just responding to hypothetical questions in the event that probable cause would eventually be found by the Joint Committee. More importantly, there was no proof or even an allegation that the Joint Committee itself, tasked to conduct the requisite preliminary investigation against petitioners, made biased statements that would convey to the public that the members were favoring a particular party. Neither did the petitioners show that the President of the Philippines, the Secretary of Justice or the Chairman of the Comelec intervened in the conduct of the preliminary investigation or exerted undue pressure on their subordinates to tailor their decision with their public declarations and adhere to a pre-determined result. 88 Moreover, insofar as the Comelec is concerned, it must be emphasized that the constitutional body is collegial. The act of the head of a collegial body cannot be considered as that of the entire body itself.89 In equating the alleged bias of the above-

named officials with that of the Joint Committee, there would be no arm of the government credible enough to conduct a preliminary investigation.90

It must also be emphasized that Joint Order No. 001-2011 created two bodies, namely: (1) the FactFinding Team tasked to gather real, documentary and testimonial evidence which can be utilized in the preliminary investigation to be conducted by the Joint Committee; and (2) the Joint Committee mandated to conduct preliminary investigation. It is, therefore, inaccurate to say that there is only one body which acted as evidence-gatherer, prosecutor and judge. C. Separation of powers Petitioners claim that the Joint Panel is a new public office as shown by its composition, the creation of its own Rules of Procedure, and the source of funding for its operation. It is their position that the power of the DOJ to investigate the commission of crimes and the Comelec’s constitutional mandate

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to investigate and prosecute violations of election laws do not include the power to create a new public office in the guise of a joint committee. Thus, in creating the Joint Panel, the DOJ and the Comelec encroached upon the power of the Legislature to create public office. Respondents dispute this and contend that the Joint Committee and Fact-Finding Team are not new public offices, but merely collaborations between two existing government agencies sharing concurrent jurisdiction. This is shown by the fact that the members of the Joint Panel are existing officers of the DOJ and the Comelec who exercise duties and functions that are already vested in them. Again, we agree with respondents. As clearly explained above, the Comelec is granted the power to investigate, and where appropriate, prosecute cases of election offenses. This is necessary in ensuring free, orderly, honest, peaceful and credible elections. On the other hand, the DOJ is mandated to administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system. 91 It is specifically empowered to "investigate the commission of crimes, prosecute

offenders and administer the probation and correction system."92 Also, the provincial or city prosecutors and their assistants, as well as the national and regional state prosecutors, are specifically named as the officers authorized to conduct preliminary investigation.93 Recently, the Comelec, through its duly authorized legal offices, is given the power, concurrent with the other prosecuting arms of t he government such as the DOJ, to conduct preliminary investigation of all election offenses.94

Undoubtedly, it is the Constitution, statutes, and the Rules of Court and not the assailed Joint Order which give the DOJ and the Comelec the power to conduct preliminary investigation. No new power is given to them by virtue of the assailed order. As to the members of the Joint Committee and FactFinding Team, they perform such functions that they already perform by virtue of their current positions as prosecutors of the DOJ and legal officers of the Comelec. Thus, in no way can we consider the Joint Committee as a new public office. D. Independence of the Comelec Petitioners claim that in creating the Joint Panel, the Comelec has effectively abdicated its constitutional mandate to investigate and, where appropriate, to prosecute cases of violation of election laws including acts or omissions constituting election frauds, offenses, and malpractices in favor of the Executive Department acting through the DOJ Secretary. Under the set- up, the Comelec personnel is placed under the supervision and control of the DOJ. The chairperson is a DOJ official. Thus, the Comelec has willingly surrendered its independence to the DOJ and has acceded to share its exercise of judgment and discretion with the Executive Branch. We do not agree. Section 1,

95 Article IX-A of the 1987 Constitution expressly describes all the Constitutional Commissions as independent. Although essentially executive in nature, they are not under the control of the President of the Philippines in the discharge of

their respective functions.96 The Constitution envisions a truly independent Comelec committed to ensure free, orderly, honest, peaceful, and credible elec tions and to serve as the guardian of the people’s sacred right of suffrage – the citizenry’s vital weapon in effecting a peaceful change of government and in achieving and promoting political stability.97

Prior to the amendment of Section 265 of the Omnibus Election Code, the Comelec had the exclusive authority to investigate and prosecute election offenses. In the discharge of this exclusive power, the Comelec was given the right to avail and, in fact, availed of the assistance of other prosecuting arms of the government such as the prosecutors of the DOJ. By virtue of this continuing authority, the state prosecutors and the provincial or city prosecutors were authorized to receive the complaint for election offense and delegate the conduct of investigation to any of their assistants. The investigating prosecutor, in turn, would make a recommendation either to dismiss the complaint or to file the information. This recommendation is subject to the approval of the state, provincial or city prosecutor, who himself may file the information with the proper court if he finds sufficient cause to do so, subject, however, to the accused’s right to appeal to the Comelec. 98

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Moreover, during the past national and local elections, the Comelec issued Resolutions

99 requesting the Secretary of Justice

to assign prosecutors as members of Special Task Forces to assist the Comelec in the investigation and prosecution of election offenses. These Special Task Forces were created because of the need for additional lawyers to handle the investigation and prosecution of election offenses.

Clearly, the Comelec recognizes the need to delegate to the prosecutors the power to conduct preliminary investigation. Otherwise, the prompt resolution of alleged election offenses will not be attained. This delegation of power, otherwise known as deputation, has long been recognized and, in fact, been utilized as an effective means of disposing of various election offense cases. Apparently, as mere deputies, the prosecutors played a vital role in the conduct of preliminary investigation, in the resolution of complaints filed before them, and in the filing of the informations with the proper court. As pointed out by the Court in Barangay Association for National Advancement and Transparency (BANAT) Party-List v. Commission on Elections,

100 the grant of exclusive power to investigate and prosecute cases of election offenses to the Comelec was not by virtue of the Constitution

but by the Omnibus Election Code which was eventually amended by Section 43 of R.A. 9369. Thus, the DOJ now conducts preliminary investigation of election offenses concurrently with the Comelec and no longer as mere deputies. If the prosecutors had been allowed to conduct preliminary investigation and file the necessary information by virtue only of a delegated authority, they now have better grounds to perform such function by virtue of the statutory grant of authority. If deputation was justified because of lack of funds and legal officers to ensure prompt and fair investigation and prosecution of election offenses, the same justification should be cited to justify the grant to th e other prosecuting arms of the government of such concurrent jurisdiction.

In view of the foregoing disquisition, we find no impediment for the creation of a Joint Committee. While the composition of the Joint Committee and Fact-Finding Team is dominated by DOJ officials, it does not necessarily follow that the Comelec is inferior. Under the Joint Order, resolutions of the Joint Committee finding probable cause for election offenses shall still be approved by the Comelec in accordance with the Comelec Rules of Procedure. This shows that the Comelec, though it acts jointly with the DOJ, remains in control of the proceedings. In no way can we say that the Comelec has thereby abdicated its independence to the executive department. The text and intent of the constitutional provision granting the Comelec the authority to investigate and prosecute election offenses is to give the Comelec all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful, and credible elections. 101 The Comelec should be allowed

considerable latitude in devising means and methods that will insure the accomplishment of the great objective for which it was created.102 We may not agree fully with its choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this Court should not interfere.103 Thus, Comelec Resolution No. 9266, approving the creation of the Joint Committee and Fact-Finding Team, should be viewed not as an abdication of the constitutional body’s independence but as a means to fulfill its duty of ensuring the prompt investigation and prosecution of election offenses as an adjunct of its mandate of ensuring a free, orderly, honest, peaceful and c redible elections.

Although it belongs to the executive department, as the agency tasked to investigate crimes, prosecute offenders, and administer the correctional system, the DOJ is likewise not barred from acting jointly with the Comelec. It must be emphasized that the DOJ and the Comelec exercise concurrent jurisdiction in conducting preliminary investigation of election offenses. The doctrine of concurrent jurisdiction means equal jurisdiction to deal with the same subject matter. 104 Contrary to the contention of the petitioners, there is no prohibition on

simultaneous exercise of power between two coordinate bodies. What is prohibited is the situation where one files a complaint against a respondent initially with one office (such as the Comelec) for preliminary investigation which was immediately acted upon by said office and the re-filing of substantially the same complaint with another office (such as the DOJ). The subsequent assumption of jurisdiction b y the second office over the cases filed will not be allowed. Indeed, it is a settled rule that the body or agency that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others.105 As cogently held by the Court in Department of Justice v. Hon. Liwag:106

To allow the same complaint to be filed successively before two or more investigative bodies would promote multiplicity of proceedings. It would also cause undue difficulties to the respondent who would have to appear and defend his position before every agency or body where the same complaint was filed. This would lead hapless litigants at a loss as to where to appear and plead their cause or defense. There is yet another undesirable consequence. There is the distinct possibility that the two bodies exercising jurisdiction at the same time would come up with conflicting resolutions regarding the guilt of the respondents. Finally, the second investigation would entail an unnecessary expenditure of public funds, and the use of valuable and limited resources of Government, in a duplication of proceedings already started with the Ombudsman. 107

None of these problems would likely arise in the present case. The Comelec and the DOJ themselves agreed that they would exercise their concurrent jurisdiction jointly. Although the preliminary investigation was conducted on the basis of two complaints – the initial report of the Fact-Finding

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Team and the complaint of Senator Pimentel – both complaints were filed with the Joint Committee. Consequently, the complaints were filed with and the preliminary investigation was conducted by only one investigative body. Thus, we find no reason to disallow the exercise of concurrent jurisdiction jointly by those given such authority. This is especially true in this case given the magnitude of the crimes allegedly committed by petitioners. The joint preliminary investigation also serves to maximize the resources and manpower of both the Comelec and the DOJ for the prompt disposition of the cases. Citing the principle of concurrent jurisdiction, petitioners insist that the investigation conducted by the Comelec involving Radam and Martirizar bars the creation of the Joint Committee for purposes of conducting another preliminary investigation. In short, they claim that the exercise by the Comelec of its jurisdiction to investigate excludes other bodies such as the DOJ and the Joint Committee from taking cognizance of the case. Petitioners add that the investigation should have been conducted also by the Comelec as the 2007 cases of Radam and Martirizar include several John Does and Jane Does. We do not agree. While the Comelec conducted the preliminary investigation against Radam, Martirizar and other unidentified persons, it only pertains to election offenses allegedly committed in North and South Cotabato. On the other hand, the preliminary investigation conducted by the Joint Committee (involving GMA) pertains to election offenses supposedly committed in Maguindanao. More importantly, considering the broad power of the Comelec to choose the means of fulfilling its duty of ensuring the prompt investigation and prosecution of election offenses as discussed earlier, there is nothing wrong if the Comelec chooses to work jointly with the DOJ in the conduct of said investigation. To reiterate, in no way can we consider this as an act abdicating the independence of the Comelec. Publication Requirement In the conduct of preliminary investigation, the DOJ is governed by the Rules of Court, while the Comelec is governed by the 1993 Comelec Rules of Procedure. There is, therefore, no need to promulgate new Rules as may be complementary to the DOJ and Comelec Rules. As earlier discussed, considering that Joint Order No. 001-2011 only enables the Comelec and the DOJ to exercise powers which are already vested in them by the Constitution and other existing laws, it need not be published for it to be valid and effective. A close examination of the Joint Committee’s Rules of Procedure, however, would show that its provisions affect the public. Specifically, the following provisions of the Rules either restrict the rights of or provide remedies to the affected parties, to wit: (1) Section 1 provides that "the Joint Committee will no longer entertain complaints from the public as soon as the Fact-Finding Team submits its final report, except for such complaints involving offenses mentioned in the Fact-Finding Team’s Final Report"; (2) Section 2 states that "the Joint Committee shall not entertain a Motion to Dismiss"; and (3) Section 5 provides that a Motion for Reconsideration may be availed of by the aggrieved parties against the Joint Committee’s Resolution. Consequently, publication of the Rules is necessary. The publication requirement covers not only statutes but administrative regulations and issuances, as clearly outlined in Tañada v. Tuvera: 108 effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. Covered by this rule are presidential decrees and

executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated b y the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and those m erely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties.109

As opposed to Honasan II v. The Panel of Investigating Prosecutors of the Department of Justice,

110 where

the Court held that OMB-DOJ Joint Circular No. 95-001 is only an internal arrangement between the DOJ and the Office of the Ombudsman outlining the authority and responsibilities among prosecutors of both offices in the conduct of preliminary investigation, the assailed Joint Committee’s Rules of Procedure regulate not only the prosecutors of the DOJ and the Comelec but also the conduct and rights of persons, or the public in general. The publication requirement should, therefore, not be ignored.

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Publication is a necessary component of procedural due process to give as wide publicity as possible so that all persons having an interest in the proceedings may be notified thereof.

111 The requirement of publication is intended to satisfy

the basic requirements of due process. It is imperative for it will be the height of injustice to punish or otherwise burden a citizen for the transgressions of a law or rule of which he had no notice whatsoever.112

Nevertheless, even if the Joint Committee’s Rules of Procedure is ineffective for lack of publication, the proceedings undertaken by the Joint Committee are not rendered null and void for that reason, because the preliminary investigation was conducted by the Joint Committee pursuant to the procedures laid down in Rule 112 of the Rules on Criminal Procedure and the 1993 Comelec Rules of Procedure. Validity of Preliminary Investigation In her Supplemental Petition,

the

Conduct

of

113 GMA outlines the incidents that took place after the filing of the instant petition, specifically the issuance by the Joint Committee of the Joint Resolution, the approval with modification of

such resolution by the Comelec and the filing of information and the issuance of a warrant of arrest by the RTC. With these s upervening events, GMA further assails the validity of the proceedings that took place based on the following additional grounds: (1) the undue and unbelievable haste attending the Joint Committee’s conduct of the preliminary investigation, its resolution of the case, and its referral to and approval by the Comelec, taken in conjunction with the statements from the Office of the President, dem onstrate a deliberate and reprehensible pattern of abuse of inalienable rights and a blatant disregard of the envisioned integrity and independence of the Comelec; (2) as it stands, the creation of the Joint Committee was for the singular purpose of railroading the proceedings in the prosecution of the petitioner and in flagrant violation of her right to due process and equal protection of the laws; (3) the proceedings of the Joint Committee cannot be considered impartial and fair, considering that respondents have acted as law enforcers, who conducted the criminal investigation, gathered evidence and thereafter ordered the filing of complaints, and at the same time authorized preliminary investigation based on the complaints they caused to be filed; (4) the Comelec became an instrument of oppression when it hastily approved the resolution of the Joint Committee even if two of its members were in no position to cast their votes as they admitted to not having yet read the voluminous records of the cases; and (5) flagrant and repeated violations of her right to due process at every stage of the proceedings demonstrate a deliberate attempt to single out petitioner through the creation of the Joint Committee.114

In their Supplement to the Consolidated Comment,

115 respondents accuse petitioners of violating the rule against forum shopping. They contend that in filing the Supplemental Pet ition

before the Court, the Urgent Omnibus Motion Ad Cautelam with the RTC, and the Motion to Vacate Ad Cautelam with the Comelec, GMA raises the common issue of whether or not the proc eedings before the Joint Committee and the Comelec are null and void for violating the Constitution. Respondents likewise claim that the issues raised in the supplemental petition are factual which is beyond the power of this Court to decide.

We cannot dismiss the cases before us on the ground of forum shopping. Forum shopping is the act of a party against whom an adverse judgment has been rendered in one forum, of seeking another and possibly favorable opinion in another forum other than by appeal or the special civil action of certiorari. 116There can also be forum shopping when a party institutes two or more suits in different courts, either simultaneously or succ essively, in order to ask the courts to rule on the same

and related causes and/or to grant the same or substantially the same reliefs on the supposition that one or the other court would make a favorable disposition or increase a party’s chances of obtaining a favorable decision or action.117

Indeed, petitioner GMA filed a Supplemental Petition before the Court, an Urgent Omnibus Motion Ad Cautelam before the RTC, and a Motion to Vacate Ad Cautelam before the Comelec, emphasizing the unbelievable haste committed by the Joint Committee and the Comelec in disposing of the cases before them. However, a plain reading of the allegations in GMA’s motion before the RTC would show that GMA raised the issue of undue haste in issuing the Joint Resolution only in support of her prayer for the trial court to hold in abeyance the issuance of the warrant of arrest, considering that her motion for reconsideration of the denial of her motion to be furnished copies of documents was not yet acted upon by the Joint Committee. If at all the constitutional issue of violation of due process was raised, it was merely incidental. More importantly, GMA raised in her motion with the RTC the finding of probable cause as she sought the judicial determination of probable cause which is not an issue in the petitions before us. GMA’s ultimate prayer is actually for the court to defer the issuance of the warrant of arrest. Clearly, the reliefs sought in the RTC are different from the reliefs sought in this case. Thus, there is no forum shopping. With respect to the Motion to Vacate Ad Cautelam filed with the Comelec, while the issues raised therein are substantially similar to the issues in the supplemental petition which, therefore, strictly speaking, warrants outright dismissal on the ground of forum shopping, we cannot do so in this case in light of the due process issues raised by GMA. 118 It is worthy to note that the main issues in the present petitions are the constitutionality of the creation of the Joint Panel and the

validity of the proceedings undertaken pursuant thereto for alleged violation of the constitutional right to due process. In questioning the propriety of the conduct of the preliminary investigation in her Supplemental Petition, GMA only raises her continuing objection to the exercise of jurisdiction of the Joint Committee and the Comelec. There is, therefore, no impediment for the Court to rule on the validity of the conduct of preliminary investigation.

In Uy v. Office of the Ombudsman,

119 the Court explained the nature of preliminary investigation, to wit:

A preliminary investigation is held before an accused is placed on trial to secure the innocent against hasty, malicious, and oppressive prosecution; to protect him from an open and public accusation of a

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crime, as well as from the trouble, expenses, and anxiety of a public trial. It is also intended to protect the state from having to conduct useless and expensive trials. While the right is statutory rather than constitutional, it is a component of due process in administering criminal justice. The right to have a preliminary investigation conducted before being bound for trial and before being exposed to the risk of incarceration and penalty is not a mere formal or technical right; it is a substantive right. To deny the accused's claim to a preliminary investigation is to deprive him of the full measure of his right to due process. 120

A preliminary investigation is the crucial sieve in the criminal justice system which spells for an individual the difference between months if not years of agonizing trial and possibly jail term, on the one hand, and peace of mind and liberty, on the other hand. Thus, we have characterized the right to a preliminary investigation as not a mere formal or technical right but a substantive one, forming part of due process in criminal justice. 121

In a preliminary investigation, the Rules of Court guarantee the petitioners basic due process rights such as the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-affidavits, and other supporting documents in her defense. 122 Admittedly, GMA received the notice requiring her to submit her counter-affidavit. Yet, she did not comply, allegedly because she could not prepare her counter-affidavit. She claimed that she was not furnished by Senator Pimentel pertinent

documents that she needed to adequately prepare her counter-affidavit.

In her Omnibus Motion Ad Cautelam

123 to require Senator Pimentel to furnish her with documents referred to in his complaint-affidavit and for production of election documents as basis for the charge of

electoral sabotage, GMA prayed that the Joint Committee issue an Order directing the Fact-Finding Team and Senator Pimentel to furnish her with copies of the following documents:

a. Complaint-affidavit and other relevant documents of Senator Aquilino Pimentel III filed before the Commission on Elections against Attys. Lilia Suan-Radam and Yogie Martirizar, as well as the Informations filed in the Regional Trial Court of Pasay City, Branch 114 in Criminal Case Nos. R-PSU11-03190-CR to R-PSU-11-03200-CR. b. Records in the petitions filed by complainant Pimentel before the National Board of Canvassers, specifically in NBC Case Nos. 07-162, 07-168, 07-157, 07-159, 07-161 and 07-163. c. Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Maguindanao." d. Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Lanao del Norte." e. Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Shariff Kabunsuan." f. Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Lanao del Sur." g. Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Sulu." h. Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Basilan." i. Documents which served as basis in the allegations of "Significant findings specific to the protested municipalities in the Province of Sultan Kudarat." 124

GMA likewise requested the production of election documents used in the Provinces of South and North Cotabato and Maguindanao. 125

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The Joint Committee, however, denied GMA’s motion which carried with it the denial to extend the filing of her counter-affidavit. Consequently, the cases were submitted for resolution sans GMA’s and the other petitioners’ counter-affidavits. This, according to GMA, violates her right to due process of law. We do not agree. GMA’s insistence of her right to be furnished the above-enumerated documents is based on Section 3 (b), Rule 112 of the Rules on Criminal Procedure, which reads: (b) x x x The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense, Objects as evidence need not be furnished a party but shall be made available for examination, copying or photographing at the expense of the requesting party. 126

Section 6 (a), Rule 34 of the Comelec Rules of Procedure also grants the respondent such right of examination, to wit: Sec. 6. Conduct of preliminary investigation. – (a) If on the basis of the complaint, affidavits and other supporting evidence, the investigating officer finds no ground to continue with the inquiry, he shall recommend the dismissal of the complaint and shall follow the procedure prescribed in Sec. 8 (c) of this Rule. Otherwise, he shall issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents giving said respondent ten (10) days from receipt within which to submit counter-affidavits and other supporting documents. The respondent shall have the right to examine all other evidence submitted by the complainant. 127

Clearly from the above-quoted provisions, the subpoena issued against respondent therein should be accompanied by a copy of the complaint and the supporting affidavits and documents. GMA also has the right to examine documents but such right of examination is limited only to the documents or evidence submitted by the complainants (Senator Pimentel and the Fact-Finding Team) which she may not have been furnished and to copy them at her expense. While it is true that Senator Pimentel referred to certain election documents which served as bases in the allegations of significant findings specific to the protested municipalities involved, there were no annexes or attachments to the complaint filed. 128 As stated in the Joint Committee’s Order dated November 15, 2011 denying GMA’s Omnibus Motion Ad Cautelam, Senator Pimentel was

ordered to furnish petitioners with all the supporting evidence129 However, Senator Pimentel manifested that he was adopting all the affidavits attached to the Fact-Finding Team’s Initial Report.130Therefore, when GMA was furnished with the documents attached to the Initial Report, she was already granted the right to examine as guaranteed by the Comelec Rules of Procedure and the R ules on Criminal Procedure. Those were the only documents submitted by the complainants to the Committee. If there are other documents that were referred to in Senator Pimentel’s complaint but were not submitted to the Joint Committee, the latter considered those documents unnecessary at that point (without foreclosing the relevance of other evidence that may later be presented during the trial)131 as the evidence submitted before it were considered adequate to find probable cause against her.132 Anyway, the failure of the complainant to submit documents supporting his allegations in the complaint may only weaken his claims and eventually works for the benefit of the respondent as these merely are allegations unsupported by independent evidence.

We must, however, emphasize at this point that during the preliminary investigation, the complainants are not obliged to prove their cause beyond reasonable doubt. It would be unfair to expect them to present the entire evidence needed to secure the conviction of the accused prior to the filing of information. 133 A preliminary investigation is not the occasion for the full and exhaustive display of the parties’ respective evidence but the presentation only of such evidence as may engender a well-grounded belief that an offense has been

committed and that the accused is probably guilty thereof and should be held for trial.134 Precisely there is a trial to allow the reception of evidence for the prosecution in support of the charge.135

With the denial of GMA’s motion to be furnished with and examine the documents referred to in Senator Pimentel’s complaint, GMA’s motion to extend the filing of her counter-affidavit and countervailing evidence was consequently denied. Indeed, considering the nature of the crime for which GMA was subjected to preliminary investigation and the documents attached to the complaint,

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it is incumbent upon the Joint Committee to afford her ample time to examine the documents submitted to the Joint Committee in order that she would be able to prepare her counter-affidavit. She cannot, however, insist to examine documents not in the possession and custody of the Joint Committee nor submitted by the complainants. Otherwise, it might cause undue and unnecessary delay in the disposition of the cases. This undue delay might result in the violation of the right to a speedy disposition of cases as enshrined in Section 16, Article III of the Constitution which states that "all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies." The constitutional right to speedy disposition of cases is not limited to the accused in criminal proceedings but extends to all parties in all cases, including civil and administrative cases, and in all proceedings, including judicial and quasi-judicial hearings. 136 Any party to a case has the right to demand on all officials tasked

with the administration of justice to expedite its disposition.137 Society has a particular interest in bringing swift prosecutions, and the society’s representatives are the ones who should protect that interest.138

Even assuming for the sake of argument that the denial of GMA’s motion to be furnished with and examine the documents referred to in Senator Pimentel’s complaint carried with it the denial to extend the filing of her counter-affidavit and other countervailing evidence rendering the preliminary investigation irregular, such irregularity would not divest the RTC of jurisdiction over the case and would not nullify the warrant of arrest issued in connection therewith, considering that Informations had already been filed against petitioners, except Mike Arroyo. This would only compel us to suspend the proceedings in the RTC and remand the case to the Joint Committee so that GMA could submit her counter-affidavit and other countervailing evidence if she still opts to. However, to do so would hold back the progress of the case which is anathema to the accused’s right to speedy disposition of cases. It is well settled that the absence or irregularity of preliminary investigation does not affect the court’s jurisdiction over the case. Nor does it impair the validity of the criminal information or render it defective. Dismissal is not the remedy.

139Neither is it a ground to quash the information or nullify the order of arrest issued against the accused or justify the release of the accused from detention.140

The proper course of action that should be taken is to hold in abeyance the proceedings upon such information and to remand the case for the conduct of preliminary investigation.141

In the landmark cases of Cojuangco, Jr. v. Presidential Commission on Good Government (PCGG)

142

and Allado v. Diokno,143 we dismissed the criminal cases and set aside the informations and warrants of arrest. In Cojuangco, we dismissed the criminal case because the information was filed by the PCGG which we declared to be unauthorized to conduct the preliminary investigation and, consequently, file the information as it did not possess the cold neutrality of an impartial judge. In Allado, we set aside the warrant of arrest issued against petitioners therein and enjoined the trial court from proceeding further for lack of probable cause. For one, there was serious doubt on the reported death of the victim in that case since the corpus delicti had not been established nor had his remains been recovered;and based on the evidence submitted, there was nothing to incriminate petitioners therein. In this case, we cannot reach the same conclusion because the Information filed before the RTC of Pasay City was filed by the Comelec en banc which had the authority to file the information for electoral sabotage and because the presence or absence of probable cause is not an issue herein. As can be gleaned from their assignment of errors/issues, petitioners did not question the finding of probable cause in any of their supplemental petitions. It was only in GMA’s memorandum where she belatedly included a discussion on the "insufficiency" of the evidence supporting the finding of probable cause for the filing of the Information for electoral sabotage against her.144 A closer look at her arguments, however, would show that they were included only to highlight the necessity of examining the election documents GMA requested to see before she could file her counter-affidavit. At any rate, since GMA failed to submit her counter-affidavit and other countervailing evidence within the period required by the Joint Committee, we cannot excuse her from non-compliance.

There might have been overzealousness on the part of the Joint Committee in terminating the investigation, endorsing the Joint Resolution to the Comelec for approval, and in filing the information in court. However, speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be instantly attributed to an injudicious performance of functions. 145 The orderly administration of justice remains the paramount consideration with

particular regard to the peculiar circumstances of each case.146 To be sure, petitioners were given the opportunity to present countervailing evidence. Instead of complying with the Joint Committee’s directive, several motions were filed but were denied by the Joint Committee. Consequently, petitioners’ right to submit counter-affidavit and countervailing evidence was forfeited. Taking into account the constitutional right to speedy disposition of cases and following the procedures set forth in the Rules on Criminal Procedure and the Comelec Rules of Procedure, the Joint Committee finally reached its conclusion and referred the case to the Comelec. The latter, in turn, performed its task and filed the information in court. Indeed, petitioners were given the opportunity to be heard. They even actively participated in the proceedings and in fact filed several motions before the Joint Committee. Consistent with the constitutional mandate of speedy disposition of cases, unnecessary delays should be avoided.

Finally, we take judicial notice that on February 23, 2012, GMA was already arraigned and entered a plea of "not guilty" to the charge against her and thereafter filed a Motion for Bail which has been granted. Considering that the constitutionality of the creation of the Joint Panel is sustained, the actions of the Joint Committee and Fact-Finding Team are valid and effective. As the information was filed by the Commission authorized to do so, its validity is sustained. Thus, we consider said entry of plea and the Petition for Bail waiver on the part of GMA of her right to submit counter-affidavit and countervailing evidence before the Joint Committee, and recognition of the validity of the information against her. Her act indicates that she opts to avail of judicial remedies instead of the executive remedy of going back to the Joint Committee for the submission of the counter-affidavit and countervailing evidence. Besides, as discussed earlier, the absence or irregularity of preliminary investigation does not affect

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the court’s jurisdiction over the case nor does it impair the validity of the criminal information or render it defective. It must be stressed, however, that this supervening event does not render the cases before the Court moot and academic as the main issues raised by petitioners are the constitutionality of the creation of the Joint Committee and the Fact-Finding Team and the validity of the proceedings undertaken pursuant to their respective mandates. The Court notes that the Joint Committee and the Comelec have not disposed of the cases of the other respondents subjects of the preliminary investigation as some of them were subjected to further investigation. In order to remove the cloud of doubt that pervades that petitioners are being singled out, it is to the best interest of all the parties concerned that the Joint Committee and the Comelec terminate the proceedings as to the other respondents therein and not make a piecemeal disposition of the cases. A peripheral issue which nonetheless deserves our attention is the question about the credibility of the Comelec brought about by the alleged professional relationship between Comelec Chairman Brillantes on one hand and the complainant Senator Pimentel and Fernando Poe, Jr. (FPJ), GMA’s rival in the 2004 elections, on the other hand; and by the other Commissioners’ 147 reasons for their partial inhibition. To be sure, Chairman Brillantes’ relationship with

FPJ and Senator Pimentel is not one of the grounds for the mandatory disqualification of a Commissioner. At its most expansive, it may be considered a ground for voluntary inhibition which is indeed discretionary as the same was primarily a matter of conscience and sound discretion on the part of the Commissioner judge based on his or her rational and logical assessment of the case. 148 Bare allegations of bias and prejudice are not enough in the absence of clear and convincing evidence to overcome the presumption that a judge will undertake his noble role to dispense justice according to law and evidence without fear or favor. 149 It being discretionary and since Commissioner Brillantes was in the best position to determine whether or not there was a need to inhibit from the case, his decision to participate in the proceedings, in view of higher interest of justice, equity and public interest, should be respected. While a party has the right to seek the inhibition or disqualification of a judge (or prosecutor or Commissioner) who does not appear to be wholly free, disinterested, impartial, and independent in handling the case, this right must be weighed with his duty to decide cases without fear of repression.150

Indeed, in Javier v. Comelec,

151 the Court set aside the Comelec’s decision against Javier when it was disclosed that one of the Commissioners who had decided the case was a law partner of Javier’s opponent and

who had refused to excuse himself from hearing the case. Javier, however, is not applicable in this case. First, the cited case involves the Comelec’s exercise of its adjudicatory function as it was called upon to resolve the propriety of the proclamation of the winner in the May 1984 elections for Batasang Pambansa of Antique. Clearly, the grounds for inhibition/disqualification were applicable. Second, the case arose at the time where the purity of suffrage has been defiled and the popular will scorned through the confabulation of those in authority.152 In other words, the controversy arose at the time when the public confidence in the Comelec was practically nil because of its transparent bias in favor of the administration. 153Lastly, in determining the propriety of the decision rendered by the Comelec, the Court took into consideration not only the relationship (being former partners in the law firm) between private respondents therein, Arturo F. Pacificador, and then Comelec Commissioner Jaime Opinion (Commissioner Opinion) but also the general attitude of the Comelec toward the party in power at that time. Moreover, the questioned Comelec decision was rendered only b y a division of the Comelec. The Court thus concluded in Javier that Commissioner Opinion’s refusal to inhibit himself divested the Comelec’s Second Division of the necessary vote for the questioned decision and rendered the proceedings null and void. 154

On the contrary, the present case involves only the conduct of preliminary investigation and the questioned resolution is an act of the Comelec En Banc where all the Commissioners participated and more than a majority (even if Chairman Brillantes is excluded) voted in favor of the assailed Comelec resolution. Unlike in 1986, public confidence in the Comelec remains. The Commissioners have already taken their positions in light of the claim of "bias and partiality" and the causes of their partial inhibition. Their positions should be respected confident that in doing so, they had the end in view of ensuring that the credibility of the Commission is not seriously affected. To recapitulate, we find and so hold that petitioners failed to establish any constitutional or legal impediment to the creation of the Joint DOJ-Comelec Preliminary Investigation Committee and FactFinding Team. First, while GMA and Mike Arroyo were among those subjected to preliminary investigation, not all respondents therein were linked to GMA; thus, Joint Order No. 001-2011 does not violate the equal protection clause of the Constitution. Second, the due process clause is likewise not infringed upon by the alleged prejudgment of the case as petitioners failed to prove that the Joint Panel itself showed such bias and partiality against them. Neither was it shown that the Justice Secretary herself actually intervened in the conduct of the preliminary investigation. More importantly, considering that the Comelec is a collegial body, the perceived prejudgment of Chairman Brillantes as head of the Comelec cannot be considered an act of the body itself.

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Third, the assailed Joint Order did not create new offices because the Joint Committee and FactFinding Team perform functions that they already perform by virtue of the Constitution, the statutes, and the Rules of Court.1âwphi1 Fourth, in acting jointly with the DOJ, the Comelec cannot be considered to have abdicated its independence in favor of the executive branch of government. Resolution No. 9266 was validly issued by the Comelec as a means to fulfill its duty of ensuring the prompt investigation and prosecution of election offenses as an adjunct of its mandate of ensuring a free, orderly, honest, peaceful, and credible elections. The role of the DOJ in the conduct of preliminary investigation of election offenses has long been recognized by the Comelec because of its lack of funds and legal officers to conduct investigations and to prosecute such cases on its own. This is especially true after R.A. No. 9369 vested in the Comelec and the DOJ the concurrent jurisdiction to conduct preliminary investigation of all election offenses. While we uphold the validity of Comelec Resolution No. 9266 and Joint Order No. 001-2011, we declare the Joint Committee’s Rules of Procedure infirm for failure to comply with the publication requirement. Consequently, Rule 112 of the Rules on Criminal Procedure and the 1993 Comelec Rules of Procedure govern. Fifth, petitioners were given the opportunity to be heard. They were furnished a copy of the complaint, the affidavits, and other supporting documents submitted to the Joint Committee and they were required to submit their counter-affidavit and countervailing evidence. As to petitioners Mike Arroyo and Abalos, the pendency of the cases before the Court does not automatically suspend the proceedings before the Joint Committee nor excuse them from their failure to file the required counteraffidavits. With the foregoing disquisitions, we find no reason to nullify the proceedings undertaken by the Joint Committee and the Comelec in the electoral sabotage cases against petitioners. WHEREFORE, premises considered, the petitions and supplemental petitions are DISMISSED. Comelec Resolution No. 9266 dated August 2, 2011, Joint Order No. 001-2011 dated August 15, 2011, and the Fact-Finding Team’s Initial Report dated October 20, 2011, are declared VALID. However, the Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack of publication. In view of the constitutionality of the Joint Panel and the proceedings having been conducted in accordance with Rule 112 of the Rules on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure, the conduct of the preliminary investigation is hereby declared VALID. Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where the criminal cases for electoral sabotage against petitioners GMA and Abalos are pending, proceed with dispatch. SO ORDERED. DIOSDADO Associate Justice

M.

PERALTA

WE CONCUR:

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 207264

June 25, 2013

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

Petitioner,

RESOLUTION PEREZ, J.: Before the Court is a Petition for Certiorari with Prayer for Temporary Restraining Order and/or Preliminary Injunction and/or Status Quo Ante Order dated 7 June 2013 filed by petitioner Regina Ongsiako Reyes, assailing the Resolutions dated 27 March 2013 and 14 May 2013 issued by public respondent Commission on Elections (COMELEC) in SPA No. 13-053. The assailed Resolutions ordered the cancellation of the Certificate of Candidacy of petitioner for the position of Representative of the lone district of Marinduque. On 31 October 2012, respondent Joseph Socorro Tan, a registered voter and resident of the Municipality of Torrijos, Marinduque, filed before the COMELEC an Amended Petition to Deny Due Course or to Cancel the Certificate of Candidacy (COC) of petitioner on the ground that it contained material misrepresentations, specifically: (1) that she is single when she is married to Congressman Herminaldo I. Mandanas of Batangas;1 (2) that she is a resident of Brgy. Lupac, Boac, Marinduque when she is a resident of Bauan, Batangas which is the residence of her husband, and at the same time, when she is also a resident of 135 J.P. Rizal, Brgy. Milagrosa, Quezon City as admitted in the Directory of Congressional Spouses of the House of Representatives;2 (3) that her date of birth is 3 July 1964 when other documents show that her birthdate is either 8 July 1959 or 3 July 1960;3 (4) that she is not a permanent resident of another country when she is a permanent resident or an immigrant4 of the United States of America;5and (5) that she is a Filipino citizen when she is, in fact, an American citizen.6

In her Answer, petitioner countered that, while she is publicly known to be the wife of Congressman Herminaldo I. Mandanas (Congressman Mandanas), there is no valid and binding marriage between them. According to petitioner, although her marriage with Congressman Mandanas was solemnized in a religious rite, it did not comply with certain formal requirements prescribed by the Family Code, rendering it void ab initio.7 Consequently, petitioner argues that as she is not duty-bound to live with Congressman Mandanas, then his residence cannot be attributed to her.8 As to her date of birth, the Certificate of Live Birth issued by the National Statistics Office shows that it was on 3 July 1964.9 Lastly, petitioner notes that the allegation that she is a permanent resident and/or a citizen of the United States of America is not supported by evidence.10

During the course of the proceedings, on 8 February 2013, respondent filed a "Manifestation with Motion to Admit Newly Discovered Evidence and Amended List of Exhibits"11 consisting of, among others: (1) a copy of an article published on the internet on 8 January 2013 entitled "Seeking and Finding the Truth about Regina O. Reyes" with an Affidavit of Identification and Authenticity of Document executed by its author Eliseo J. Obligacion, which provides a database record of the Bureau of Immigration indicating that petitioner is an American citizen and a holder

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of a U.S. passport; (2) a Certification of Travel Records of petitioner, issued by Simeon Sanchez, Acting Chief, Verification and Certification Unit of the Bureau of Immigration which indicates that petitioner used a U.S. Passport in her various travels abroad.

On 27 March 2013, the COMELEC First Division issued a Resolution12 cancelling petitioner’s COC, to wit: WHEREFORE, in view of the foregoing, the instant Petition is GRANTED. Accordingly, the Certificate of Candidacy of respondent REGINA ONGSIAKO REYES is hereby CANCELLED. The COMELEC First Division found that, contrary to the declarations that she made in her COC, petitioner is not a citizen of the Philippines because of her failure to comply with the requirements of Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003, namely: (1) to take an oath of allegiance to the Republic of the Philippines; and (2) to make a personal and sworn renunciation of her American citizenship before any public officer authorized to administer an oath. In addition, the COMELEC First Division ruled that she did not have the oneyear residency requirement under Section 6, Article VI of the 1987 Constitution.13 Thus, she is ineligible to run for the position of Representative for the lone district of Marinduque.

Not agreeing with the Resolution of the COMELEC First Division, petitioner filed a Motion for Reconsideration14 on 8 April 2013 claiming that she is a natural-born Filipino citizen and that she has not lost such status by simply obtaining and using an American passport. Additionally, petitioner surmised that the COMELEC First Division relied on the fact of her marriage to an American citizen in concluding that she is a naturalized American citizen. Petitioner averred, however, that such marriage only resulted into dual citizenship, thus there is no need for her to fulfill the twin requirements under R.A. No. 9225. Still, petitioner attached an Affidavit of Renunciation of Foreign Citizenship sworn to before a Notary Public on 24 September 2012. As to her alleged lack of the one-year residency requirement prescribed by the Constitution, she averred that, as she never became a naturalized citizen, she never lost her domicile of origin, which is Boac, Marinduque.

On 14 May 2013, the COMELEC En Banc, promulgated a Resolution15 denying petitioner’s Motion for Reconsideration for lack of merit.

Four days thereafter or on 18 May 2013, petitioner was proclaimed winner of the 13 May 2013 Elections. On 5 June 2013, the COMELEC En Banc issued a Certificate of Finality16 declaring the 14 May 2013 Resolution of the COMELEC En Banc final and executory, considering that more than twenty-one (21) days have elapsed from the date of promulgation with no order issued by this Court restraining its execution.17

On same day, petitioner took her oath of office18 before Feliciano R. Belmonte Jr., Speaker of the House of Representatives. Petitioner has yet to assume office, the term of which officially starts at noon of 30 June 2013. In the present Petition for Certiorari with Prayer for Temporary Restraining Order and/or Preliminary Injunction and/or Status Quo Ante Order, petitioner raises the following issues:19 31) Whether or not Respondent Comelec is without jurisdiction over Petitioner who is a duly proclaimed winner and who has already taken her oath of office for the position of Member of the House of Representatives for the lone congressional district of Marinduque. 32) Whether or not Respondent Comelec committed grave abuse of discretion amounting to lack or excess of jurisdiction when it took cognizance of Respondent Tan’s alleged "newly-discovered evidence" without the same having been testified on and offered and admitted in evidence which became the basis for its Resolution of the case without giving the petitioner the opportunity to question and present controverting evidence, in violation of Petitioner’s right to due process of law. 33) Whether or not Respondent Comelec committed grave abuse of discretion amounting to lack or excess of jurisdiction when it declared that Petitioner is not a Filipino citizen and did not meet the residency requirement for the position of Member of the House of Representatives.

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34) Whether or not Respondent Commission on Elections committed grave abuse of discretion amounting to lack or excess of jurisdiction when, by enforcing the provisions of Republic Act No. 9225, it imposed additional qualifications to the qualifications of a Member of the House of Representatives as enumerated in Section 6 of Article VI of the 1987 Constitution of the Philippines. The petition must fail. At the outset, it is observed that the issue of jurisdiction of respondent COMELEC vis-a-vis that of House of Representatives Electoral Tribunal (HRET) appears to be a non-issue. Petitioner is taking an inconsistent, if not confusing, stance for while she seeks remedy before this Court, she is asserting that it is the HRET which has jurisdiction over her. Thus, she posits that the issue on her eligibility and qualifications to be a Member of the House of Representatives is best discussed in another tribunal of competent jurisdiction. It appears then that petitioner’s recourse to this Court was made only in an attempt to enjoin the COMELEC from implementing its final and executory judgment in SPA No. 13053. Nevertheless, we pay due regard to the petition, and consider each of the issues raised by petitioner. The need to do so, and at once, was highlighted during the discussion En Banc on 25 June 2013 where and when it was emphasized that the term of office of the Members of the House of Representatives begins on the thirtieth day of June next following their election. According to petitioner, the COMELEC was ousted of its jurisdiction when she was duly proclaimed 20 because pursuant to Section 17, Article VI of the 1987 Constitution, the HRET has the exclusive jurisdiction to be the "sole judge of all contests relating to the election, returns and qualifications" of the Members of the House of Representatives.

Contrary to petitioner’s claim, however, the COMELEC retains jurisdiction for the following reasons: First, the HRET does not acquire jurisdiction over the issue of petitioner’s qualifications, as well as over the assailed COMELEC Resolutions, unless a petition is duly filed with said tribunal. Petitioner has not averred that she has filed such action. Second, the jurisdiction of the HRET begins only after the candidate is considered a Member of the House of Representatives, as stated in Section 17, Article VI of the 1987 Constitution: Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. x x x As held in Marcos v. COMELEC,21 the HRET does not have jurisdiction over a candidate who is not a member of the House of Representatives, to wit: As to the House of Representatives Electoral Tribunal’s supposed assumption of jurisdiction over the issue of petitioner’s qualifications after the May 8, 1995 elections, suffice it to say that HRET’s jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of members of Congress begins only after a candidate has become a member of the House of Representatives. Petitioner not being a member of the House of Representatives, it is obvious that the HRET at this point has no jurisdiction over the question. (Emphasis supplied.) The next inquiry, then, is when is a candidate considered a Member of the House of Representatives? In Vinzons-Chato v. COMELEC,22 citing Aggabao v. COMELEC23 and Guerrero v. COMELEC,24 the Court ruled that: The Court has invariably held that once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELEC’s jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET’s own jurisdiction begins. (Emphasis supplied.)

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This pronouncement was reiterated in the case of Limkaichong v. COMELEC,25 wherein the Court, referring to the jurisdiction of the COMELEC vis-a-vis the HRET, held that:

The Court has invariably held that once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELEC's jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET's own jurisdiction begins. (Emphasis supplied.) This was again affirmed in Gonzalez v. COMELEC,26 to wit: After proclamation, taking of oath and assumption of office by Gonzalez, jurisdiction over the matter of his qualifications, as well as questions regarding the conduct of election and contested returns – were transferred to the HRET as the constitutional body created to pass upon the same. (Emphasis supplied.) From the foregoing, it is then clear that to be considered a Member of the House of Representatives, there must be a concurrence of the following requisites: (1) a valid proclamation, (2) a proper oath, and (3) assumption of office. Indeed, in some cases, this Court has made the pronouncement that once a proclamation has been made, COMELEC’s jurisdiction is already lost and, thus, its jurisdiction over contests relating to elections, returns, and qualifications ends, and the HRET’s own jurisdiction begins. However, it must be noted that in these cases, the doctrinal pronouncement was made in the context of a proclaimed candidate who had not only taken an oath of office, but who had also assumed office. For instance, in the case of Dimaporo v. COMELEC,27 the Court upheld the jurisdiction of the HRET against that of the COMELEC only after the candidate had been proclaimed, taken his oath of office before the Speaker of the House, and assumed the duties of a Congressman on 26 September 2007, or after the start of his term on 30 June 2007, to wit:

On October 8, 2007, private respondent Belmonte filed his comment in which he brought to Our attention that on September 26, 2007, even before the issuance of the status quo ante order of the Court, he had already been proclaimed by the PBOC as the duly elected Member of the House of Representatives of the First Congressional District of Lanao del Norte. On that very same day, he had taken his oath before Speaker of the House Jose de Venecia, Jr. and assumed his duties accordingly. In light of this development, jurisdiction over this case has already been transferred to the House of Representatives Electoral Tribunal (HRET). (Emphasis supplied.) Apparently, the earlier cases were decided after the questioned candidate had already assumed office, and hence, was already considered a Member of the House of Representatives, unlike in the present case. Here, the petitioner cannot be considered a Member of the House of Representatives because, primarily, she has not yet assumed office. To repeat what has earlier been said, the term of office of a Member of the House of Representatives begins only "at noon on the thirtieth day of June next following their election."28 Thus, until such time, the COMELEC retains jurisdiction. In her attempt to comply with the second requirement, petitioner attached a purported Oath Of Office taken before Hon. Feliciano Belmonte Jr. on 5 June 2013. However, this is not the oath of office which confers membership to the House of Representatives. Section 6, Rule II (Membership) of the Rules of the House of Representatives provides: Section 6. Oath or Affirmation of Members. – Members shall take their oath or affirmation either collectively or individually before the Speaker in open session.

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Consequently, before there is a valid or official taking of the oath it must be made (1) before the Speaker of the House of Representatives, and (2) in open session. Here, although she made the oath before Speaker Belmonte, there is no indication that it was made during plenary or in open session and, thus, it remains unclear whether the required oath of office was indeed complied with. More importantly, we cannot disregard a fact basic in this controversy – that before the proclamation of petitioner on 18 May 2013, the COMELEC En Banc had already finally disposed of the issue of petitioner’s lack of Filipino citizenship and residency via its Resolution dated 14 May 2013. After 14 May 2013, there was, before the COMELEC, no longer any pending case on petitioner’s qualifications to run for the position of Member of the House of Representative. We will inexcusably disregard this fact if we accept the argument of the petitioner that the COMELEC was ousted of jurisdiction when she was proclaimed, which was four days after the COMELEC En Banc decision. The Board of Canvasser which proclaimed petitioner cannot by such act be allowed to render nugatory a decision of the COMELEC En Banc which affirmed a decision of the COMELEC First Division. Indeed, the assailed Resolution of the COMELEC First Division which was promulgated on 27 March 2013, and the assailed Resolution of the COMELEC En Banc which was promulgated on 14 May 2013, became final and executory on 19 May 2013 based on Section 3, Rule 37 of the COMELEC Rules of Procedure which provides: Section 3. Decisions Final after five days. Decisions in pre-proclamation cases and petitions to deny due course to or cancel certificates of candidacy, to declare nuisance candidate or to disqualify a candidate, and to postpone or suspend elections shall become final and executory after the lapse of five (5) days from their promulgation unless restrained by the Supreme Court. To prevent the assailed Resolution dated 14 May 2013 from becoming final and executory, petitioner should have availed herself of Section 1, Rule 3729 of the COMELEC Rules of Procedure or Rule 6430 of the Rules of Court by filing a petition before this Court within the 5-day period, but she failed to do so. She would file the present last hour petition on 10 June 2013. Hence, on 5 June 2013, respondent COMELEC rightly issued a Certificate of Finality.

As to the issue of whether petitioner failed to prove her Filipino citizenship, as well as her one-year residency in Marinduque, suffice it to say that the COMELEC committed no grave abuse of discretion in finding her ineligible for the position of Member of the House of Representatives. Petitioner alleges that the COMELEC gravely abused its discretion when it took cognizance of "newlydiscovered evidence" without the same having been testified on and offered and admitted in evidence. She assails the admission of the blog article of Eli Obligacion as hearsay and the photocopy of the Certification from the Bureau of Immigration. She likewise contends that there was a violation of her right to due process of law because she was not given the opportunity to question and present controverting evidence. Her contentions are incorrect. It must be emphasized that the COMELEC is not bound to strictly adhere to the technical rules of procedure in the presentation of evidence. Under Section 2 of Rule I, the COMELEC Rules of Procedure "shall be liberally construed in order x xx to achieve just, expeditious and inexpensive determination and disposition of every action and proceeding brought before the Commission." In view of the fact that the proceedings in a petition to deny due course or to cancel certificate of candidacy are summary in nature, then the "newly discovered evidence" was properly admitted by respondent COMELEC. Furthermore, there was no denial of due process in the case at bar as petitioner was given every opportunity to argue her case before the COMELEC. From 10 October 2012 when Tan’s petition was

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filed up to 27 March 2013 when the First Division rendered its resolution, petitioner had a period of five (5) months to adduce evidence. Unfortunately, she did not avail herself of the opportunity given her. Also, in administrative proceedings, procedural due process only requires that the party be given the opportunity or right to be heard. As held in the case of Sahali v. COMELEC:31 The petitioners should be reminded that due process does not necessarily mean or require a hearing, but simply an opportunity or right to be heard. One may be heard, not solely by verbal presentation but also, and perhaps many times more creditably and predictable than oral argument, through pleadings. In administrative proceedings moreover, technical rules of procedure and evidence are not strictly applied; administrative process cannot be fully equated with due process in its strict judicial sense. Indeed, deprivation of due process cannot be successfully invoked where a party was given the chance to be heard on his motion for reconsideration. (Emphasis supplied) As to the ruling that petitioner is ineligible to run for office on the ground of citizenship, the COMELEC First Division, discoursed as follows: "x x x for respondent to reacquire her Filipino citizenship and become eligible for public office, the law requires that she must have accomplished the following acts: (1) take the oath of allegiance to the Republic of the Philippines before the Consul-General of the Philippine Consulate in the USA; and (2) make a personal and sworn renunciation of her American citizenship before any public officer authorized to administer an oath. In the case at bar, there is no showing that respondent complied with the aforesaid requirements. Early on in the proceeding, respondent hammered on petitioner’s lack of proof regarding her American citizenship, contending that it is petitioner’s burden to present a case. She, however, specifically denied that she has become either a permanent resident or naturalized citizen of the USA. Due to petitioner’s submission of newly-discovered evidence thru a Manifestation dated February 7, 2013, however, establishing the fact that respondent is a holder of an American passport which she continues to use until June 30, 2012, petitioner was able to substantiate his allegations. The burden now shifts to respondent to present substantial evidence to prove otherwise. This, the respondent utterly failed to do, leading to the conclusion inevitable that respondent falsely misrepresented in her COC that she is a natural-born Filipino citizen. Unless and until she can establish that she had availed of the privileges of RA 9225 by becoming a dual Filipino-American citizen, and thereafter, made a valid sworn renunciation of her American citizenship, she remains to be an American citizen and is, therefore, ineligible to run for and hold any elective public office in the Philippines."32 (Emphasis supplied.) Let us look into the events that led to this petition: In moving for the cancellation of petitioner’s COC, respondent submitted records of the Bureau of Immigration showing that petitioner is a holder of a US passport, and that her status is that of a "balikbayan." At this point, the burden of proof shifted to petitioner, imposing upon her the duty to prove that she is a natural-born Filipino citizen and has not lost the same, or that she has reacquired such status in accordance with the provisions of R.A. No. 9225. Aside from the bare allegation that she is a natural-born citizen, however, petitioner submitted no proof to support such contention. Neither did she submit any proof as to the inapplicability of R.A. No. 9225 to her. Notably, in her Motion for Reconsideration before the COMELEC En Banc, petitioner admitted that she is a holder of a US passport, but she averred that she is only a dual Filipino-American citizen, thus the requirements of R.A. No. 9225 do not apply to her.33 Still, attached to the said motion is an Affidavit of Renunciation of Foreign Citizenship dated 24 September 2012.34 Petitioner explains that she attached said Affidavit "if only to show her desire and zeal to serve the people and to comply with rules, even as a superfluity."35 We cannot, however, subscribe to petitioner’s explanation. If petitioner executed said Affidavit "if only to comply with the rules," then it is an admission that

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R.A. No. 9225 applies to her. Petitioner cannot claim that she executed it to address the observations by the COMELEC as the assailed Resolutions were promulgated only in 2013, while the Affidavit was executed in September 2012.

Moreover, in the present petition, petitioner added a footnote to her oath of office as Provincial Administrator, to this effect: "This does not mean that Petitioner did not, prior to her taking her oath of office as Provincial Administrator, take her oath of allegiance for purposes of reacquisition of naturalborn Filipino status, which she reserves to present in the proper proceeding. The reference to the taking of oath of office is in order to make reference to what is already part of the records and evidence in the present case and to avoid injecting into the records evidence on matters of fact that was not previously passed upon by Respondent COMELEC."36 This statement raises a lot of questions – Did petitioner execute an oath of allegiance for re-acquisition of natural-born Filipino status? If she did, why did she not present it at the earliest opportunity before the COMELEC? And is this an admission that she has indeed lost her natural-born Filipino status?

To cover-up her apparent lack of an oath of allegiance as required by R.A. No. 9225, petitioner contends that, since she took her oath of allegiance in connection with her appointment as Provincial Administrator of Marinduque, she is deemed to have reacquired her status as a natural-born Filipino citizen. This contention is misplaced. For one, this issue is being presented for the first time before this Court, as it was never raised before the COMELEC. For another, said oath of allegiance cannot be considered compliance with Sec. 3 of R.A. No. 9225 as certain requirements have to be met as prescribed by Memorandum Circular No. AFF-04-01, otherwise known as the Rules Governing Philippine Citizenship under R.A. No. 9225 and Memorandum Circular No. AFF-05-002 (Revised Rules) and Administrative Order No. 91, Series of 2004 issued by the Bureau of Immigration. Thus, petitioner’s oath of office as Provincial Administrator cannot be considered as the oath of allegiance in compliance with R.A. No. 9225. These circumstances, taken together, show that a doubt was clearly cast on petitioner’s citizenship. Petitioner, however, failed to clear such doubt. As to the issue of residency, proceeding from the finding that petitioner has lost her natural-born status, we quote with approval the ruling of the COMELEC First Division that petitioner cannot be considered a resident of Marinduque: "Thus, a Filipino citizen who becomes naturalized elsewhere effectively abandons his domicile of origin. Upon re-acquisition of Filipino citizenship pursuant to RA 9225, he must still show that he chose to establish his domicile in the Philippines through positive acts, and the period of his residency shall be counted from the time he made it his domicile of choice. In this case, there is no showing whatsoever that petitioner had already re-acquired her Filipino citizenship pursuant to RA 9225 so as to conclude that she has regained her domicile in the Philippines. There being no proof that petitioner had renounced her American citizenship, it follows that she has not abandoned her domicile of choice in the USA. The only proof presented by petitioner to show that she has met the one-year residency requirement of the law and never abandoned her domicile of origin in Boac, Marinduque is her claim that she served as Provincial Administrator of the province from January 18, 2011 to July 13, 2011. But such fact alone is not sufficient to prove her one-year residency. For, petitioner has never regained her domicile in Marinduque as she remains to be an American citizen. No amount of her stay in the said locality can substitute the fact that she has not abandoned her domicile of choice in the USA."37 (Emphasis supplied.) All in all, considering that the petition for denial and cancellation of the COC is summary in nature, the COMELEC is given much discretion in the evaluation and admission of evidence pursuant to its

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principal objective of determining of whether or not the COC should be cancelled. We held in Mastura v. COMELEC:38 The rule that factual findings of administrative bodies will not be disturbed by courts of justice except when there is absolutely no evidence or no substantial evidence in support of such findings should be applied with greater force when it concerns the COMELEC, as the framers of the Constitution intended to place the COMELEC — created and explicitly made independent by the Constitution itself — on a level higher than statutory administrative organs. The COMELEC has broad powers to ascertain the true results of the election by means available to it. For the attainment of that end, it is not strictly bound by the rules of evidence.1âwphi1 Time and again, We emphasize that the "grave abuse of discretion" which warrants this Court’s exercise of certiorari jurisdiction has a welldefined meaning. Guidance is found in Beluso v. Commission on Elections39 where the Court held: x x x A petition for certiorari will prosper only if grave abuse of discretion is alleged and proved to exist. "Grave abuse of discretion," under Rule 65, has a specific meaning. It is the arbitrary or despotic exercise of power due to passion, prejudice or personal hostility; or the whimsical, arbitrary, or capricious exercise of power that amounts to an evasion or refusal to perform a positive duty enjoined by law or to act at all in contemplation of law. For an act to be struck down as having been done with grave abuse of discretion, the abuse of discretion must be patent and gross. (Emphasis supplied.) Here, this Court finds that petitioner failed to adequately and substantially show that grave abuse of discretion exists. Lastly, anent the proposition of petitioner that the act of the COMELEC in enforcing the provisions of R.A. No. 9225, insofar as it adds to the qualifications of Members of the House of Representatives other than those enumerated in the Constitution, is unconstitutional, We find the same meritless. The COMELEC did not impose additional qualifications on candidates for the House of Representatives who have acquired foreign citizenship. It merely applied the qualifications prescribed by Section 6, Article VI of the 1987 Constitution that the candidate must be a natural-born citizen of the Philippines and must have one-year residency prior to the date of elections. Such being the case, the COMELEC did not err when it inquired into the compliance by petitioner of Sections 3 and 5 of R.A. No. 9225 to determine if she reacquired her status as a natural-born Filipino citizen. It simply applied the constitutional provision and nothing more. IN VIEW OF THE FOREGOING, the instant petition is DISMISSED, finding no grave abuse of discretion on the part of the Commission on Elections. The 14 May 2013 Resolution of the COMELEC En Bane affirming the 27 March 2013 Resolution of the COMELEC First Division is upheld. SO ORDERED. JOSE Associate Justice

PORTUGAL

PEREZ

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 207264

June 25, 2013

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

Petitioner,

RESOLUTION PEREZ, J.: Before the Court is a Petition for Certiorari with Prayer for Temporary Restraining Order and/or Preliminary Injunction and/or Status Quo Ante Order dated 7 June 2013 filed by petitioner Regina Ongsiako Reyes, assailing the Resolutions dated 27 March 2013 and 14 May 2013 issued by public respondent Commission on Elections (COMELEC) in SPA No. 13-053. The assailed Resolutions ordered the cancellation of the Certificate of Candidacy of petitioner for the position of Representative of the lone district of Marinduque. On 31 October 2012, respondent Joseph Socorro Tan, a registered voter and resident of the Municipality of Torrijos, Marinduque, filed before the COMELEC an Amended Petition to Deny Due Course or to Cancel the Certificate of Candidacy (COC) of petitioner on the ground that it contained material misrepresentations, specifically: (1) that she is single when she is married to Congressman Herminaldo I. Mandanas of Batangas;1 (2) that she is a resident of Brgy. Lupac, Boac, Marinduque when she is a resident of Bauan, Batangas which is the residence of her husband, and at the same time, when she is also a resident of 135 J.P. Rizal, Brgy. Milagrosa, Quezon City as admitted in the Directory of Congressional Spouses of the House of Representatives;2 (3) that her date of birth is 3 July 1964 when other documents show that her birthdate is either 8 July 1959 or 3 July 1960;3 (4) that she is not a permanent resident of another country when she is a permanent resident or an immigrant4 of the United States of America;5and (5) that she is a Filipino citizen when she is, in fact, an American citizen.6

In her Answer, petitioner countered that, while she is publicly known to be the wife of Congressman Herminaldo I. Mandanas (Congressman Mandanas), there is no valid and binding marriage between them. According to petitioner, although her marriage with Congressman Mandanas was solemnized in a religious rite, it did not comply with certain formal requirements prescribed by the Family Code, rendering it void ab initio.7 Consequently, petitioner argues that as she is not duty-bound to live with Congressman Mandanas, then his residence cannot be attributed to her.8 As to her date of birth, the Certificate of Live Birth issued by the National Statistics Office shows that it was on 3 July 1964.9 Lastly, petitioner notes that the allegation that she is a permanent resident and/or a citizen of the United States of America is not supported by evidence.10

During the course of the proceedings, on 8 February 2013, respondent filed a "Manifestation with Motion to Admit Newly Discovered Evidence and Amended List of Exhibits"11 consisting of, among others: (1) a copy of an article published on the internet on 8 January 2013 entitled "Seeking and Finding the Truth about Regina O. Reyes" with an Affidavit of Identification and Authenticity of Document executed by its author Eliseo J. Obligacion, which provides a database record of the Bureau of Immigration indicating that petitioner is an American citizen and a holder of a U.S. passport; (2) a Certification of Travel Records of petitioner, issued by Simeon Sanchez, Acting Chief, Verification and Certification Unit of the Bureau of Immigration which indicates that petitioner used a U.S. Passport in her various travels abroad.

On 27 March 2013, the COMELEC First Division issued a Resolution12 cancelling petitioner’s COC, to wit: WHEREFORE, in view of the foregoing, the instant Petition is GRANTED. Accordingly, the Certificate of Candidacy of respondent REGINA ONGSIAKO REYES is hereby CANCELLED.

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The COMELEC First Division found that, contrary to the declarations that she made in her COC, petitioner is not a citizen of the Philippines because of her failure to comply with the requirements of Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003, namely: (1) to take an oath of allegiance to the Republic of the Philippines; and (2) to make a personal and sworn renunciation of her American citizenship before any public officer authorized to administer an oath. In addition, the COMELEC First Division ruled that she did not have the oneyear residency requirement under Section 6, Article VI of the 1987 Constitution.13 Thus, she is ineligible to run for the position of Representative for the lone district of Marinduque.

Not agreeing with the Resolution of the COMELEC First Division, petitioner filed a Motion for Reconsideration14 on 8 April 2013 claiming that she is a natural-born Filipino citizen and that she has not lost such status by simply obtaining and using an American passport. Additionally, petitioner surmised that the COMELEC First Division relied on the fact of her marriage to an American citizen in concluding that she is a naturalized American citizen. Petitioner averred, however, that such marriage only resulted into dual citizenship, thus there is no need for her to fulfill the twin requirements under R.A. No. 9225. Still, petitioner attached an Affidavit of Renunciation of Foreign Citizenship sworn to before a Notary Public on 24 September 2012. As to her alleged lack of the one-year residency requirement prescribed by the Constitution, she averred that, as she never became a naturalized citizen, she never lost her domicile of origin, which is Boac, Marinduque.

On 14 May 2013, the COMELEC En Banc, promulgated a Resolution15 denying petitioner’s Motion for Reconsideration for lack of merit.

Four days thereafter or on 18 May 2013, petitioner was proclaimed winner of the 13 May 2013 Elections. On 5 June 2013, the COMELEC En Banc issued a Certificate of Finality16 declaring the 14 May 2013 Resolution of the COMELEC En Banc final and executory, considering that more than twenty-one (21) days have elapsed from the date of promulgation with no order issued by this Court restraining its execution.17

On same day, petitioner took her oath of office18 before Feliciano R. Belmonte Jr., Speaker of the House of Representatives. Petitioner has yet to assume office, the term of which officially starts at noon of 30 June 2013. In the present Petition for Certiorari with Prayer for Temporary Restraining Order and/or Preliminary Injunction and/or Status Quo Ante Order, petitioner raises the following issues:19 31) Whether or not Respondent Comelec is without jurisdiction over Petitioner who is a duly proclaimed winner and who has already taken her oath of office for the position of Member of the House of Representatives for the lone congressional district of Marinduque. 32) Whether or not Respondent Comelec committed grave abuse of discretion amounting to lack or excess of jurisdiction when it took cognizance of Respondent Tan’s alleged "newly-discovered evidence" without the same having been testified on and offered and admitted in evidence which became the basis for its Resolution of the case without giving the petitioner the opportunity to question and present controverting evidence, in violation of Petitioner’s right to due process of law. 33) Whether or not Respondent Comelec committed grave abuse of discretion amounting to lack or excess of jurisdiction when it declared that Petitioner is not a Filipino citizen and did not meet the residency requirement for the position of Member of the House of Representatives. 34) Whether or not Respondent Commission on Elections committed grave abuse of discretion amounting to lack or excess of jurisdiction when, by enforcing the provisions of Republic Act No. 9225, it imposed additional qualifications to the qualifications of a Member of the House of Representatives as enumerated in Section 6 of Article VI of the 1987 Constitution of the Philippines. The petition must fail.

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At the outset, it is observed that the issue of jurisdiction of respondent COMELEC vis-a-vis that of House of Representatives Electoral Tribunal (HRET) appears to be a non-issue. Petitioner is taking an inconsistent, if not confusing, stance for while she seeks remedy before this Court, she is asserting that it is the HRET which has jurisdiction over her. Thus, she posits that the issue on her eligibility and qualifications to be a Member of the House of Representatives is best discussed in another tribunal of competent jurisdiction. It appears then that petitioner’s recourse to this Court was made only in an attempt to enjoin the COMELEC from implementing its final and executory judgment in SPA No. 13053. Nevertheless, we pay due regard to the petition, and consider each of the issues raised by petitioner. The need to do so, and at once, was highlighted during the discussion En Banc on 25 June 2013 where and when it was emphasized that the term of office of the Members of the House of Representatives begins on the thirtieth day of June next following their election. According to petitioner, the COMELEC was ousted of its jurisdiction when she was duly proclaimed20 because pursuant to Section 17, Article VI of the 1987 Constitution, the HRET has the exclusive jurisdiction to be the "sole judge of all contests relating to the election, returns and qualifications" of the Members of the House of Representatives.

Contrary to petitioner’s claim, however, the COMELEC retains jurisdiction for the following reasons: First, the HRET does not acquire jurisdiction over the issue of petitioner’s qualifications, as well as over the assailed COMELEC Resolutions, unless a petition is duly filed with said tribunal. Petitioner has not averred that she has filed such action. Second, the jurisdiction of the HRET begins only after the candidate is considered a Member of the House of Representatives, as stated in Section 17, Article VI of the 1987 Constitution: Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. x x x As held in Marcos v. COMELEC,21 the HRET does not have jurisdiction over a candidate who is not a member of the House of Representatives, to wit: As to the House of Representatives Electoral Tribunal’s supposed assumption of jurisdiction over the issue of petitioner’s qualifications after the May 8, 1995 elections, suffice it to say that HRET’s jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of members of Congress begins only after a candidate has become a member of the House of Representatives. Petitioner not being a member of the House of Representatives, it is obvious that the HRET at this point has no jurisdiction over the question. (Emphasis supplied.) The next inquiry, then, is when is a candidate considered a Member of the House of Representatives? In Vinzons-Chato v. COMELEC,22 citing Aggabao v. COMELEC23 and Guerrero v. COMELEC,24 the Court ruled that: The Court has invariably held that once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELEC’s jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET’s own jurisdiction begins. (Emphasis supplied.) This pronouncement was reiterated in the case of Limkaichong v. COMELEC,25 wherein the Court, referring to the jurisdiction of the COMELEC vis-a-vis the HRET, held that:

The Court has invariably held that once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELEC's jurisdiction over

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election contests relating to his election, returns, and qualifications ends, and the HRET's own jurisdiction begins. (Emphasis supplied.) This was again affirmed in Gonzalez v. COMELEC,26 to wit: After proclamation, taking of oath and assumption of office by Gonzalez, jurisdiction over the matter of his qualifications, as well as questions regarding the conduct of election and contested returns – were transferred to the HRET as the constitutional body created to pass upon the same. (Emphasis supplied.) From the foregoing, it is then clear that to be considered a Member of the House of Representatives, there must be a concurrence of the following requisites: (1) a valid proclamation, (2) a proper oath, and (3) assumption of office. Indeed, in some cases, this Court has made the pronouncement that once a proclamation has been made, COMELEC’s jurisdiction is already lost and, thus, its jurisdiction over contests relating to elections, returns, and qualifications ends, and the HRET’s own jurisdiction begins. However, it must be noted that in these cases, the doctrinal pronouncement was made in the context of a proclaimed candidate who had not only taken an oath of office, but who had also assumed office. For instance, in the case of Dimaporo v. COMELEC,27 the Court upheld the jurisdiction of the HRET against that of the COMELEC only after the candidate had been proclaimed, taken his oath of office before the Speaker of the House, and assumed the duties of a Congressman on 26 September 2007, or after the start of his term on 30 June 2007, to wit:

On October 8, 2007, private respondent Belmonte filed his comment in which he brought to Our attention that on September 26, 2007, even before the issuance of the status quo ante order of the Court, he had already been proclaimed by the PBOC as the duly elected Member of the House of Representatives of the First Congressional District of Lanao del Norte. On that very same day, he had taken his oath before Speaker of the House Jose de Venecia, Jr. and assumed his duties accordingly. In light of this development, jurisdiction over this case has already been transferred to the House of Representatives Electoral Tribunal (HRET). (Emphasis supplied.) Apparently, the earlier cases were decided after the questioned candidate had already assumed office, and hence, was already considered a Member of the House of Representatives, unlike in the present case. Here, the petitioner cannot be considered a Member of the House of Representatives because, primarily, she has not yet assumed office. To repeat what has earlier been said, the term of office of a Member of the House of Representatives begins only "at noon on the thirtieth day of June next following their election."28 Thus, until such time, the COMELEC retains jurisdiction. In her attempt to comply with the second requirement, petitioner attached a purported Oath Of Office taken before Hon. Feliciano Belmonte Jr. on 5 June 2013. However, this is not the oath of office which confers membership to the House of Representatives. Section 6, Rule II (Membership) of the Rules of the House of Representatives provides: Section 6. Oath or Affirmation of Members. – Members shall take their oath or affirmation either collectively or individually before the Speaker in open session. Consequently, before there is a valid or official taking of the oath it must be made (1) before the Speaker of the House of Representatives, and (2) in open session. Here, although she made the oath before Speaker Belmonte, there is no indication that it was made during plenary or in open session and, thus, it remains unclear whether the required oath of office was indeed complied with.

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More importantly, we cannot disregard a fact basic in this controversy – that before the proclamation of petitioner on 18 May 2013, the COMELEC En Banc had already finally disposed of the issue of petitioner’s lack of Filipino citizenship and residency via its Resolution dated 14 May 2013. After 14 May 2013, there was, before the COMELEC, no longer any pending case on petitioner’s qualifications to run for the position of Member of the House of Representative. We will inexcusably disregard this fact if we accept the argument of the petitioner that the COMELEC was ousted of jurisdiction when she was proclaimed, which was four days after the COMELEC En Banc decision. The Board of Canvasser which proclaimed petitioner cannot by such act be allowed to render nugatory a decision of the COMELEC En Banc which affirmed a decision of the COMELEC First Division. Indeed, the assailed Resolution of the COMELEC First Division which was promulgated on 27 March 2013, and the assailed Resolution of the COMELEC En Banc which was promulgated on 14 May 2013, became final and executory on 19 May 2013 based on Section 3, Rule 37 of the COMELEC Rules of Procedure which provides: Section 3. Decisions Final after five days. Decisions in pre-proclamation cases and petitions to deny due course to or cancel certificates of candidacy, to declare nuisance candidate or to disqualify a candidate, and to postpone or suspend elections shall become final and executory after the lapse of five (5) days from their promulgation unless restrained by the Supreme Court. To prevent the assailed Resolution dated 14 May 2013 from becoming final and executory, petitioner should have availed herself of Section 1, Rule 3729 of the COMELEC Rules of Procedure or Rule 6430 of the Rules of Court by filing a petition before this Court within the 5-day period, but she failed to do so. She would file the present last hour petition on 10 June 2013. Hence, on 5 June 2013, respondent COMELEC rightly issued a Certificate of Finality.

As to the issue of whether petitioner failed to prove her Filipino citizenship, as well as her one-year residency in Marinduque, suffice it to say that the COMELEC committed no grave abuse of discretion in finding her ineligible for the position of Member of the House of Representatives. Petitioner alleges that the COMELEC gravely abused its discretion when it took cognizance of "newlydiscovered evidence" without the same having been testified on and offered and admitted in evidence. She assails the admission of the blog article of Eli Obligacion as hearsay and the photocopy of the Certification from the Bureau of Immigration. She likewise contends that there was a violation of her right to due process of law because she was not given the opportunity to question and present controverting evidence. Her contentions are incorrect. It must be emphasized that the COMELEC is not bound to strictly adhere to the technical rules of procedure in the presentation of evidence. Under Section 2 of Rule I, the COMELEC Rules of Procedure "shall be liberally construed in order x xx to achieve just, expeditious and inexpensive determination and disposition of every action and proceeding brought before the Commission." In view of the fact that the proceedings in a petition to deny due course or to cancel certificate of candidacy are summary in nature, then the "newly discovered evidence" was properly admitted by respondent COMELEC. Furthermore, there was no denial of due process in the case at bar as petitioner was given every opportunity to argue her case before the COMELEC. From 10 October 2012 when Tan’s petition was filed up to 27 March 2013 when the First Division rendered its resolution, petitioner had a period of five (5) months to adduce evidence. Unfortunately, she did not avail herself of the opportunity given her.

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Also, in administrative proceedings, procedural due process only requires that the party be given the opportunity or right to be heard. As held in the case of Sahali v. COMELEC:31 The petitioners should be reminded that due process does not necessarily mean or require a hearing, but simply an opportunity or right to be heard. One may be heard, not solely by verbal presentation but also, and perhaps many times more creditably and predictable than oral argument, through pleadings. In administrative proceedings moreover, technical rules of procedure and evidence are not strictly applied; administrative process cannot be fully equated with due process in its strict judicial sense. Indeed, deprivation of due process cannot be successfully invoked where a party was given the chance to be heard on his motion for reconsideration. (Emphasis supplied) As to the ruling that petitioner is ineligible to run for office on the ground of citizenship, the COMELEC First Division, discoursed as follows: "x x x for respondent to reacquire her Filipino citizenship and become eligible for public office, the law requires that she must have accomplished the following acts: (1) take the oath of allegiance to the Republic of the Philippines before the Consul-General of the Philippine Consulate in the USA; and (2) make a personal and sworn renunciation of her American citizenship before any public officer authorized to administer an oath. In the case at bar, there is no showing that respondent complied with the aforesaid requirements. Early on in the proceeding, respondent hammered on petitioner’s lack of proof regarding her American citizenship, contending that it is petitioner’s burden to present a case. She, however, specifically denied that she has become either a permanent resident or naturalized citizen of the USA. Due to petitioner’s submission of newly-discovered evidence thru a Manifestation dated February 7, 2013, however, establishing the fact that respondent is a holder of an American passport which she continues to use until June 30, 2012, petitioner was able to substantiate his allegations. The burden now shifts to respondent to present substantial evidence to prove otherwise. This, the respondent utterly failed to do, leading to the conclusion inevitable that respondent falsely misrepresented in her COC that she is a natural-born Filipino citizen. Unless and until she can establish that she had availed of the privileges of RA 9225 by becoming a dual Filipino-American citizen, and thereafter, made a valid sworn renunciation of her American citizenship, she remains to be an American citizen and is, therefore, ineligible to run for and hold any elective public office in the Philippines."32 (Emphasis supplied.) Let us look into the events that led to this petition: In moving for the cancellation of petitioner’s COC, respondent submitted records of the Bureau of Immigration showing that petitioner is a holder of a US passport, and that her status is that of a "balikbayan." At this point, the burden of proof shifted to petitioner, imposing upon her the duty to prove that she is a natural-born Filipino citizen and has not lost the same, or that she has reacquired such status in accordance with the provisions of R.A. No. 9225. Aside from the bare allegation that she is a natural-born citizen, however, petitioner submitted no proof to support such contention. Neither did she submit any proof as to the inapplicability of R.A. No. 9225 to her. Notably, in her Motion for Reconsideration before the COMELEC En Banc, petitioner admitted that she is a holder of a US passport, but she averred that she is only a dual Filipino-American citizen, thus the requirements of R.A. No. 9225 do not apply to her.33 Still, attached to the said motion is an Affidavit of Renunciation of Foreign Citizenship dated 24 September 2012.34 Petitioner explains that she attached said Affidavit "if only to show her desire and zeal to serve the people and to comply with rules, even as a superfluity."35 We cannot, however, subscribe to petitioner’s explanation. If petitioner executed said Affidavit "if only to comply with the rules," then it is an admission that R.A. No. 9225 applies to her. Petitioner cannot claim that she executed it to address the observations by the COMELEC as the assailed Resolutions were promulgated only in 2013, while the Affidavit was executed in September 2012.

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Moreover, in the present petition, petitioner added a footnote to her oath of office as Provincial Administrator, to this effect: "This does not mean that Petitioner did not, prior to her taking her oath of office as Provincial Administrator, take her oath of allegiance for purposes of reacquisition of naturalborn Filipino status, which she reserves to present in the proper proceeding. The reference to the taking of oath of office is in order to make reference to what is already part of the records and evidence in the present case and to avoid injecting into the records evidence on matters of fact that was not previously passed upon by Respondent COMELEC."36 This statement raises a lot of questions – Did petitioner execute an oath of allegiance for re-acquisition of natural-born Filipino status? If she did, why did she not present it at the earliest opportunity before the COMELEC? And is this an admission that she has indeed lost her natural-born Filipino status?

To cover-up her apparent lack of an oath of allegiance as required by R.A. No. 9225, petitioner contends that, since she took her oath of allegiance in connection with her appointment as Provincial Administrator of Marinduque, she is deemed to have reacquired her status as a natural-born Filipino citizen. This contention is misplaced. For one, this issue is being presented for the first time before this Court, as it was never raised before the COMELEC. For another, said oath of allegiance cannot be considered compliance with Sec. 3 of R.A. No. 9225 as certain requirements have to be met as prescribed by Memorandum Circular No. AFF-04-01, otherwise known as the Rules Governing Philippine Citizenship under R.A. No. 9225 and Memorandum Circular No. AFF-05-002 (Revised Rules) and Administrative Order No. 91, Series of 2004 issued by the Bureau of Immigration. Thus, petitioner’s oath of office as Provincial Administrator cannot be considered as the oath of allegiance in compliance with R.A. No. 9225. These circumstances, taken together, show that a doubt was clearly cast on petitioner’s citizenship. Petitioner, however, failed to clear such doubt. As to the issue of residency, proceeding from the finding that petitioner has lost her natural-born status, we quote with approval the ruling of the COMELEC First Division that petitioner cannot be considered a resident of Marinduque: "Thus, a Filipino citizen who becomes naturalized elsewhere effectively abandons his domicile of origin. Upon re-acquisition of Filipino citizenship pursuant to RA 9225, he must still show that he chose to establish his domicile in the Philippines through positive acts, and the period of his residency shall be counted from the time he made it his domicile of choice. In this case, there is no showing whatsoever that petitioner had already re-acquired her Filipino citizenship pursuant to RA 9225 so as to conclude that she has regained her domicile in the Philippines. There being no proof that petitioner had renounced her American citizenship, it follows that she has not abandoned her domicile of choice in the USA. The only proof presented by petitioner to show that she has met the one-year residency requirement of the law and never abandoned her domicile of origin in Boac, Marinduque is her claim that she served as Provincial Administrator of the province from January 18, 2011 to July 13, 2011. But such fact alone is not sufficient to prove her one-year residency. For, petitioner has never regained her domicile in Marinduque as she remains to be an American citizen. No amount of her stay in the said locality can substitute the fact that she has not abandoned her domicile of choice in the USA."37 (Emphasis supplied.) All in all, considering that the petition for denial and cancellation of the COC is summary in nature, the COMELEC is given much discretion in the evaluation and admission of evidence pursuant to its principal objective of determining of whether or not the COC should be cancelled. We held in Mastura v. COMELEC:38

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The rule that factual findings of administrative bodies will not be disturbed by courts of justice except when there is absolutely no evidence or no substantial evidence in support of such findings should be applied with greater force when it concerns the COMELEC, as the framers of the Constitution intended to place the COMELEC — created and explicitly made independent by the Constitution itself — on a level higher than statutory administrative organs. The COMELEC has broad powers to ascertain the true results of the election by means available to it. For the attainment of that end, it is not strictly bound by the rules of evidence.1âwphi1 Time and again, We emphasize that the "grave abuse of discretion" which warrants this Court’s exercise of certiorari jurisdiction has a welldefined meaning. Guidance is found in Beluso v. Commission on Elections39 where the Court held: x x x A petition for certiorari will prosper only if grave abuse of discretion is alleged and proved to exist. "Grave abuse of discretion," under Rule 65, has a specific meaning. It is the arbitrary or despotic exercise of power due to passion, prejudice or personal hostility; or the whimsical, arbitrary, or capricious exercise of power that amounts to an evasion or refusal to perform a positive duty enjoined by law or to act at all in contemplation of law. For an act to be struck down as having been done with grave abuse of discretion, the abuse of discretion must be patent and gross. (Emphasis supplied.) Here, this Court finds that petitioner failed to adequately and substantially show that grave abuse of discretion exists. Lastly, anent the proposition of petitioner that the act of the COMELEC in enforcing the provisions of R.A. No. 9225, insofar as it adds to the qualifications of Members of the House of Representatives other than those enumerated in the Constitution, is unconstitutional, We find the same meritless. The COMELEC did not impose additional qualifications on candidates for the House of Representatives who have acquired foreign citizenship. It merely applied the qualifications prescribed by Section 6, Article VI of the 1987 Constitution that the candidate must be a natural-born citizen of the Philippines and must have one-year residency prior to the date of elections. Such being the case, the COMELEC did not err when it inquired into the compliance by petitioner of Sections 3 and 5 of R.A. No. 9225 to determine if she reacquired her status as a natural-born Filipino citizen. It simply applied the constitutional provision and nothing more. IN VIEW OF THE FOREGOING, the instant petition is DISMISSED, finding no grave abuse of discretion on the part of the Commission on Elections. The 14 May 2013 Resolution of the COMELEC En Bane affirming the 27 March 2013 Resolution of the COMELEC First Division is upheld. SO ORDERED. JOSE Associate Justice

PORTUGAL

PEREZ

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 207264

October 22, 2013

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

Petitioner,

RESOLUTION PEREZ, J.: This is a Motion for Reconsideration of the En Bane Resolution of 25 June 2013 which stated that: IN VIEW OF THE FOREGOING, the instant petition is DISMISSED, finding no grave abuse of discretion on the part of the Commission on Elections. The 14 May 2013 Resolution of the COMELEC En Banc affirming the 27 March 2013 Resolution of the COMELEC First Division is upheld." In her Motion for Reconsideration, petitioner summarizes her submission, thus: "81. Stated differently, the Petitioner x x x is not asking the Honorable Court to make a determination as regards her qualifications, she is merely asking the Honorable Court to affirm the jurisdiction of the HRET to solely and exclusively pass upon such qualifications and to set aside the COMELEC Resolutions for having denied Petitioner her right to due process and for unconstitutionally adding a qualification not otherwise required by the constitution."1(as originally underscored) The first part of the summary refers to the issue raised in the petition, which is: "31. Whether or not Respondent Comelec is without jurisdiction over Petitioner who is duly proclaimed winner and who has already taken her oath of office for the position of Member of the House of Representatives for the lone congressional district of Marinduque."2 Tied up and neatened the propositions on the COMELEC-or-HRET jurisdiction go thus: petitioner is a duly proclaimed winner and having taken her oath of office as member of the House of Representatives, all questions regarding her qualifications are outside the jurisdiction of the COMELEC and are within the HRET exclusive jurisdiction. The averred proclamation is the critical pointer to the correctness of petitioner's submission. The crucial question is whether or not petitioner could be proclaimed on 18 May 2013. Differently stated, was there basis for the proclamation of petitioner on 18 May 2013? Dates and events indicate that there was no basis for the proclamation of petitioner on 18 May 2013. Without the proclamation, the petitioner's oath of office is likewise baseless, and without a precedent oath of office, there can be no valid and effective assumption of office. We have clearly stated in our Resolution of 5 June 2013 that: "More importantly, we cannot disregard a fact basic in this controversy – that before the proclamation of petitioner on 18 May 2013, the COMELEC En Banc had already finally disposed of the issue of petitioner's lack of Filipino citizenship and residency via its Resolution dated 14 May 2013. After 14

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May 2013, there was, before the COMELEC, no longer any pending case on petitioner's qualifications to run for the position of Member of the House of Representatives. x x x As the point has obviously been missed by the petitioner who continues to argue on the basis of her due proclamation, the instant motion gives us the opportunity to highlight the undeniable fact we here repeat that the proclamation which petitioner secured on 18 May 2013 was WITHOUT ANY BASIS. 1. Four (4) days BEFORE the 18 May 2013 proclamation, or on 14 May 2013, the COMELEC En Banc has already denied for lack o merit the petitioner's motion to reconsider the decision o the COMELEC First Division that CANCELLED petitioner's certificate of candidacy. 2. On 18 May 2013, there was already a standing and unquestioned cancellation of petitioner's certificate o candidacy which cancellation is a definite bar to her proclamation. On 18 May 2003, that bar has not been removed, there was not even any attempt to remove it. 3. The COMELEC Rules indicate the manner by which the impediment to proclamation may be removed. Rule 18, Section 13 (b) provides: "(b) In Special Actions and Special Cases a decision or resolution of the Commission En Bane shall become final and executory after five (5) days from its promulgation unless restrained by the Supreme Court." Within that five (5 days, petitioner had the opportunity to go to the Supreme Court for a restraining order that will remove the immediate effect of the En Banc cancellation of her certificate of candidacy. Within the five (5) days the Supreme Court may remove the barrier to, and thus allow, the proclamation of petitioner. That did not happen. Petitioner did not move to have it happen. It is error to argue that the five days should pass before the petitioner is barred from being proclaimed. Petitioner lost in the COMELEC as of respondent. Her certificate of candidacy has been ordered cancelled. She could not be proclaimed because there was a final finding against her by the COMELEC.3 She needed a restraining order from the Supreme Court to avoid the final finding. After the five days when the decision adverse to her became executory, the need for Supreme Court intervention became even more imperative. She would have to base her recourse on the position that the COMELEC committed grave abuse of discretion in cancelling her certificate of candidacy and that a restraining order, which would allow her proclamation, will have to be based on irreparable injury and demonstrated possibility of grave abuse of discretion on the part of the COMELEC. In this case, before and after the 18 May 2013 proclamation, there was not even an attempt at the legal remedy, clearly available to her, to permit her proclamation. What petitioner did was to "take the law into her hands" and secure a proclamation in complete disregard of the COMELEC En Bane decision that was final on 14 May 2013 and final and executory five days thereafter.

4. There is a reason why no mention about notice was made in Section 13(b) of Rule 18 in the provision that the COMELEC En Bane or decision "SHALL become FINAL AND EXECUTORY after five days from its promulgation unless restrained by the Supreme Court." On its own the COMELEC En Bane decision, unrestrained, moves from promulgation into becoming final and executory. This is so because in Section 5 of Rule 18 it is stated: Section 5. Promulgation. -The promulgation of a decision or resolutions of the Commission or a division shall be made on a date previously fixed, of which notice shall be served in advance upon the parties or their attorneys personally or by registered mail or by telegram. 5. Apart from the presumed notice of the COMELEC En Bane decision on the very date of its promulgation on 14 May 2013, petitioner admitted in her petition before us that she in fact received a copy of the decision on 16 May 20 13.4 On that date, she had absolutely no reason why she would disregard the available legal way to remove the restraint on her proclamation, and, more than that, to in fact secure a proclamation two days thereafter. The utter disregard of a final COMELEC En Bane decision and of the Rule stating that her proclamation at that point MUST be on permission by the Supreme Court is even indicative of bad faith on the part of the petitioner.

6. The indicant is magnified by the fact that petitioner would use her tainted proclamation as the very reason to support her argument that she could no longer be reached by the jurisdiction of the

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COMELEC; and that it is the HRET that has exclusive jurisdiction over the issue of her qualifications for office. 7. The suggestions of bad faith aside, petitioner is in error in the conclusion at which she directs, as well as in her objective quite obvious from such conclusion. It is with her procured proclamation that petitioner nullifies the COMELEC's decision, by Division and then En Banc and pre-empts any Supreme Court action on the COMELEC decision. In other words, petitioner repudiates by her proclamation all administrative and judicial actions thereon, past and present. And by her proclamation, she claims as acquired the congressional seat that she sought to be a candidate for. As already shown, the reasons that lead to the impermissibility of the objective are clear. She cannot sit as Member of the House of Representatives by virtue of a baseless proclamation knowingly taken, with knowledge of the existing legal impediment. 8. Petitioner, therefore, is in error when she posits that at present it is the HRET which has exclusive jurisdiction over her qualifications as a Member of the House of Representatives. That the HRET is the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives is a written constitutional provision. It is, however unavailable to petitioner because she is NOT a Member of the House at present. The COMELEC never ordered her proclamation as the rightful winner in the election for such membership.5 Indeed, the action for cancellation of petitioner's certificate of candidacy, the decision in which is the indispensable determinant of the right of petitioner to proclamation, was correctly lodged in the COMELEC, was completely and fully litigated in the COMELEC and was finally decided by the COMELEC. On and after 14 May 2013, there was nothing left for the COMELEC to do to decide the case. The decision sealed the proceedings in the COMELEC regarding petitioner's ineligibility as a candidate for Representative of Marinduque. The decision erected the bar to petitioner's proclamation. The bar remained when no restraining order was obtained by petitioner from the Supreme Court within five days from 14 May 2013.

9. When petitioner finally went to the Supreme Court on 10 June 2013 questioning the COMELEC First Division ruling and the 14 May 2013 COMELEC En Bane decision, her baseless proclamation on 18 May 2013 did not by that fact of promulgation alone become valid and legal. A decision favorable to her by the Supreme Court regarding the decision of the COMELEC En Bane on her certificate of candidacy was indispensably needed, not to legalize her proclamation on 18 May 2013 but to authorize a proclamation with the Supreme Court decision as basis. 10. The recourse taken on 25 June 2013 in the form of an original and special civil action for a writ of Certiorari through Rule 64 of the Rules of Court is circumscribed by set rules and principles. a) The special action before the COMELEC which was a Petition to Cancel Certificate of Candidacy was a SUMMARY PROCEEDING or one heard summarily. The nature of the proceedings is best indicated by the COMELEC Rule on Special Actions, Rule 23, Section 4 of which states that the Commission may designate any of its officials who are members of the Philippine Bar to hear the case and to receive evidence. COMELEC Rule 17 further provides in Section 3 that when the proceedings are authorized to be summary, in lieu of oral testimonies, the parties may, after due notice, be required to submit their position paper together with affidavits, counter-affidavits and other documentary evidence; x x x and that this provision shall likewise apply to cases where the hearing and reception of evidence are delegated by the Commission or the Division to any of its officials x x x. b) The special and civil action of Certiorari is defined in the Rules of Court thus: When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

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The accepted definition of grave abuse of discretion is: a capricious and whimsical exercise of judgment so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary and despotic manner because of passion or hostility.6 It is the category of the special action below providing the procedural leeway in the exercise of the COMELEC summary jurisdiction over the case, in conjunction with the limits of the Supreme Court's authority over the FINAL COMELEC ruling that is brought before it, that defines the way petitioner's submission before the Court should be adjudicated. Thus further explained, the disposition of 25 June 2013 is here repeated for affirmation: Petitioner alleges that the COMELEC gravely abused its discretion when it took cognizance of "newlydiscovered evidence" without the same having been testified on and offered and admitted in evidence. She assails the admission of the blog article of Eli Obligacion as hearsay and the photocopy of the Certification from the Bureau of Immigration. She likewise contends that there was a violation of her right to due process of law because she was not given the opportunity to question and present controverting evidence. Her contentions are incorrect. It must be emphasized that the COMELEC is not bound to strictly adhere to the technical rules of procedure in the presentation of evidence. Under Section 2 of Rule I the COMELEC Rules of Procedure shall be liberally construed in order x x x to achieve just, expeditious and inexpensive determination and disposition of every action and proceeding brought before the Commission. In view of the fact that the proceedings in a petition to deny due course or to cancel certificate of candidacy are summary in nature, then the newly discovered evidence was properly admitted by respondent COMELEC. Furthermore, there was no denial of due process in the case at bar as petitioner was given every opportunity to argue her case before the COMELEC. From 10 October 2012 when Tan's petition was filed up to 27 March 2013 when the First Division rendered its resolution, petitioner had a period of five (5) months to adduce evidence. Unfortunately, she did not avail herself of the opportunity given her. Also, in administrative proceedings, procedural due process only requires that the party be given the opportunity or right to be heard. As held in the case of Sahali v. COMELEC: The petitioners should be reminded that due process does not necessarily mean or require a hearing, but simply an opportunity or right to be heard. One may be heard, not solely by verbal presentation but also, and perhaps many times more creditably and predictable than oral argument, through pleadings. In administrative proceedings moreover, technical rules of procedure and evidence are not strictly applied; administrative process cannot be fully equated with due process in its strict judicial sense. Indeed, deprivation of due process cannot be successfully invoked where a party was given the chance to be he rd on his motion for reconsideration. (Emphasis supplied) As to the ruling that petitioner s ineligible to run for office on the ground of citizenship, the COMELEC First Division, discoursed as follows: "x x x for respondent to reacquire her Filipino citizenship and become eligible for public office the law requires that she must have accomplished the following acts: (1) take the oath of allegiance to the Republic of the Philippines before the Consul-General of the Philippine Consulate in the USA; and (2) make a personal and sworn renunciation of her American citizenship before any public officer authorized to administer an oath.

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In the case at bar, there s no showing that respondent complied with the aforesaid requirements. Early on in the proceeding, respondent hammered on petitioner's lack of proof regarding her American citizenship, contending that it is petitioner's burden to present a case. She, however, specifically denied that she has become either a permanent resident or naturalized citizen of the USA. Due to petitioner's submission of newly-discovered evidence thru a Manifestation dated February 7, 2013, however, establishing the fact that respondent is a holder of an American passport which she continues to use until June 30 2012 petitioner was able to substantiate his allegations. The burden now shifts to respondent to present substantial evidence to prove otherwise. This, the respondent utterly failed to do, leading to the conclusion inevitable that respondent falsely misrepresented in her COC that she is a natural-born Filipino citizen. Unless and until she can establish that she had availed of the privileges of RA 9225 by becoming a dual Filipino-American citizen, and thereafter, made a valid sworn renunciation of her American citizenship, she remains to be an American citizen and is, therefore, ineligible to run for and hold any elective public office in the Philippines." (Emphasis in the original.) Let us look into the events that led to this petition: In moving for the cancellation of petitioner's COC, respondent submitted records of the Bureau of Immigration showing that petitioner is a holder of a US passport, and that her status is that of a balikbayan. At this point, the burden of proof shifted to petitioner, imposing upon her the duty to prove that she is a natural-born Filipino citizen and has not lost the same, or that she has re-acquired such status in accordance with the provisions of R.A. No. 9225. Aside from the bare allegation that she is a natural-born citizen, however, petitioner submitted no proof to support such contention. Neither did she submit any proof as to the inapplicability of R.A. No. 9225 to her. Notably, in her Motion for Reconsideration before the COMELEC En Bane, petitioner admitted that she is a holder of a US passport, but she averred that she is only a dual Filipino-American citizen, thus the requirements of R.A. No. 9225 do not apply to her. Still, attached to the said motion is an Affidavit of Renunciation of Foreign Citizenship dated 24 September 2012. Petitioner explains that she attached said Affidavit if only to show her desire and zeal to serve the people and to comply with rules, even as a superfluity. We cannot, however, subscribe to petitioner's explanation. If petitioner executed said Affidavit if only to comply with the rules, then it is an admission that R.A. No. 9225 applies to her. Petitioner cannot claim that she executed it to address the observations by the COMELEC as the assailed Resolutions were promulgated only in 2013, while the Affidavit was executed in September 2012.1âwphi1 Moreover, in the present petition, petitioner added a footnote to her oath of office as Provincial Administrator, to this effect: This does not mean that Petitioner did not, prior to her taking her oath of office as Provincial Administrator, take her oath of allegiance for purposes of re-acquisition of naturalborn Filipino status, which she reserves to present in the proper proceeding. The reference to the taking of oath of office is in order to make reference to what is already part of the records and evidence in the present case and to avoid injecting into the records evidence on matters of fact that was not previously passed upon by Respondent COMELEC. This statement raises a lot of questions -Did petitioner execute an oath of allegiance for re-acquisition of natural-born Filipino status? If she did, why did she not present it at the earliest opportunity before the COMELEC? And is this an admission that she has indeed lost her natural-born Filipino status? To cover-up her apparent lack of an oath of allegiance as required by R.A. No. 9225, petitioner contends that, since she took her oath of allegiance in connection with her appointment as Provincial Administrator of Marinduque, she is deemed to have reacquired her status as a natural-born Filipino citizen.

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This contention is misplaced. For one, this issue is being presented for the first time before this Court, as it was never raised before the COMELEC. For another, said oath of allegiance cannot be considered compliance with Sec. 3 of R.A. No. 9225 as certain requirements have to be met as prescribed by Memorandum Circular No. AFF-04-01, otherwise known as the Rules Governing Philippine Citizenship under R.A. No. 9225 and Memorandum Circular No. AFF-05-002 (Revised Rules) and Administrative Order No. 91, Series of 2004 issued by the Bureau of Immigration. Thus, petitioner s oath of office as Provincial Administrator cannot be considered as the oath of allegiance in compliance with R.A. No. 9225. These circumstances, taken together, show that a doubt was clearly cast on petitioner s citizenship. Petitioner, however, failed to clear such doubt.7 11. It may need pointing out that there is no conflict between the COMELEC and the HRET insofar as the petitioner s being a Representative of Marinduque is concerned. The COMELEC covers the matter of petitioner s certificate of candidacy, and its due course or its cancellation, which are the pivotal conclusions that determines who can be legally proclaimed. The matter can go to the Supreme Court but not as a continuation of the proceedings in the COMELEC, which has in fact ended, but on an original action before the Court grounded on more than mere error of judgment but on error of jurisdiction for grave abuse of discretion. At and after the COMELEC En Bane decision, there is no longer any certificate cancellation matter than can go to the HRET. In that sense, the HRET s constitutional authority opens, over the qualification of its MEMBER, who becomes so only upon a duly and legally based proclamation, the first and unavoidable step towards such membership. The HRET jurisdiction over the qualification of the Member of the House of Representatives is original and exclusive, and as such, proceeds de novo unhampered by the proceedings in the COMELEC which, as just stated has been terminated. The HRET proceedings is a regular, not summary, proceeding. It will determine who should be the Member of the House. It must be made clear though, at the risk of repetitiveness, that no hiatus occurs in the representation of Marinduque in the House because there is such a representative who shall sit as the HRET proceedings are had till termination. Such representative is the duly proclaimed winner resulting from the terminated case of cancellation of certificate of candidacy of petitioner. The petitioner is not, cannot, be that representative. And this, all in all, is the crux of the dispute between the parties: who shall sit in the House in representation of Marinduque, while there is yet no HRET decision on the qualifications of the Member. 12. As finale, and as explained in the discussion just done, no unwarranted haste can be attributed, as the dissent does so, to the resolution of this petition promulgated on 25 June 2013. It was not done to prevent the exercise by the HRET of its constitutional duty. Quite the contrary, the speedy resolution of the petition was done to pave the way for the unimpeded performance by the HRET of its constitutional role. The petitioner can very well invoke the authority of the HRET, but not as a sitting member of the House of Representatives.8 The inhibition of this ponente was moved for. The reason for the denial of the motion was contained in a letter to the members of the Court on the understanding that the matter was internal to the Court. The ponente now seeks the Courts approval to have the explanation published as it is now appended to this Resolution. The motion to withdraw petition filed AFTER the Court has acted thereon, is noted. It may well be in order to remind petitioner that jurisdiction, once acquired, is not lost upon the instance of the parties, but continues until the case is terminated.9 When petitioner filed her Petition for Certiorari jurisdiction vested in the Court and, in fact, the Court exercised such jurisdiction when it acted on the petition. Such jurisdiction cannot be lost by the unilateral withdrawal of the petition by petitioner.

More importantly, the Resolution dated 25 June 2013, being a valid court issuance, undoubtedly has legal consequences. Petitioner cannot, by the mere expediency of withdrawing the petition, negative

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and nullify the Court's Resolution and its legal effects. At this point, we counsel petitioner against trifling with court processes. Having sought the jurisdiction of the Supreme Court, petitioner cannot withdraw her petition to erase the ruling adverse to her interests. Obviously, she cannot, as she designed below, subject to her predilections the supremacy of the law. WHEREFORE, The Motion for Reconsideration is DENIED. The dismissal of the petition is affirmed. Entry of Judgment is ordered. SO ORDERED. JOSE Associate Justice

PORTUGAL

PEREZ

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EN BANC G.R. No. 205505, September 29, 2015 ATTY. ISIDRO Q. LICO, RAFAEL A. PUENTESPINA, PROCULO T. SARMEN, AMELITO L. REVUELTA, WILLIAM C. YBANEZ, SILVERIO J. SANCHEZ, GLORIA G. FUTALAN, HILARIO DE GUZMAN, EUGENE M. PABUALAN, RODOLFO E. PEREZ, HIPOLITO R. QUILLAN, MARIO ARENAS, TIRSO C. BUENAVENTURA, LYDIA B. TUBELLA, REYNALDO C. GOLO& JONATHAN DEQUINA IN THEIR INDIVIDUAL CAPACITIES, AND AS LEGITIMATE MEMBERS AND OFFICERS OF ADHIKAING TINATAGUYOD NG KOOPERATIBA (ATING KOOP PARTY LIST), Petitioners, v. THE COMMISSION ON ELECTIONS EN BANC AND THE SELFSTYLED SHAM ATING KOOP PARTYLIST REPRESENTED BY AMPARO T. RIMAS, Respondents. DECISION SERENO, C.J.: The pivotal and interrelated issues before Us in this case involve the seemingly elementary matter of the Commission on Elections' (COMELEC) jurisdiction over the expulsion of a sitting party-list representative: from the House of Representatives, on the one hand; and from his party-list organization, on the other. The instant case involves two rival factions of the same party-list organization, the Adhikaing Tinataguyod ng Kooperatiba (Ating Koop). One group is headed by petitioner Atty. Isidro Q. Lico (the Lico Group), who represents the organization in the House of Representatives, and the other group by Amparo T. Rimas (respondents herein, or the Rimas Group).

THE CASE

Before Us is a Petition for Certiorari under Rule 641 in relation to Rule 65,2 seeking to annul the Resolutions in E.M. No. 12-039 dated 18 July 2012 and 31 January 2013 of the COMELEC.

THE ANTECEDENT FACTS

Ating Koop is a multi-sectoral party-list organization which was registered on 16 November 2009 under Republic Act (R.A.) No. 7941, also known as the Party-List System Act (Party-List Law). Under Ating Koop's Constitution and By-Laws, its highest policymaking body is the National Convention. The Central Committee, however, takes over when the National Convention is not in session. 3 On 6 March 2010, it filed with the COMELEC the list of its nominees, with petitioner Lico as first nominee and Roberto Mascarina as second nominee. On 30 November 2009, Ating Koop filed its Manifestation of Intent to Participate in the Party-List System of Representation for the 10 May 2010 Elections.4

On 8 December 2010, COMELEC proclaimed Ating Koop as one of the winning party-list groups.5 Based on the procedure provided in BANAT Party-List v. COMELEC,6 Ating Koop earned a seat in the House of Representatives. Petitioner Lico subsequently took his oath of office on 9 December 2010 before the Secretary-General of the House of Representatives,7 and thereafter assumed office. Several months prior to its proclamation as one of the winning party-list organizations, or on 9 June 2010, Ating Koop issued Central Committee Resolution 2010-01, which incorporated a term-sharing agreement signed by its

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nominees.8 Under the agreement, petitioner Lico was to serve as Party-list Representative for the first year of the three-year term.9 On 14 May 2011, Ating Koop held its Second National Convention, during which it introduced amendments to its Constitution and By-laws. Among the salient changes was the composition

which would still be composed of 15 representatives but with five each coming from Luzon, Visayas and Mindanao (5-5-5 equal representation).11 The amendments likewise mandated the holding of an election of Central Committee members within six months after the Second National Convention.12 of the Central Committee,10

The Group.

In effect, the amendments cut short the three-year term of the incumbent members (referred to hereafter as the Interim Central Committee) of the Central Committee.13

Interim

Central

Committee

was

dominated

by

members

of

the

Rimas

On 5 December 2011, or almost one year after petitioner Lico had assumed office, the Interim Central Committee expelled him from Ating Koop for disloyalty.14 Apart from allegations of malversation and graft and corruption, the Committee cited petitioner Lico's refusal to honor the term-sharing agreement as factual basis for disloyalty and as cause for his expulsion under Ating Koop's Amended Constitution and By-laws.15 On 8 December 2011, Congressman Lico filed a Motion for Reconsideration with the Interim Central Committee,16

Resolution

dated

29

which subsequently denied the same in a December 2011.17

While petitioner Lico's Motion for Reconsideration was pending, the Lico Group held a special meeting in Cebu City (the Cebu meeting) on 19 December 2011. At the said meeting, new

The election was purportedly held for the purpose of implementing the 5-5-5 equal representation amendment made during the Second National Convention.19 members of the Central Committee, as well as a new set of officers, were elected.18

(the Para�aque convention), at which a new Central Committee and a new set of officers were constituted.21Members of the Rimas Group won the election and occupied all the corresponding seats. On 21 January 2012, the Rimas Group held a Special National Convention in Para�aque City20

PROCEEDINGS BEFORE THE COMELEC SECOND DIVISION

On 16 March 2012, the Rimas Group, claiming to represent Ating Koop, filed with COMELEC a Petition against petitioner Lico docketed as E.M. No. 12-039.22 The said Petition, which was subsequently raffled to the Second Division, prayed that petitioner Lico be ordered to vacate the office of Ating Koop in the House of Representatives, and for the succession of the second nominee, Roberto Mascarina as Ating Koop's representative in the House. The Rimas Group thereafter filed an Amended Petition with the COMELEC on 14 May 2012, this time impleading not only petitioner Lico but the entire Lico Group. The Amended Petition also prayed that the COMELEC nullify the election conducted at the Cebu meeting and recognize the Paranaque convention. In both the Petition and the Amended Petition, the Rimas Group alleged that Ating Koop had expelled Congressman Lico for acts inimical to the party-list group, such as malversation, graft and corruption, and that he had "boldly displayed his recalcitrance to honor party commitment to be upright and consistently honest, thus violating basic principles of the Ating Koop."23 The Amended Petition stated further that the Cebu meeting held by the Lico Group violated notice and quorum requirements.24 the COMELEC Second Division upheld the expulsion of petitioner Lico from Ating Koop and declared Mascarina as the duly qualified nominee of the party-list group.26 The Second Division characterized the issue of the validity of the expulsion of petitioner Lico from Ating Koop as an intra-party leadership dispute, which it could resolve as an incident of its power to register political parties.27chanroblesvirtuallawlibrary In a Resolution dated 18 July 2012,25

PROCEEDINGS BEFORE THE COMELEC EN BANC

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Consequently, the Lico Group filed a Motion for Reconsideration from the Second Division's Resolution, which the COMELEC En Banc denied on 31 January 2013. The dispositive portion of its Resolution reads:cralawlawlibrary

WHEREFORE, premises considered, the Commission (En Banc) RESOLVES, as it hereby RESOLVED, to: a. DISMISS the instant Petition to Expel Respondent Atty. Isidro Q. Lico in the House of Representatives and to Sanction the Immediate Succession of the Second Nominee of ATING KOOP Party List, Mr. Roberto C. Mascarina as its Party Representative, for lack of jurisdiction;ChanRoblesVirtualawlibrary b.

UPHOLD the Expulsion of Respondent Atty. Isidro Lico from ATING KOOP Party-list Group; [and]

c. UPHOLD the ATING KOOP Party-list Group represented by its President, Amparo T. Rimas, as the legitimate Partylist Group accredited by the Commission on Elections, to the exclusion of respondents Atty. Isidro Q. Lico, Rafael A. Puentespina, Proculo T. Sarmen, Amelito L. Revuelta, William C. Ybanez, Silverio J. Sanchez, Gloria G. Futalan, Hilario De Guzman, Eugene M. Pabualan, Rodolfo E. Perez, Hipolito R. Quillan, Mario Arenas, Tirso C. Buenaventura, Lydia B. Tubella, and Jonathan Dequina.28 chanrobleslaw

In arriving at its Resolution, the COMELEC En Banc held that it had no jurisdiction to expel Congressman Lico from the House of Representatives, considering that his expulsion from Ating Koop affected his qualifications as member of the House, and therefore it was the House of Representatives Electoral Tribunal (HRET) that had jurisdiction over the Petition. At the same time, the COMELEC upheld the validity of petitioner Lico's expulsion from Ating Koop, explaining that when the Interim Central Committee ousted him from Ating Koop, the said Committee's members remained in holdover capacity even after their terms had expired;29 and that the COMELEC was not in a position to substitute its judgment for that of Ating Koop with respect to the cause of the expulsion.30 En Banc recognized the Rimas Group as the legitimate representative of Ating Koop considering that: 1) it found nothing in the records to show that the Lico Group made a valid call for the special election of Central Committee members as required under the Amended Constitution and By-Laws;31 2) there is nothing on record indicating that a minimum of 100 attended the Cebu meeting;32and 3) the Para�aque convention was in accordance with Ating Koop's Amended Constitution and By-Laws.33 Finally, the COMELEC

Hence,

this

Petition:

the

Lico

Group

now

comes

before

Us,

praying

for

a

review

of

the

COMELEC

Resolutions.

The Court's Ruling

On the the expulsion of of Representatives organization

COMELEC's a

Member from

jurisdiction of his

the

over House party-list

We find that while the COMELEC correctly dismissed the Petition to expel petitioner Lico from the House of Representatives for being beyond its jurisdiction, it nevertheless proceeded to rule upon the validity of his expulsion from Ating Koop a matter beyond its purview. The COMELEC notably characterized the Petition for expulsion of petitioner Lico from the House of

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Representatives and for the succession of the second nominee as party-list representative as a disqualification case. For this reason, the COMELEC dismissed the petition for lack of jurisdiction, insofar as it relates to the question of unseating petitioner Lico from the House of Representatives. Section 17, Article VI of the 1987 Constitution 34 endows the HRET with jurisdiction to resolve questions on the qualifications of members of Congress. In the case of party-list representatives, the HRET acquires jurisdiction over a disqualification case upon proclamation of the winning party-list group, oath of the nominee, and assumption of office as member of the House of Representatives.35 In this case, the COMELEC proclaimed Ating Koop as a winning party-list group; petitioner Lico took his oath; and he assumed office in the House of Representatives. Thus, it is the HRET, and not the COMELEC, that has jurisdiction over the disqualification case. What We find to be without legal basis, however, is the action of the COMELEC in upholding the validity of the expulsion of petitioner Lico from Ating Koop, despite its own ruling that the HRET has jurisdiction over the disqualification issue. These findings already touch upon the qualification requiring a party-list nominee to be a bona fide member of the party-list group sought to be represented. The COMELEC justified its Resolution on the merits of the expulsion, by relying on the rule that it can decide intraparty matters as an incident of its constitutionally granted powers and functions. It cited Lokin v. COMELEC, where We held that when the resolution of an intra-party controversy is necessary or incidental to the performance of the constitutionally-granted functions of the COMELEC, the latter can step in and exercise jurisdiction over the intraparty matter.36 The Lokin case, however, involved nominees and not incumbent members of Congress. In the present case, the fact that petitioner Lico was a member of Congress at the time of his expulsion from Ating Koop removes the matter from the jurisdiction of the COMELEC. The rules on intra-party matters and on the jurisdiction of the HRET are not parallel concepts that do not intersect. Rather, the operation of the rule on intra-party matters is circumscribed by Section 17 of Article VI of the 1987 Constitution and jurisprudence on the jurisdiction of electoral tribunals. The jurisdiction of the HRET is exclusive. It is given full authority to hear and decide the cases on any matter touching on the validity of the title of the proclaimed winner.37 In the present case, the Petition for petitioner Lico's expulsion from the House of Representatives is anchored on his expulsion from Ating Koop, which necessarily affects his title as

bona fide member of the party or organization for at least ninety (90) days preceding the day of the election. Needless to say, bona fide membership in the party-list group is a continuing qualification. We have ruled that qualifications for public office, whether elective or not, are continuing requirements. They must be possessed not only at the time of appointment or election, or of assumption of office, but during the officer's entire tenure.39 member of Congress. A party-list nominee must have been, among others, a

bona fide membership in a party-list organization. In Abayon v. HRET,40 it was argued that the petitioners did not belong to the marginalized and underrepresented sectors that they should represent; as such, they could not be properly considered bona fide members of their respective party-list organizations. The Court held that it was for the HRET to interpret the meaning of the requirement of bona fide membership in a party-list organization. It reasoned that under Section 17, Article VI of the Constitution, the HRET is the sole judge of all contests when it comes to qualifications of the members of the House of Representatives.41 This is not the first time that this Court has passed upon the issue of HRET jurisdiction over the requirements for

Consequently, the COMELEC failed to recognize that the issue on the validity of petitioner Lico's expulsion from Ating Koop is integral to the issue of his qualifications to sit in Congress. This is not merely an error of law but an error of jurisdiction correctible by a writ of certiorari;42

expulsion Distinguished

issue,

as

it from

was

outside

the COMELEC should not have encroached into the its authority to do so.

Reyes

v.

COMELEC

Our ruling here must be distinguished from Regina Ongsiako Reyes v. Commission on Elections.43 In that case, We upheld the disqualification by the COMELEC of petitioner Reyes, even as she was already proclaimed winner in the elections at the time she filed her petition with the High Court. In doing so, We rejected the argument that the case fell within the exclusive jurisdiction of the HRET. In Reyes, the petitioner was proclaimed winner of the 13 May 2013 Elections, and took her oath of office before the Speaker of the House of Representatives. However, the Court ruled on her qualifications since she was not yet a

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member of the House of Representatives: petitioner Reyes had yet to assume office, the term of which would officially start at noon of 30 June 2013, when she filed a Petition for Certiorariwith Prayer for Temporary Restraining Order and/or Preliminary Injunction and/or Status Quo Ante Order dated 7 June 2013 assailing the Resolutions ordering the cancellation of her Certificate of Candidacy. In the present case, all three requirements of proclamation, oath of office, and assumption of office were satisfied. Moreover, in Reyes, the COMELEC En Banc Resolution disqualifying petitioner on grounds of lack of Filipino citizenship and residency had become final and executory when petitioner elevated it to this Court.44 It should be mentioned that when petitioner Reyes filed her petition with the Court, the COMELEC En Banc had, as early as 5 June 2013, already issued a Certificate of Finality over its 14 May 2013 Resolution disqualifying her. Therefore, there was no longer any pending case on the qualifications of petitioner Reyes to speak of. Here, the question of whether petitioner Lico remains a member of the House of Representatives in view of his expulsion from Ating Koop is a subsisting issue. Finally, in Reyes, We found the question of jurisdiction of the HRET to be a non-issue, since the recourse of the petitioner to the Court appeared to be a mere attempt to prevent the COMELEC from implementing a final and executory judgment. We said that the petitioner therein took an inconsistent, if not confusing, stance, considering that she sought remedy before the Court, and yet asserted that it is the HRET which had jurisdiction over the case.45 In this case, the question on the validity of petitioner Lico's expulsion from Ating Koop is a genuine issue that falls within the jurisdiction of the HRET, as it unmistakably affects his qualifications as party-list representative. On Ating

which

group

legitimately

represents Koop

We now pass upon the question of which, between the two contending groups, is the legitimate leadership of Ating Koop. At the outset, We reject the Lico Group's argument that the COMELEC has no jurisdiction to decide which of the feuding groups is to be recognized, and that it is the Regional Trial Court which has jurisdiction over intra-corporate controversies. Indeed, the COMELECs jurisdiction to settle the struggle for leadership within the party is well established. This power to rule upon questions of party identity and leadership is exercised by the COMELEC as an incident of its enforcement powers.46 That being said, We find the COMELEC to have committed grave abuse of discretion in declaring the Rimas Group as the legitimate set of Ating Koop officers for the simple reason that

not registered with the COMELEC. Hence, neither of the elections held during the Cebu meeting and the Paranaque conference pursuant to the said amendments, were valid. the amendments to the Constitution and By-laws of Ating Koop were

Both the Lico Group and the Rimas Group indeed assert that their respective elections were conducted pursuant to the amendment introduced in the Second National Convention held on 14 May 2011. In particular, Section 1 of Article VI of Ating Koop's By-laws called for the conduct of an election of Central Committee members within six months after the Second National Convention.47 There

is

no

showing,

however,

that

the

amendments

were

actually

filed

with

the

COMELEC.

Dayao v. COMELEC,48 We declared that it is the State, acting through the COMELEC, that breathes life to a party-list organization. The implication, therefore, is that the State, through the COMELEC, is a party to the principal contracts entered into by the party-list organization and its members - the Constitution and By-laws - such that any amendment to these contracts would constitute a novation requiring the consent of all the parties involved. An amendment to the by�laws of a party-list organization should become effective only upon approval by the COMELEC. A party-list organization owes its existence to the State and the latter's approval must be obtained through its agent, the COMELEC. In the 2013 case of

Such a prerequisite is analogous to the requirement of filing of the amended by-laws and subsequent conformity thereto of the Securities and Exchange Commission (SEC) under corporation law. Under the Corporation Code, an amendment to a by-law provision must be filed with the SEC. The amendment shall be effective only upon the issuance by the SEC of a certification that it is not inconsistent with the Corporation Code. 49 There being no showing that the amendments on the by-laws of Ating Koop were filed with and subsequently approved by the COMELEC, any election conducted pursuant thereto may

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not be considered valid. Without such requisite proof, neither the Lico Group nor the Rimas Group can claim to be the legitimate set of officers of Ating Koop.

arguendo that the amendment calling for a special election were effective, this Court still cannot declare any of the feuding groups as the legitimate set of officers considering that the respective sets of evidence presented were evenly balanced. With respect to the Lico Group's Cebu meeting, the COMELEC correctly found - and the records bear out - that the notices sent were deficient and that there was no sufficient proof of quorum. Hence, the Cebu meeting was held to be invalid. On the other hand, the COMELEC failed to appreciate the fact that the Paranaque convention suffered from the same infirmity, the records of the said convention, consisting merely of the Minutes thereof, likewise fail to establish due notice and a quorum.50 Even assuming

Accordingly, as neither group can sufficiently lay claim to legitimacy, the equipoise doctrine comes into play. This rule provides that when the evidence in an issue of fact is in equipoise, that is, when the respective sets of evidence of both parties are evenly balanced, the party having the burden of proof fails in that issue. Since neither party succeeds in making out a case, neither side prevails. The courts are left with no other option but to leave them as they are. The consequence, therefore, is the dismissal of the complaint/petition.51

The Rimas Group, being the petitioner before the COMELEC, had the burden of proving that it is the petitioner, and not the Lico Group, that is the legitimate group. As the evidence of both parties are in equipoise, the Rimas Group failed to discharge its burden. The COMELEC should have dismissed the petition of the Rimas Group insofar as it sought to be declared the legitimate

group

Ating

Koop.

Yet, the COMELEC held that the Paranaque convention "appeared to be in conformity" with Ating Koop's Amended Constitution and By-Laws.52

It should be stressed that this conclusion.53

the

COMELEC

representing

did

not

even

substantiate

But when the COMELECs assessment of the evidence is so grossly unreasonable that it turns into an error of jurisdiction, the Court is compelled to intervene and correct the error.55 The Court ordinarily refrains from reviewing the COMELEC s appreciation and evaluation of the evidence.54

As seen in the above discussions, neither of the parties was able to establish its legitimacy. The evaluation of the evidence by the COMELEC in deciding the issue of which group legitimately represents

Ating

The

final,

and

We

find

such

Koop

most

was

therefore

important

legitimate

grossly

question

leadership

to

to

unreasonable,

be

be

addressed

the

which

amounts

is:

neither

Interim

if

Central

to

of

a

the

jurisdictional

two

Committee,

error

that

groups

is

the

whose

members

may

be

legitimate

remain

remedied

leadership

as

by

of

such

certiorari

Ating

in

a

under

Koop,

then

hold-over

Rule

65.

who

is?

capacity.

Seneres v. COMELEC,56 the validity of the Certificate of Nomination filed by Buhay Party-List through its President, Roger Robles, was questioned on the ground that his term had expired at the time it was filed. The Court applied by analogy the default rule in corporation law to the effect that officers and directors of a corporation hold over after the expiration of their terms until such time as their successors are elected or appointed.57Se�eres ruled that the hold-over principle applies in the absence of a provision in the constitution or by-laws of the party-list organization prohibiting its application. In

In the present case, We have gone through the Constitution and By�laws of Ating Koop and We do not see any provision forbidding, either expressly or impliedly, the application of the hold-over rule. Thus, in accordance with corporation law, the existing Interim Central Committee is still a legitimate entity with full authority to bind the corporation and to carry out powers despite the lapse of the term of its members on 14 November 2011, since no successors had been validly elected at the time, or since. WHEREFORE, premises considered, the Petition is GRANTED. The COMELEC En Banc Resolution dated 31 January 2013 and the COMELEC Second Division Resolution dated 18 July 2012 in E.M. No. 12-039 are hereby ANNULLED and SET ASIDE insofar as it declares valid the expulsion of Congressman Lico from Ating Koop and it upholds the ATING KOOP Party-list Group represented by its President, Amparo T. Rimas, as the legitimate Party-list Group. A new one is entered DECLARING that the legitimate Central Committee and set of officers legitimately representing Ating Koop are the Interim Central Committee and set of officers prior to the split of Ating Koop. SO

ORDERED.chanroblesvirtuallawlibrary

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EN BANC [G.R. No. 160465. May 27, 2004]

ROMEO M. ESTRELLA, petitioner, vs. COMMISSION ON ELECTIONS, HON. COMMISSIONER RALPH C. LANTION and ROLANDO F. SALVADOR, respondents. RESOLUTION CARPIO MORALES, J.:

From this Courts Resolution of April 28, 2004, private respondent Rolando F. Salvador seeks a reconsideration. In his petition for certiorari filed before this Court, petitioner Romeo M. Estrella sought the nullification of the November 5, 2003 Status Quo Ante Order[1] issued by the Commission on Elections (COMELEC) En Banc in EAC No. A-10-2002, Romeo M. Estrella v. Rolando F. Salvador, directing the parties to maintain the status quo ante order, which is the condition prevailing before the issuance by the Regional Trial Court of Malolos of a writ of execution for the enforcement of said courts decision declaring petitioner as the duly elected mayor of Baliwag, Bulacan. In the issuance of the questioned COMELEC En Banc Status Quo Ante Order, five (5) of the then incumbent seven (7) members of the COMELEC participated: Commissioners Benjamin Abalos, Sr., Luzviminda Tangcangco, Rufino S.B. Javier, Ressureccion Z. Borra and Ralph C. Lantion. Commissioners Abalos, Tangcangco, Javier and Lantion voted for the issuance of said order, while Commissioner Borra dissented. Commissioner Lantion previously inhibited in SPR No. 21-2002, a case pending before the COMELEC Second Division involving the same parties, thus necessitating the issuance of an order designating Commissioner Borra as his substitute. The substitution order was subsequently adopted in EAC No. A-10-2002. Parenthetically, petitioner had previously filed a Motion for Inhibition of Commissioner Lantion before the Second Division in SPR No. 21-2002 which was denied, albeit on Motion for Reconsideration the Second Division, in its Resolution of May 7, 2002, noted that Com[missioner] Lantion indicated for the record that he is no longer taking part in the proceedings in this case. In the COMELEC En Banc Status Quo Ante Order, Commissioner Lantion stated in his handwriting that his previous voluntary inhibition is only in the SPR cases and not in the EAC and that as further agreed in the Second Division, [he] will not participate in the Division deliberations but will vote when the case is elevated [to the] en banc. In this Courts Resolution[2] of April 28, 2004 now the subject of private respondents Motion for Reconsideration, it was held that: Commissioner Lantions voluntary piecemeal inhibition cannot be countenanced. Nowhere in the COMELEC Rules does it allow a Commissioner to voluntarily inhibit with reservation. To allow him to participate in the En Banc proceedings when he previously inhibited himself in the Division is, absent any satisfactory justification, not only judicially unethical but legally improper and absurd.

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Since Commissioner Lantion could not participate and vote in the issuance of the questioned order, thus leaving three (3) members concurring therewith, the necessary votes of four (4) or majority of the members of the COMELEC was not attained. The order thus failed to comply with the number of votes necessary for the pronouncement of a decision or order, as required under Rule 3, Section 5(a) of the COMELEC Rules of Procedure which provides: Section 5. Quorum; Votes Required. (a) When sitting en banc, four (4) Members of the Commission shall constitute a quorum for the purpose of transacting business. The concurrence of a majority of the Members of the Commission shall be necessary for the pronouncement of a decision, resolution, order or ruling. WHEREFORE, the instant petition is GRANTED. The Status Quo Ante Order dated November 5, 2003 issued by the COMELEC En Banc is hereby NULLIFIED. This Resolution is IMMEDIATELY EXECUTORY. (Emphasis and underscoring supplied) In seeking a reconsideration of the above-quoted Resolution, private respondent cites Cua v. Commission on Elections[3] wherein this Court ruled: After considering the issues and the arguments raised by the parties, the Court holds that the 2-1 decision rendered by the First Division was a valid decision under Article IX-A, section 7 of the Constitution.Furthermore, the three members who voted to affirm the First Division constituted a majority of the five members who deliberated and voted thereon en banc and their decision is also valid under the aforecited constitutional provision. x x x (Italics in the original; emphasis supplied) Private respondent argues that [f]ollowing the doctrine laid out in Cua, three (3) votes would have been sufficient to constitute a majority to carry the decision of the COMELEC En Bancas provided by the Constitution and the appropriate rules.[4] Section 5(a) of the COMELEC Rules of Procedure was lifted from Section 7, Article IX-A of the Constitution which provides: SECTION 7. Each Commission shall decide by a majority vote of all its members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. x x x (Emphasis and underscoring supplied) The provision of the Constitution is clear that it should be the majority vote of all its members and not only those who participated and took part in the deliberations. Under the rules of statutory construction, it is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained.[5] Since the above-quoted constitutional provision states all of its members, without any qualification, it should be interpreted as such.

In the case at bar, following the clear provision of the Constitution, counting out Commissioner Lantions vote from the questioned COMELEC En Banc resolution would leave just three (3) votes out of all seven (7) members of the COMELEC. Even former Constitutional Commissioner Fr. Joaquin Bernas, SJ, questions the Cua ruling in light of Section 7, which says majority of all the Members. He thus concludes that [t]hree is not the majority of seven.[6] Had the framers intended that it should be the majority of the members who participated or deliberated, it would have clearly phrased it that way as it did with respect to the Supreme Court in Section 4(2), Article VIII of the Constitution:

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SECTION 4(2) x x x all other cases which under the Rules of Court are required to be heard en banc, x x x shall be decided with the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon. (Italics in the original; emphasis and underscoring supplied). For the foregoing reasons then, this Court hereby abandons the doctrine laid down in Cua and holds that the COMELEC En Banc shall decide a case or matter brought before it by a majority vote of all its members, and NOT majority of the members who deliberated and voted thereon. WHEREFORE, private respondents motion for reconsideration is hereby DENIED. SO ORDERED. Vitug (Acting Chief Justice), Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Callejo, Sr., Azcuna, and Tinga, JJ., concur. Davide, Jr., C.J., and Puno, J., on official leave. Quisumbing, J., in the result.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 203833

March 19, 2013

MAMERTO T. SEVILLA, vs. COMMISSION ON ELECTIONS and RENATO R. SO, Respondents.

JR.

Petitioner,

RESOLUTION BRION, J.: Before this Court is the petition for certiorari, with prayer for the issuance of a Writ of Preliminary Injunction and/or Status Quo Ante Order,1 filed by petitioner Mamerto T. Sevilla, Jr., to nullify the May 14, 2012 Resolution2 of the Commission on Elections (Comelec) Second Division and the October 6, 2012 Resolution3 of the Comelec en bancin SPR (BRGYSK) No. 70-2011. These assailed Resolutions reversed and set aside the May 4, 2011 Order of the Muntinlupa City Metropolitan Trial Court, Branch 80 (MeTC), dismissing respondent Renato R. So’s election protest against Sevilla. The Facts Sevilla and So were candidates for the position of Punong Barangay of Barangay Sucat, Muntinlupa City during the October 25, 2010 Barangay and Sangguniang Kabataan Elections. On October 26, 2010, the Board of Election Tellers proclaimed Sevilla as the winner with a total of 7,354 votes or a winning margin of 628 votes over So’s 6,726 total votes. On November 4, 2010, So filed an election protest with the MeTC on the ground that Sevilla committed electoral fraud, anomalies and irregularities in all the protested precincts. So pinpointed twenty percent (20%) of the total number of the protested precincts. He also prayed for a manual revision of the ballots.4 Following the recount of the ballots in the pilot protested precincts, the MeTC issued an Order dated May 4, 2011 dismissing the election protest. On May 9, 2011, So filed a motion for reconsideration from the dismissal order instead of a notice of appeal; he also failed to pay the appeal fee within the reglementary period. On May 17, 2011, the MeTC denied the motion for reconsideration on the ground that it was a prohibited pleading pursuant to Section 1, Rule 6 of A.M. No. 07-04-15-SC.5 In response, So filed a petition for certiorari on May 31, 2011 with the Comelec, alleging grave abuse of discretion on the part of the MeTC Judge. So faults the MeTC for its non-observance of the rule that in the appreciation of ballots, there should be a clear and distinct presentation of the specific details of how and why a certain group of ballots should be considered as having been written by one or two persons.6 The Comelec Second Division Ruling In its May 14, 2012 Resolution, the Comelec Second Division granted So’s petition. The Comelec Second Division held that certiorari can be granted despite the availability of appeals when the questioned order amounts to an oppressive exercise of judicial authority, as in the case before it. It also ruled that the assailed Order was fraught with infirmities and irregularities in the appreciation of

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the ballots, and was couched in general terms: "these are not written by one person observing the different strokes, slant, spacing, size and indentation of handwriting and the variance in writing."7 The Comelec En Banc Ruling The Comelec en banc, by a vote of 3-3,8 affirmed the Comelec Second Division’s ruling in its October 6, 2012 Resolution whose dispositive portion reads:

WHEREFORE, premises considered, the Motion for Reconsideration is hereby DENIED for lack of merit. Respondent judge is directed to conduct another revision of the contested ballots in Election Protest Case No. SP-6719 with dispatch.9 It ruled that where the dismissal was capricious, certiorari lies as the petition challenges not the correctness but the validity of the order of dismissal. The Comelec en banc emphasized that procedural technicalities should be disregarded for the immediate and final resolution of election cases inasmuch as ballots should be read and appreciated with utmost liberality so that the will of the electorate in the choice of public officials may not be defeated by technical infirmities. It found that the MeTC Judge committed grave abuse of discretion amounting to lack of jurisdiction when she did not comply with the mandatory requirements of Section 2(d), Rule 14 of A.M. No. 07-415-SC on the form of the decision in election protests involving pairs or groups of ballots written by two persons. It noted that based on the general and repetitive phraseology of the Order, the MeTC Judge’s findings were "copy-pasted" into the decision and ran counter to the mandate of the aforementioned rule. Also, the MeTC Judge failed to mention in her appreciation of the ballots that she examined the Minutes of Voting and Counting to ascertain whether there were illiterate voters or assisted voters in the protested precincts.10 Commissioner Lim’s Dissent 11 The dissent posited that So’s petition should be dismissed outright as it was mired in procedural errors. First, So should have filed an appeal within five (5) days from receipt of the MeTC’s Order; a motion for reconsideration was improper as the Order amounted to the final disposition of the protest. Second, So should not have filed the motion for reconsideration even if he believed that the Order was interlocutory since a motion for reconsideration is a prohibited pleading. Also, he could have simply filed the petition for certiorari without the necessity of filing the motion for reconsideration. Third, the petition for certiorari cannot be a substitute for the lost appeal. The Comelec could not even treat the certiorari as an appeal since the petition was filed 25 days after So received the assailed Order; thus, the Order already attained finality. Finally, procedural rules should not be lightly shunned in favor of liberality when, as in this case, So did not give a valid excuse for his errors. The Petition The Comelec gravely abused its discretion when it gave due course to the petition for certiorari Sevilla argues that the Comelec gravely abused its discretion when it entertained So’s petition despite its loss of jurisdiction to entertain the petition after the court a quo’s dismissal order became final and executory due to So’s wrong choice of remedy. Instead of filing an appeal within five (5) days from receipt of the Order and paying the required appeal fee, So filed a motion for reconsideration – a prohibited pleading that did not stop the running of the prescriptive period to file an appeal. Sevilla also emphasizes that So’s petition for certiorari should not have been given due course since it is not a substitute for an appeal and may only be allowed if there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law.12 The dismissal of the election protest was proper

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Sevilla also contends that the dismissal was not tainted with grave abuse of discretion since the MeTC Judge complied with the rules; she made clear, specific and detailed explanations pertaining to the specific strokes, figures or letters showing that the ballots had been written by one person. Granting that the decision was tainted with errors, certiorari would still not lie because a mere error of judgment is not synonymous with grave abuse of discretion. Lastly, a liberal application of the rules cannot be made to a petition which offers no explanation for the non-observance of the rules.13 On November 13, 2012,14 the Court resolved to require the Comelec and the respondent to comment on the petition and to observe the status quo prevailing before the issuance of the assailed Comelec Second Division’s Resolution of May 14, 2012 and the Comelec en banc’s Resolution of October 6, 2012.15

In his Comment, the respondent contends that the petition was filed prematurely. He emphasizes that the October 6, 2012 Resolution of the Comelec en banc was not a majority decision considering that three Commissioners voted for the denial of the motion for reconsideration and the three others voted to grant the same. So notes that the assailed October 6, 2012 Resolution was deliberated upon only by six (6) Commissioners because the 7th Commissioner had not yet been appointed by the President at that time. Considering that the October 6, 2012 Resolution was not a majority decision by the Comelec en banc, So prays for the dismissal of the petition so that it can be remanded to the Comelec for a rehearing by a full and complete Commission.16 The Court’s Ruling We resolve to DISMISS the petition for having been prematurely filed with this Court, and remand the case to the COMELEC for its appropriate action. The October 6, 2012 Comelec en banc’s Resolution lacks legal effect as it is not a majority decision required by the Constitution and by the Comelec Rules of Procedure Section 7, Article IX-A of the Constitution requires that "each Commission shall decide by a majority vote of all its members, any case or matter brought before it within sixty days from the date of its submission for decision or resolution."17 Pursuant to this Constitutional mandate, the Comelec provided in Section 5(a), Rule 3 of the Comelec Rules of Procedure the votes required for the pronouncement of a decision, resolution, order or ruling when the Comelec sits en banc, viz.:

Section 5. Quorum; Votes Required. - (a) When sitting en banc, four (4) Members of the Commission shall constitute a quorum for the purpose of transacting business. The concurrence of a majority of the Members of the Commission shall be necessary for the pronouncement of a decision, resolution, order or ruling. [italics supplied; emphasis ours] We have previously ruled that a majority vote requires a vote of four members of the Comelec en banc. In Marcoleta v. Commission on Elections,18 we declared "that Section 5(a) of Rule 3 of the Comelec Rules of Procedure and Section 7 of Article IX-A of the Constitution require that a majority vote of all the members of the Comelec en banc, and not only those who participated and took part in the deliberations, is necessary for the pronouncement of a decision, resolution, order or ruling."

In the present case, while the October 6, 2012 Resolution of the Comelec en banc appears to have affirmed the Comelec Second Division’s Resolution and, in effect, denied Sevilla’s motion for reconsideration, the equally divided voting between three Commissioners concurring and three Commissioners dissenting is not the majority vote that the Constitution and the Comelec Rules of Procedure require for a valid pronouncement of the assailed October 6, 2012 Resolution of the Comelec en banc. In essence, based on the 3-3 voting, the Comelec en banc did not sustain the Comelec Second Division’s findings on the basis of the three concurring votes by Commissioners Tagle, Velasco and Yusoph; conversely, it also did not overturn the Comelec Second Division on the basis of the three

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dissenting votes by Chairman Brillantes, Commissioner Sarmiento and Commissioner Lim, as either side was short of one (1) vote to obtain a majority decision. Recall that under Section 7, Article IX-A of the Constitution, a majority vote of all the members of the Commission en banc is necessary to arrive at a ruling. In other words, the vote of four (4) members must always be attained in order to decide, irrespective of the number of Commissioners in attendance. Thus, for all intents and purposes, the assailed October 6, 2012 Resolution of the Comelec en banc had no legal effect whatsoever except to convey that the Comelec failed to reach a decision and that further action is required. The October 6, 2012 Comelec en banc’s Resolution must be reheard pursuant to the Comelec Rules of Procedure To break the legal stalemate in case the opinion is equally divided among the members of the Comelec en banc, Section 6, Rule 18 of the Comelec Rules of Procedure mandates a rehearing where parties are given the opportunity anew to strengthen their respective positions or arguments and convince the members of the Comelec en banc of the merit of their case.19 Section 6, Rule 18 of the Comelec Rules of Procedure reads: Section 6. Procedure if Opinion is Equally Divided. - When the Commission en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the action or proceeding shall be dismissed if originally commenced in the Commission; in appealed cases, the judgment or order appealed from shall stand affirmed; and in all incidental matters, the petition or motion shall be denied. [emphasis ours; italics supplied] In Juliano v. Commission on Elections,20 only three members of the Comelec en banc voted in favor of granting Estrelita Juliano’s motion for reconsideration (from the Decision of the Comelec Second Division dismissing her petition for annulment of proclamation of Muslimin Sema as the duly elected Mayor of Cotabato City), three members dissented, and one member took no part. In ruling that the Comelec acted with grave abuse of discretion when it failed to order a rehearing required by the Comelec Rules of Procedure, the Court ruled:

Section 6, Rule 18 of the Comelec Rules of Procedure specifically states that if the opinion of the Comelec En Banc is equally divided, the case shall be reheard. The Court notes, however, that the Order of the Comelec En Banc dated February 10, 2005 clearly stated that what was conducted was a mere "re-consultation." A "re-consultation" is definitely not the same as a "rehearing." A consultation is a "deliberation of persons on some subject;" hence, a re-consultation means a second deliberation of persons on some subject. Rehearing is defined as a "second consideration of cause for purpose of calling to court’s or administrative board’s attention any error, omission, or oversight in first consideration. A retrial of issues presumes notice to parties entitled thereto and opportunity for them to be heard." (italics supplied). But as held in Samalio v. Court of Appeals, A formal or trial-type hearing is not at all times and in all instances essential.1âwphi1 The requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. Thus, a rehearing clearly presupposes the participation of the opposing parties for the purpose of presenting additional evidence, if any, and further clarifying and amplifying their arguments; whereas, a re-consultation involves a re-evaluation of the issues and arguments already on hand only by the members of the tribunal, without the participation of the parties. In Belac v. Comelec, when the voting of the Comelec En Banc on therein petitioner’s motion for reconsideration was equally divided, the Comelec En Banc first issued an order setting the case for hearing and allowed the parties to submit their respective memoranda before voting anew on therein

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petitioner’s motion for reconsideration. This should have been the proper way for the Comelec En Banc to act on herein petitioner’s motion for reconsideration when the first voting was equally divided. Its own Rules of Procedure calls for a rehearing where the parties would have the opportunity to strengthen their respective positions or arguments and convince the members of the Comelec En Banc of the merit of their case. Thus, when the Comelec En Banc failed to give petitioner the rehearing required by the Comelec Rules of Procedure, said body acted with grave abuse of discretion. 21 (italics supplied; emphases ours)

To the same effect, in Marcoleta v. Commission on Elections,22 the Court ruled that the Comelec en banc did not gravely abuse its discretion when it ordered a rehearing of its November 6, 2007 Resolution for failing to muster the required majority voting. The Court held:

The Comelec, despite the obvious inclination of three commissioners to affirm the Resolution of the First Division, cannot do away with a rehearing since its Rules clearly provide for such a proceeding for the body to have a solicitous review of the controversy before it. A rehearing clearly presupposes the participation of the opposing parties for the purpose of presenting additional evidence, if any, and further clarifying and amplifying their arguments. To reiterate, neither the assenters nor dissenters can claim a majority in the En Banc Resolution of November 6, 2007. The Resolution served no more than a record of voters, lacking in legal effect despite its pronouncement of reversal of the First Division Resolution. According, the Comelec did not commit any grave abuse of discretion in ordering a rehearing.23 (italics supplied; citation omitted) In the present case, it appears from the records that the Comelec en banc did not issue an Order for a rehearing of the case in view of the filing in the interim of the present petition for certiorari by Sevilla. In both the cases of Juliano and Marcoleta, cited above, we remanded the cases to the Comelec en banc for the conduct of the required rehearing pursuant to the Comelec Rules of Procedure. Based on these considerations, we thus find that a remand of this case is necessary for the Comelec en banc to comply with the rehearing requirement of Section 6, Rule 18 of the Comelec Rules of Procedure. WHEREFORE, we hereby DISMISS the petition and REMAND SPR (BR GY-SK) No. 70-2011 to the Comelec en bane for the conduct of the required rehearing under the Comelec Rules of Procedure. The Comelec en bane is hereby ORDERED to proceed with the rehearing with utmost dispatch. No costs. SO ORDERED. ARTURO Associate Justice

D.

BRION

WE CONCUR:

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Republic of the Philippines SUPREME COURT Manila EN BANC

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G.R. No. 192289

January 8, 2013

KAMARUDIN K. IBRAHIM, vs. COMMISSION ON ELECTIONS and ROLAN G. BUAGAS, Respondents.

Petitioner,

DECISION REYES, J.: Before us is a Petition for Certiorari and Prohibition with Prayer for the Issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order1 filed under Rule 64 of the Rules of Court assailing the following resolutions of the public respondent Commission on Elections (COMELEC):

(a) Minute Resolution No. 09-09462 (December 22, 2009 Resolution), dated December 22, 2009, disqualifying the petitioner herein, Kamarudin K. Ibrahim (Ibrahim), from the 2010 Vice-Mayoralty race in Datu Unsay, Maguindanao for supposedly not being a registered voter of the said municipality; and

(b) Resolution3 (May 6, 2010 Resolution) issued on May 6, 2010, relative to SPA Case No. 10-002 (MP) LOCAL, denying Ibrahim’s opposition4 to Resolution No. 090946.

Antecedent Facts On December 1, 2009, Ibrahim filed his certificate of candidacy to run as Vice-Mayor of Datu-Unsay in the May 10, 2010 elections. Thereafter, respondent Rolan G. Buagas (Buagas), then Acting Election Officer in the said municipality, forwarded to the COMELEC’s Law Department (Law Department) the names of 20 candidates who were not registered voters therein. The list5 included Ibrahim’s name, along with those of two candidates for mayor, one for vice-mayor and 16 for councilor.

In a Memorandum6 dated December 10, 2009, the Law Department brought to the attention of the COMELEC en banc the names of 56 candidates runnin g for various posts in Maguindanao and Davao del Sur who were not registered voters of the municipalities where they sought to be elected. The Law Department recommended the retention of the said names in the Certified List of Candidates, but for the COMELEC to motu propio institute actions against them for disqualification and for violation of election laws. Thereafter, the COMELEC en banc issued the herein assailed December 22, 2009 Resolution approving, but with modification, the Law

Department’s recommendation in the following wise: 1. to disqualify the foregoing candidates for not being registered voters of the respective municipalities where they seek to be elected without prejudice to their filing of an opposition within two (2) days from publication hereof; and 2. to file election offense cases against said candidates for violation of Sec. 74 in relation to Sec. 262 of the Omnibus Election Code.7 (Italics ours) On January 8, 2010, Ibrahim and 50 other candidates filed a Petition/Opposition8 to assail the Resolution dated December 22, 2009. In the Petition/Opposition, which was docketed as SPA 10-002 (MP) LOCAL, it was stressed that some of those affected by the Resolution dated December 22, 2009 had participated as candidates in the 2004 and 2007 elections. If indeed they were not registered voters, they shoul d have been disqualified then. Further, it was emphasized that the candidates who filed the Petition/Opposition were permanent residents and were domiciled at the place where they sought to be elected.

The COMELEC en banc denied the Petition/Opposition through the herein assailed Resolution dated May 6, 2010. The COMELEC declared that the Resolution dated December 22, 2009 was anchored on the certification, which was issued by Buagas and Acting Provincial Election Supervisor of Maguindanao, Estelita B. Orbase, stating that Ibrahim, among other candidates, were not registered voters of Datu Unsay, Maguindanao. The certification was issued in the performance of official duty, hence, the presumption of regularity attached to it in the absence of contrary evidence. Ibrahim and company failed to adduce evidence proving their allegations of registration and residence. In the May 10, 2010 elections, during which time the Resolution dated May 6, 2010 had not yet attained finality, Ibrahim obtained 446 votes, the highest number cast for the Vice-Mayoralty race in Datu

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Unsay.9 However, the Municipal Board of Canvassers (MBOC), which was then chaired by Buagas, suspended Ibrahim’s proclamation on the basis of Section 5, Rule 2510 of the COMELEC Rules of Procedure.11

Issue Whether or not the COMELEC en banc acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it issued the Resolutions dated December 22, 2009 and May 6, 2010. Arguments in Support of the Instant Petition Ibrahim posits that the MBOC is a ministerial body created merely "to take the returns as made from the different voting precincts, add them up and declare the result."12 As long as the returns are on their face genuine and are signed by the proper officers, sans indications of being spurious and forged, they cannot be rejected on the ground of alleged questions on the qualifications of voters and the existence of electoral frauds and irregularities. Further, since Ibrahim received the highest number of votes for Vice-Mayor, all possible doubts should be resolved in favor of his eligibility, lest the will of the electorate, which should be the paramount consideration, be defeated.13

In its Manifestation and Motion in Lieu of Comment,14 the Office of the Solicitor General (OSG) proposes for the instant Petition to be granted. The OSG points out that in Cipriano v. Commission on Elections,15 this court nullified, for lack of proper proceedings before their issuance, the resolutions issued by the COMELEC relative to the cancellation of a certificate of candidacy. The OSG emphasizes that similarly, Ibrahim was disqualified as a candidate without prior notice and hearing and he was given the chance to file an opposition only after the issuance of the Resolution dated December 22, 2009.

Further citing Bautista v. Comelec,16 the OSG argues that jurisdiction over petitions to cancel a certificate of candidacy pertains to the COMELEC sitting in division and not to the COMELEC en banc. The COMELEC en banc can only take cognizance of petitions to cancel a certificate of candidacy when the required number of votes for a division to reach a decision, ruling, order or resolution is not obtained, or when motions for reconsideration are filed to assail the said issuances of a division.

The OSG likewise refers to Section 4(B)(3)17 of Resolution No. 869618 to stress that generally, the COMELEC cannot motu propio file petitions for disqualification against candidates. Section 519 of the same resolution, however, provides the only exception to the foregoing, to wit, that certificates of candidacy of those running for the positions of President, Vice-President, Senator and Party-List maybe denied due course and canceled motu propio by the COMELEC based on grounds enumerated therein. While there was a Petition for Disqualification20 filed by Bai Reshal S. Ampatuan against Ibrahim and company, it was not the basis for the COMELEC en banc’s issuance of the Resolutions dated December 22, 2009 and May 6, 2010. Instead, the certification issued by Buagas was the basis for the subsequent actions of the Law Department and the COMELEC en banc leading to the issuance of the herein assailed resolutions.

The OSG also invokes Section 1621 of COMELEC Resolution No. 867822 to assert that the MBOC had no authority to order the suspension of Ibrahim’s proclamation. Upon motion, the suspension of a winning candidate’s proclamation can be ordered during the pendency of a disqualification case before the COMELEC. However, only the COMELEC, as a tribunal, has the authority to issue orders relative to cases pending before it. The MBOC cannot substitute its own judgment for that of the COMELEC’s. The MBOC can suspend a winning candidate’s proclamation only when an actual issue within the Board’s jurisdiction arises in the course of conducting a canvass. The aforementioned issues include the commission of violent and terrorist acts or the occurrence of a calamity at the canvassing site. Absent any determination of irregularity in the election returns, as well as an order enjoining the canvassing and proclamation of the winner, it is a mandatory and ministerial duty of the MBOC concerned to count the votes based on such returns and declare the result.23

It is also the OSG’s position that Section 5, Rule 2524 of the COMELEC Rules of Procedure was irregularly worded for using the word "shall" when Section 625 of Republic Act (R.A.) No. 6646,26 which the rules seek to implement, merely employed the word "may". The use of the word "may" indicates that the suspension of a proclamation is merely directory and permissive in nature and operates to confer discretion.27

The COMELEC’s Contentions In the Compliance28 filed with the court, the COMELEC assails as improper Ibrahim’s immediate resort to the instant Petition for Certiorari under Rule 64 of the Rules of Court. Despite the issuance of the herein assailed resolutions, Ibrahim’s name was not stricken off from the certified list of candidates during the May 10, 2010 elections and the votes cast for him were counted. Hence, no actual prejudice was caused upon him as the COMELEC did not even direct the MBOC to suspend his proclamation. It was the MBOC’s ruling which resulted to the suspension of his proclamation. Such being the case, Ibrahim should have instead filed a pre-proclamation controversy before the COMELEC anchored on the supposed illegality of the MBOC’s proceedings. Section 241 of Batas Pambansa Blg. 881 (BP 881), otherwise known as the Omnibus Election Code (OEC), defines pre-proclamation controversies as referring to any questions "pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised xxx in relation to the preparation, transmission, receipt, custody and appreciation of the election returns." Had Ibrahim instituted instead a pre-proclamation controversy, the COMELEC could have corrected the MBOC’s ruling, if indeed, it was erroneous.

The COMELEC further argues that Ibrahim was not denied due process as he and the other candidates referred to in the Resolutions dated December 22, 2009 and May 6, 2010 were given the

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opportunity to file their opposition. Ibrahim did file his Petition/Opposition and sought reliefs from the COMELEC en banc. Now, he should not be allowed to repudiate the proceedings merely because the result was adverse to him. Moreover, the OSG’s invocation of the doctrines enunciated in Bautista v. Comelec29 is misplaced because in the said case, there was a total absence of notice and hearing. The COMELEC emphasizes that Ibrahim was undeniably not a registered voter in Datu Unsay when he ran as Vice-Mayor in the May 10, 2010 elections. He cannot possess any mandate to serve as an elected official as by his act and willful misrepresentations, he had deceived the electorate. Our Ruling We grant the instant Petition. Before resolving the merits of the petition, the court shall first dispose of the procedural issue raised by the COMELEC. Ibrahim properly resorted to the instant Petition filed under Rule 64 of the Rules of Court to assail the Resolutions dated December 22, 2009 and May 6, 2010 of the COMELEC en banc. The COMELEC seeks the dismissal of the instant Petition on the basis of a technical ground, to wit, that Ibrahim’s resort to a petition for certiorari filed under Rule 64 of the Rules of Court to challenge the Resolutions dated December 22, 2009 and May 6, 2010 is improper. Ibrahim should have instead filed before the COMELEC a pre-proclamation controversy to allow the latter to correct the MBOC’s ruling if it was indeed erroneous. The claim fails to persuade. Section 7, Article IX of the 1987 Constitution in part substantially provides that any decision, order or ruling of any of the Constitutional Commissions may be brought for review to the Supreme Court on certiorari within 30 days from receipt of a copy thereof. The orders, ruling and decisions rendered or issued by the COMELEC en banc must be final and made in the exercise of its adjudicatory or quasijudicial power.30 Further, Section 1, Rule 64 of the Rules of Court states that it shall govern the review of final judgments and orders or resolutions of the COMELEC and the Commission on Audit.

A pre-proclamation controversy is defined in Section 241 of the OEC as referring to "any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of parties before the board or directly with the Commission, or any matter raised under Sections 233,31 234,32 23533 and 23634 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns." Section 243 of the OEC restrictively enumerates as follows the issues which can be raised in a pre-proclamation controversy:

(a) Illegal composition or proceedings of the board of canvassers; (b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code; (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and (d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. The illegality of the proceedings of the board of canvassers is the first issue which may be raised in a pre-proclamation controversy. To illustrate, the proceedings are to be considered as illegal when the

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board is constituted not in accordance with law, or is composed of members not enumerated therein, or when business is transacted sans a quorum. In the case at bar, the now assailed Resolutions dated December 22, 2009 and May 6, 2010 were issued with finality by the COMELEC en banc. Under the Constitution and the Rules of Court, the said resolutions can be reviewed by way of filing before us a petition for certiorari. Besides, the issues raised do not at all relate to alleged irregularities in the preparation, transmission, receipt, custody and appreciation of the election returns or to the composition and proceedings of the board of canvassers. What the instant Petition challenges is the authority of the MBOC to suspend Ibrahim’s proclamation and of the COMELEC en banc to issue the assailed resolutions. The crux of the instant Petition does not qualify as one which can be raised as a pre-proclamation controversy. The COMELEC en banc is devoid of authority to disqualify Ibrahim as a candidate for the position of Vice-Mayor of Datu Unsay. Section 3(C), Article IX of the 1987 Constitution explicitly provides: Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. (Italics ours) Further, the circumstances obtaining in Bautista v. Comelec35 cited by the OSG in its Manifestation are similar to those attendant to the instant Petition. In Bautista, the election officer reported to the Law Department that Bautista was ineligible to run as a candidate by reason of his being an unregistered voter. The Law Department recommended to the COMELEC en banc to deny due course or cancel Bautista’s certificate of candidacy. The COMELEC en banc adopted the recommendation and consequently issued a resolution. In the said case, this Court discussed the COMELEC en banc’s jurisdiction over petitions for disqualification, for denial of due course, or cancellation of certificates of candidacy in the following wise:

In Garvida v. Sales, Jr., the Court held that it is the COMELEC sitting in division and not the COMELEC en banc which has jurisdiction over petitions to cancel a certificate of candidacy. The Court held: The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due course to or cancel a certificate of candidacy, viz: "Sec.78. Petition to deny due course to or cancel a certificate of candidacy.1âwphi1 A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before election." In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny due course to or cancel a certificate of candidacy for an elective office may be filed with the Law Department of the COMELEC on the ground that the candidate has made a false material representation in his certificate. The petition may be heard and evidence received by any official designated by the COMELEC after which the case shall be decided by the COMELEC itself. Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of candidacy lies with the COMELEC sitting in Division, not en banc. Cases before a Division may only be entertained by the COMELEC en banc when the required number of votes to reach a decision, resolution, order or ruling is not obtained in the Division. Moreover, only motions to reconsider decisions, resolutions, orders or rulings of the COMELEC in Division are resolved by the COMELEC en banc. xxxx

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Under Section 3, Rule 23 of the 1993 COMELEC Rules of Procedure, a petition for the denial or cancellation of a certificate of candidacy must be heard summarily after due notice. It is thus clear that cancellation proceedings involve the exercise of the quasi-judicial functions of the COMELEC which the COMELEC in division should first decide. More so in this case where the cancellation proceedings originated not from a petition but from a report of the election officer regarding the lack of qualification of the candidate in the barangay election. The COMELEC en banc cannot short cut the proceedings by acting on the case without a prior action by a division because it denies due process to the candidate.36 (Citation omitted and italics ours) In the case at bar, the COMELEC en banc, through the herein assailed resolutions, ordered Ibrahim’s disqualification even when no complaint or petition was filed against him yet. Let it be stressed that if filed before the conduct of the elections, a petition to deny due course or cancel a certificate of candidacy under Section 78 of the OEC is the appropriate petition which should have been instituted against Ibrahim considering that his allegedly being an unregistered voter of Datu Unsay disqualified him from running as Vice-Mayor. His supposed misrepresentation as an eligible candidate was an act falling within the purview of Section 78 of the OEC. Moreover, even if we were to assume that a proper petition had been filed, the COMELEC en banc still acted with grave abuse of discretion when it took cognizance of a matter, which by both constitutional prescription and jurisprudential declaration, instead aptly pertains to one of its divisions. Ibrahim is not estopped from challenging the COMELEC en banc’s jurisdiction to issue the assailed resolutions. In Republic v. Bantigue Point Development Corporation,37 we stated: The rule is settled that lack of jurisdiction over the subject matter may be raised at any stage of the proceedings. Jurisdiction over the subject matter is conferred only by the Constitution or the law. It cannot be acquired through a waiver or enlarged by the omission of the parties or conferred by the acquiescence of the court. Consequently, questions of jurisdiction may be cognizable even if raised for the first time on appeal. The ruling of the Court of Appeals that "a party may be estopped from raising such jurisdictional question if he has actively taken part in the very proceeding which he questions, belatedly objecting to the court’s jurisdiction in the event that the judgment or order subsequently rendered is adverse to him" is based on the doctrine of estoppel by laches. We are aware of that doctrine first enunciated by this Court in Tijam v. Sibonghanoy. In Tijam, the party-litigant actively participated in the proceedings before the lower court and filed pleadings therein. Only 15 years thereafter, and after receiving an adverse Decision on the merits from the appellate court, did the party-litigant question the lower court’s jurisdiction. Considering the unique facts in that case, we held that estoppel by laches had already precluded the party-litigant from raising the question of lack of jurisdiction on appeal. In Figueroa v. People, we cautioned that Tijam must be construed as an exception to the general rule and applied only in the most exceptional cases whose factual milieu is similar to that in the latter case.38 (Citations omitted and italics ours)

As enunciated above, estoppel by laches can only be invoked in exceptional cases with factual circumstances similar to those in Tijam.39 In the case now before us, the assailed resolutions were issued on December 22, 2009 and May 6, 2010. The instant Petition, which now raises, among others, the issue of the COMELEC en banc’s jurisdiction, was filed on June 3, 2010. With the prompt filing of the instant Petition, Ibrahim can hardly be considered as guilty of laches.

Ibrahim was not denied due process. Interminably, we have declared that deprivation of due process cannot be successfully invoked where a party was given the chance to be heard on his motion for reconsideration.40

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In the case before us, Ibrahim was afforded the chance to file an opposition to the assailed resolutions. Nonetheless, even if due process was substantially observed, the assailed resolutions remain null and void for want of authority on the part of the COMELEC en banc to take cognizance of a matter which should have instead been referred to one of its divisions. The MBOC has no authority to suspend Ibrahim’s proclamation especially since the herein assailed resolutions, upon which the suspension was anchored, were issued by the COMELEC en banc outside the ambit of its jurisdiction. Mastura v. COMELEC41 is emphatic that: (T)he board of canvassers is a ministerial body. It is enjoined by law to canvass all votes on election returns submitted to it in due form. It has been said, and properly, that its powers are limited generally to the mechanical or mathematical function of ascertaining and declaring the apparent result of the election by adding or compiling the votes cast for each candidate as shown on the face of the returns before them, and then declaring or certifying the result so ascertained. x x x.42 (Italics ours) The simple purpose and duty of the canvassing board is to ascertain and declare the apparent result of the voting while all other questions are to be tried before the court or other tribunal for contesting elections or in quo warranto proceedings.43 In the case at bar, the MBOC motu propio suspended Ibrahim’s proclamation when the issue of the latter’s eligibility is a matter which the board has no authority to resolve. Further, under Section 6 44 of R.A. 6646, the COMELEC and not the MBOC has the authority to order the suspension of a winning candidates’s proclamation. Such suspension can only be ordered upon the motion of a complainant or intervenor relative to a case for disqualification, or a petition to deny due course or cancel a certificate of candidacy pending before the COMELEC, and only when the evidence of the winning candidate’s guilt is strong. Besides, the COMELEC en banc itself could not have properly ordered Ibrahim’s disqualification because in taking cognizance of the matter, it had already exceeded its jurisdiction.

WHEREFORE, IN VIEW OF THE FOREGOING, the instant petition is GRANTED. The December 22, 2009 and May 6, 2010 Resolutions issued by the COMELEC en banc is ANNULLED and SET ASIDE. Consequently, the suspension by the MBOC of Ibrahim’s proclamation on the basis of the herein assailed resolutions is likewise ANNULLED and SET ASIDE. In the absence of a judgment, order or resolution relative to another action or petition finally disqualifying Ibrahim, denying due course or cancelling his certificate of candidacy, the MBOC of Datu Unsay is directed to convene within ten (10) days from receipt hereof and to proclaim Ibrahim as the duly-elected Vice-Mayor of the said municipality. SO ORDERED. BIENVENIDO Associate Justice

L.

REYES

WE CONCUR:

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EN BANC [G.R. No. 155717. October 23, 2003]

ALBERTO JARAMILLA, petitioner, vs. COMMISSION ON ELECTIONS, ANTONIO SUYAT, MUNICIPAL BOARD OF CANVASSERS OF STA. CRUZ, ILOCOS SUR, THE NEW MUNICIPAL BOARD OF CANVASSERS (COMELEC), AND IRENEO CORTEZ, respondents. DECISION AZCUNA, J.:

For review before the Court is the instant petition for certiorari[1] with prayer for temporary restraining order and en banc resolution dated October 24, 2002. preliminary injunction ascribing grave abuse of discretion to public respondent Commission on Elections (COMELEC) in issuing its

The antecedent facts, as summarized in the COMELEC resolution,[2] are as follows: [Respondent] Antonio Suyat and [petitioner] Alberto J. Jaramilla both ran for the position of Member of the Sangguniang Bayan in the Municipality of Sta. Cruz, Ilocos Sur in the May 14, 2001 elections. On May 16, 2001, the Municipal Board of Canvassers of Sta. Cruz, proclaimed the winning candidates for the offices of Mayor, Vice-Mayor and eight (8) members of the Sangguniang Bayan. The Certificate of Canvass of Votes and Proclamation shows the following results and ranking with respect to the members of the Sangguniang Bayan, to wit: Name of Candidates Total Votes Obtained 1. RAGUCOS, Ma. Luisa Laxamana 6,324 2. ABAYA, Juan Jr., Andaquig 6,013 3. GINES, Fidel Cudiamat 5,789 4. QUILOP, Renato Avila 5,227 5. BILIGAN, Osias Depdepen 5,130 6. RUIZ, Agustin Turgano 4,972 7. JARAMILLA, Alberto Jimeno 4,815 8. CORTEZ, Ireneo Habon 4,807 In the tabulated results issued by the Election Officer and Chairperson of the Municipal Board of Canvassers of Sta. Cruz, it is shown that [respondent Suyat] obtained Four thousand seven hundred seventy nine (4,779) votes and was ranked no. 9. Upon review by [respondent Suyat], he discovered that [petitioner] was credited with only twenty three (23) votes per Election Return from Precinct No. 34A1. However, when the figures were forwarded to the Statement of Votes by Precinct, [petitioner] was credited with seventy three (73) votes for Precinct No. 34A1 or fifty (50)

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votes more than what he actually obtained. If the entry were to be corrected, the affected candidates would be ranked as follows: 7. CORTEZ, Ireneo Habon 4,807 8. SUYAT, Antonio 4,779 9. JARAMILLA, Alberto 4,765

On June 13, 2001, respondent Suyat filed before the COMELEC en banc an Urgent Motion for Issuance of Order to Reconvene,[3] which the latter treated as a Petition for Correction of Manifest Error. Petitioner countered in his Answer[4] that said petition should be dismissed for having been filed out of time and for lack of the required certification of non-forum shopping.

On October 24, 2002, COMELEC en banc issued the assailed resolution, the dispositive portion of which reads:[5] WHEREFORE, premises considered, the Motion/Petition is hereby GRANTED. The proclamation of Respondent ALBERTO J. JARAMILLA [herein petitioner] is ANNULLED. A New Municipal Board of Canvassers is hereby created composed of the following: Atty. NELIA AUREUS Chairman Atty. MICHAEL D. DIONEDA Vice Chairman Atty. ALLEN FRANCIS F. ABAYA Member The New Board is hereby directed to immediately convene at the Comelec Session Hall, Intramuros, Manila, after due notice to parties and effect a correction in the entry in the Statement of Votes by Precinct particularly the votes for Respondent Alberto Jaramilla [herein petitioner], who should be credited with twenty three (23) votes only. Thereafter, the New Board shall prepare a corrected Certificate of Canvass and Proclamation on the basis of the New Statement of Votes and proclaim the Petitioner [herein private respondent Suyat] as the eighth (8th) Board Member of Sta. Cruz, Ilocos Sur. Mr. Ireneo Habon Cortez shall be declared the 7th Municipal Board Member. The New Board shall use the Comelec copies of the election returns and Statement of Votes pertaining to the instant case. SO ORDERED.

Hence the present recourse by petitioner anchored on the following grounds: I. THAT THE COMMISSION ON ELECTION ERRED IN NOT DISMISSING THE CASE CONSIDERING THAT THE PETITION FILED BEFORE THE COMELEC WAS FILED BEYOND THE PRESCRIPTIVE PERIOD AS SET FORTH IN THE COMELEC RULES OF PROCEDURE. II. THAT THE COMMISSION ON ELECTION ERRED IN GIVING DUE COURSE TO THE PETITION INSTEAD OF DISMISSING IT CONSIDERING THAT THE PETITION LACKED A CERTIFICATION AGAINST FORUM-SHOPPING. III. THAT THE COMMISSION ON ELECTION ERRED IN NOT DISMISSING THE CASE FOR FAILURE TO PAY THE DOCKET OR FILING FEE ON TIME.[6]

Before discussing the merits, although not raised in the petition, the Court deems it appropriate to discuss the jurisdiction of the COMELEC en banc in election cases. Article IX-C of the Constitution states in part that: 249 of 283

Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.[7]

As stated in the provision, and in line with the Courts recent pronouncement in Milla v. Balmores-Laxa,[8] election cases including pre-proclamation controversies should first be heard and decided by a division of the COMELEC, and then by the commission en banc if a motion for reconsideration of the division is filed. It must be noted however that this provision applies only in cases where the COMELEC exercises its adjudicatory or quasi-judicial powers, and not when it merely exercises purely administrative functions. This doctrine was laid out in Castromayor v. COMELEC,[9] and reiterated in subsequent cases.[10] Accordingly, when the case demands only the exercise by the COMELEC of its administrative functions, such as the correction of a manifest mistake in the addition of votes or an erroneous tabulation in the statement of votes, the COMELEC en banc can directly act on it in the exercise of its constitutional function to decide questions affecting elections.[11] The Petition for Correction of Manifest Errors in the case at bar alleges an erroneous copying of figures from the election return to the Statement of Votes by Precinct. Such an error in the tabulation of the results, which merely requires a clerical correction without the necessity of opening ballot boxes or examining ballots, demands only the exercise of the administrative power of the COMELEC. Hence, the Commission en banc properly assumed original jurisdiction over the aforesaid petition. Now we proceed to the merits of the case. Petitioner bewails the fact that the COMELEC took cognizance of respondent Suyats petition for correction despite its having been filed beyond the 5-day reglementary period fixed in the COMELEC Rules of Procedure and its lack of certification against forumshopping.[12] Petitioner overlooks the fact that the COMELEC has the discretion to suspend its rules or any portion thereof in the interest of justice. Section 4, Rule 1 of the COMELEC Rules expressly provides that: SEC. 4. Suspension of the Rules In the interest of justice and in order to obtain speedy disposition of all matters pending before the commission, these rules or any portion thereof may be suspended by the Commission.

The COMELEC therefore has authority to suspend the reglementary periods provided by the rules, or the requirement of certification of non-forum shopping for that matter, in the interest of justice and speedy resolution of the cases before it.[13] Petitioner next points out respondent Suyats omission to pay the prescribed filing fees. As correctly pointed out by the Office of the Solicitor General, the COMELEC is not constrained to dismiss a case before it by reason of non-payment of filing fees.[14] Section 18, Rule 40 the COMELEC Rules of Procedure states:

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SEC 18. Nonpayment of Prescribed Fees If the fees above prescribed are not paid, the Commission may refuse to take action thereon until they are paid and may dismiss the action or the proceeding.[15]

The use of the word may in the aforecited provision readily shows that the COMELEC is conferred the discretion whether to entertain the petition or not in case of non-payment of legal fees.[16] And even if it were not afforded such discretion, as discussed above, it is authorized to suspend its rules or any portion thereof in the interest of justice.[17] It is noteworthy that petitioner only raised issues on the foregoing technicalities, without questioning the COMELECs finding of manifest error in the tabulation of votes. Even at the COMELEC stage, his denial in his Answer[18] was unsubstantiated by any rebuttal evidence to disprove the submitted photocopies of the election returns and statement of votes, which clearly showed the erroneous addition of 50 votes in his favor. The COMELECs unquestioned findings of fact are therefore sustained. The Court reiterates that factual findings of the COMELEC based on its own assessments and duly supported by evidence, are given conclusive weight in the absence of arbitrariness or grave abuse of discretion.[19]

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.[20]Adherence to technicality that would put a stamp on a palpably void proclamation, with the inevitable result of frustrating the peoples will, can never be countenanced.[21] WHEREFORE, finding no grave abuse of discretion committed by public respondent COMELEC, its Resolution en banc dated October 24, 2002 is AFFIRMED. The petition is DISMISSED. No pronouncement as to costs. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Tinga, JJ., concur. Ynares-Santiago, J., on official leave.

3. Voters

EN BANC [G.R. No. 157013. July 10, 2003]

ATTY. ROMULO B. MACALINTAL, petitioner, vs. COMMISSION ON ELECTIONS, HON. ALBERTO ROMULO, in his official capacity as Executive Secretary, and HON. EMILIA T. BONCODIN, Secretary of the Department of Budget and Management, respondents. DECISION AUSTRIA-MARTINEZ, J.:

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Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal, a member of the Philippine Bar, seeking a declaration that certain provisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of 2003)[1] suffer from constitutional infirmity. Claiming that he has actual and material legal interest in the subject matter of this case in seeing to it that public funds are properly and lawfully used and appropriated, petitioner filed the instant petition as a taxpayer and as a lawyer.

The Court upholds the right of petitioner to file the present petition. R.A. No. 9189, entitled, An Act Providing for A System of Overseas Absentee Voting by Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other Purposes, appropriates funds under Section 29 thereof which provides that a supplemental budget on the General Appropriations Act of the year of its enactment into law shall provide for the necessary amount to carry out its provisions. Taxpayers, such as herein petitioner, have the right to restrain officials from wasting public funds through the enforcement of an unconstitutional statute.[2] The Court has held that they may assail the validity of a law appropriating public funds[3] because expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds.[4]

The challenged provision of law involves a public right that affects a great number of citizens. The Court has adopted the policy of taking jurisdiction over cases whenever the petitioner has seriously and convincingly presented an issue of transcendental significance to the Filipino people. This has been explicitly pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan,[5] where the Court held: Objections to taxpayers suit for lack of sufficient personality standing, or interest are, however, in the main procedural matters. Considering the importance to the public of the cases at bar, and in keeping with the Courts duty, under the 1987 Constitution, to determine whether or not the other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of these petitions.[6] Indeed, in this case, the Court may set aside procedural rules as the constitutional right of suffrage of a considerable number of Filipinos is involved. The question of propriety of the instant petition which may appear to be visited by the vice of prematurity as there are no ongoing proceedings in any tribunal, board or before a government official exercising judicial, quasi-judicial or ministerial functions as required by Rule 65 of the Rules of Court, dims in light of the importance of the constitutional issues raised by the petitioner. In Taada vs. Angara,[7] the Court held: In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. The question thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld. Once a controversy as to the application or interpretation of constitutional provision is raised before this Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional mandate to decide. 252 of 283

In another case of paramount impact to the Filipino people, it has been expressed that it is illogical to await the adverse consequences of the law in order to consider the controversy actual and ripe for judicial resolution.[8] In yet another case, the Court said that: . . . despite the inhibitions pressing upon the Court when confronted with constitutional issues, it will not hesitate to declare a law or act invalid when it is convinced that this must be done. In arriving at this conclusion, its only criterion will be the Constitution and God as its conscience gives it in the light to probe its meaning and discover its purpose. Personal motives and political considerations are irrelevancies that cannot influence its decisions. Blandishment is as ineffectual as intimidation, for all the awesome power of the Congress and Executive, the Court will not hesitate to make the hammer fall heavily, where the acts of these departments, or of any official, betray the peoples will as expressed in the Constitution . . .[9] The need to consider the constitutional issues raised before the Court is further buttressed by the fact that it is now more than fifteen years since the ratification of the 1987 Constitution requiring Congress to provide a system for absentee voting by qualified Filipinos abroad. Thus, strong reasons of public policy demand that the Court resolves the instant petition[10] and determine whether Congress has acted within the limits of the Constitution or if it had gravely abused the discretion entrusted to it.[11] The petitioner raises three principal questions: A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are immigrants or permanent residents in other countries by their mere act of executing an affidavit expressing their intention to return to the Philippines, violate the residency requirement in Section 1 of Article V of the Constitution? B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the winning candidates for national offices and party list representatives including the President and the Vice-President violate the constitutional mandate under Section 4, Article VII of the Constitution that the winning candidates for President and the VicePresident shall be proclaimed as winners by Congress? C. May Congress, through the Joint Congressional Oversight Committee created in Section 25 of Rep. Act No. 9189, exercise the power to review, revise, amend, and approve the Implementing Rules and Regulations that the Commission on Elections shall promulgate without violating the independence of the COMELEC under Section 1, Article IX-A of the Constitution? The Court will resolve the questions in seriatim. A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987 Constitution of the Republic of the Philippines? Section 5(d) provides: Sec. 5. Disqualifications. The following shall be disqualified from voting under this Act: ......... 253 of 283

d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of the 1987 Constitution which requires that the voter must be a resident in the Philippines for at least one year and in the place where he proposes to vote for at least six months immediately preceding an election. Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals[12]to support his claim. In that case, the Court held that a green card holder immigrant to the United States is deemed to have abandoned his domicile and residence in the Philippines.

Petitioner further argues that Section 1, Article V of the Constitution does not allow provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise;[13] that the legislature should not be allowed to circumvent the requirement of the Constitution on the right of suffrage by providing a condition thereon which in effect amends or alters the aforesaid residence requirement to qualify a Filipino abroad to vote.[14] He claims that the right of suffrage should not be granted to anyone who, on the date of the election, does not possess the qualifications provided for by Section 1, Article V of the Constitution.

Respondent COMELEC refrained from commenting on this issue.[15]

In compliance with the Resolution of the Court, the Solicitor General filed his comment for all public respondents. He contraposes that the constitutional challenge to Section 5(d) must fail because of the absence of clear and unmistakable showing that said provision of law is repugnant to the Constitution. He stresses: All laws are presumed to be constitutional; by the doctrine of separation of powers, a department of government owes a becoming respect for the acts of the other two departments; all laws are presumed to have adhered to constitutional limitations; the legislature intended to enact a valid, sensible, and just law. In addition, the Solicitor General points out that Section 1, Article V of the Constitution is a verbatim reproduction of those provided for in the 1935 and the 1973 Constitutions. Thus, he cites Co vs. Electoral Tribunal of the House of Representatives[16] wherein the Court held that the term residence has been understood to be synonymous with domicile under both Constitutions. He further argues that a person can have only one domicile but he can have two residences, one permanent (the

residence likewise applies to absentee voters. Invoking Romualdez-Marcos vs. COMELEC[18] which reiterates the Courts ruling in Faypon vs. Quirino,[19] the Solicitor domicile) and the other temporary;[17] and that the definition and meaning given to the term

General maintains that Filipinos who are immigrants or permanent residents abroad may have in fact never abandoned their Philippine domicile.[20]

Taking issue with the petitioners contention that green card holders are considered to have abandoned their Philippine domicile, the Solicitor General suggests that the Court may have to discard its ruling in Caasi vs. Court of Appeals[21] in so far as it relates to immigrants and permanent residents in foreign countries who have executed and submitted their affidavits conformably with Section 5(d) of R.A. No. 9189. He maintains that through the execution of the requisite affidavits, the Congress of the Philippines with 254 of 283

the concurrence of the President of the Republic had in fact given these immigrants and permanent residents the opportunity, pursuant to Section 2, Article V of the Constitution, to manifest that they had in fact never abandoned their Philippine domicile; that indubitably, they would have formally and categorically expressed the requisite intentions, i.e., animus manendi and animus revertendi; that Filipino immigrants and permanent residents abroad possess the unquestionable right to exercise the right of suffrage under Section 1, Article V of the Constitution upon approval of their registration, conformably with R.A. No. 9189.[22] The seed of the present controversy is the interpretation that is given to the phrase, qualified citizens of the Philippines abroad as it appears in R.A. No. 9189, to wit: SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a system of honest and orderly overseas absentee voting that upholds the secrecy and sanctity of the ballot. Towards this end, the State ensures equal opportunity to all qualified citizens of the Philippines abroad in the exercise of this fundamental right. SEC. 3. Definition of Terms. For purposes of this Act: a) Absentee Voting refers to the process by which qualified citizens of the Philippines abroad, exercise their right to vote; . . . (Emphasis supplied) f) Overseas Absentee Voter refers to a citizen of the Philippines who is qualified to register and vote under this Act, not otherwise disqualified by law, who is abroad on the day of elections. (Emphasis supplied) SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vicepresident, senators and party-list representatives. (Emphasis supplied) in relation to Sections 1 and 2, Article V of the Constitution which read: SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. . . . . . . . . . (Emphasis supplied) Section 1, Article V of the Constitution specifically provides that suffrage may be exercised by (1) all citizens of the Philippines, (2) not otherwise disqualified by law, (3) at least eighteen years of age, (4) who are residents in the Philippines for at least one year and in the place where they propose to vote for at least six months immediately preceding 255 of 283

the election. Under Section 5(d) of R.A. No. 9189, one of those disqualified from voting is an immigrant or permanent resident who is recognized as such in the host country unless he/she executes an affidavit declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three years from approval of his/her registration under said Act. Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the Filipinos abroad who are immigrants or permanent residents, to vote. He focuses solely on Section 1, Article V of the Constitution in ascribing constitutional infirmity to Section 5(d) of R.A. No. 9189, totally ignoring the provisions of Section 2 empowering Congress to provide a system for absentee voting by qualified Filipinos abroad. A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression that it contravenes Section 1, Article V of the Constitution. Filipino immigrants and permanent residents overseas are perceived as having left and abandoned the Philippines to live permanently in their host countries and therefore, a provision in the law enfranchising those who do not possess the residency requirement of the Constitution by the mere act of executing an affidavit expressing their intent to return to the Philippines within a given period, risks a declaration of unconstitutionality. However, the risk is more apparent than real. The Constitution is the fundamental and paramount law of the nation to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered.[23] Laws that do not conform to the Constitution shall be stricken down for being unconstitutional. Generally, however, all laws are presumed to be constitutional. In Peralta vs. COMELEC, the Court said: . . . An act of the legislature, approved by the executive, is presumed to be within constitutional limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the legislature as well. The question of the validity of every statute is first determined by the legislative department of the government itself.[24] Thus, presumption of constitutionality of a law must be overcome convincingly: . . . To declare a law unconstitutional, the repugnancy of that law to the Constitution must be clear and unequivocal, for even if a law is aimed at the attainment of some public good, no infringement of constitutional rights is allowed. To strike down a law there must be a clear showing that what the fundamental law condemns or prohibits, the statute allows it to be done.[25] As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court to take a holistic view of the pertinent provisions of both the Constitution and R.A. No. 9189. It is a basic rule in constitutional construction that the Constitution should be construed as a whole. In Chiongbian vs. De Leon,[26] the Court held that a constitutional provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document. Constitutional provisions are mandatory in character unless, either by express statement or by necessary implication, a different intention is manifest.[27] The intent of the Constitution may be drawn primarily from the language of the document itself. Should it be ambiguous, the Court may consider the intent of its framers through their debates in the constitutional convention.[28]

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R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V of the Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It must be stressed that Section 2 does not provide for the parameters of the exercise of legislative authority in enacting said law. Hence, in the absence of restrictions, Congress is presumed to have duly exercised its function as defined in Article VI (The Legislative Department) of the Constitution. To put matters in their right perspective, it is necessary to dwell first on the significance of absentee voting. The concept of absentee voting is relatively new. It is viewed thus: The method of absentee voting has been said to be completely separable and distinct from the regular system of voting, and to be a new and different manner of voting from that previously known, and an exception to the customary and usual manner of voting. The right of absentee and disabled voters to cast their ballots at an election is purely statutory; absentee voting was unknown to, and not recognized at, the common law. Absentee voting is an outgrowth of modern social and economic conditions devised to accommodate those engaged in military or civil life whose duties make it impracticable for them to attend their polling places on the day of election, and the privilege of absentee voting may flow from constitutional provisions or be conferred by statutes, existing in some jurisdictions, which provide in varying terms for the casting and reception of ballots by soldiers and sailors or other qualified voters absent on election day from the district or precinct of their residence. Such statutes are regarded as conferring a privilege and not a right, or an absolute right. When the legislature chooses to grant the right by statute, it must operate with equality among all the class to which it is granted; but statutes of this nature may be limited in their application to particular types of elections. The statutes should be construed in the light of any constitutional provisions affecting registration and elections, and with due regard to their texts prior to amendment and to predecessor statutes and the decisions thereunder; they should also be construed in the light of the circumstances under which they were enacted; and so as to carry out the objects thereof, if this can be done without doing violence to their provisions and mandates. Further, in passing on statutes regulating absentee voting, the court should look to the whole and every part of the election laws, the intent of the entire plan, and reasons and spirit of their adoption, and try to give effect to every portion thereof.[29] (Emphasis supplied) Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a resident and an absentee.[30] However, under our election laws and the countless pronouncements of the Court pertaining to elections, an absentee remains attached to his residence in the Philippines as residence is considered synonymous with domicile. In Romualdez-Marcos,[31] the Court enunciated: Article 50 of the Civil Code decrees that [f]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is their place of habitual residence. In Ong vs. Republic, this court took the concept of domicile to mean an individuals permanent home, a place 257 of 283

to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent. Based on the foregoing, domicile includes the twin elements of the fact of residing or physical presence in a fixed place and animus manendi, or the intention of returning there permanently. Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a given area, community or country. The essential distinction between residence and domicile in law is that residence involves the intent to leave when the purpose for which the resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a persons intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established it is residence. It is thus, quite perfectly normal for an individual to have different residences in various places. However, a person can only have a single domicile, unless, for various reasons, he successfully abandons his domicile in favor of another domicile of choice. In Uytengsu vs. Republic, we laid this distinction quite clearly: There is a difference between domicile and residence. Residence is used to indicate a place of abode, whether permanent or temporary; domicile denotes a fixed permanent residence to which, when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for the same purpose at any time, but he may have numerous places of residence. His place of residence is generally his place of domicile, but it is not by any means necessarily so since no length of residence without intention of remaining will constitute domicile. For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with domicile.[32] (Emphasis supplied) Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the framers of the Constitution considered the circumstances that impelled them to require Congress to establish a system for overseas absentee voting, thus: MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which here has a residential restriction, is not denied to citizens temporarily residing or working abroad. Based on the statistics of several government agencies, there ought to be about two million such Filipinos at this time. Commissioner Bernas had earlier pointed out that these provisions are really lifted from the two previous Constitutions of 1935 and 1973, with the exception of the last paragraph. They could not therefore have foreseen at that time the phenomenon now described as the Filipino labor force explosion overseas. According to government data, there are now about 600,000 contract workers and employees, and although the major portions of these expatriate communities of workers are to be found in the Middle East, they are scattered in 177 countries in the world.

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In a previous hearing of the Committee on Constitutional Commissions and Agencies, the Chairman of the Commission on Elections, Ramon Felipe, said that there was no insuperable obstacle to making effective the right of suffrage for Filipinos overseas. Those who have adhered to their Filipino citizenship notwithstanding strong temptations are exposed to embrace a more convenient foreign citizenship. And those who on their own or under pressure of economic necessity here, find that they have to detach themselves from their families to work in other countries with definite tenures of employment. Many of them are on contract employment for one, two, or three years. They have no intention of changing their residence on a permanent basis, but are technically disqualified from exercising the right of suffrage in their countries of destination by the residential requirement in Section 1 which says: Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election. I, therefore, ask the Committee whether at the proper time they might entertain an amendment that will make this exercise of the right to vote abroad for Filipino citizens an effective, rather than merely a nominal right under this proposed Constitution. FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I would like to make a comment on the meaning of residence in the Constitution because I think it is a concept that has been discussed in various decisions of the Supreme Court, particularly in the case of Faypon vs. Quirino, a 1954 case which dealt precisely with the meaning of residence in the Election Law. Allow me to quote: A citizen may leave the place of his birth to look for greener pastures, as the saying goes, to improve his lot and that, of course, includes study in other places, practice of his avocation, reengaging in business.When an election is to be held, the citizen who left his birthplace to improve his lot may decide to return to his native town, to cast his ballot, but for professional or business reasons, or for any other reason, he may not absent himself from the place of his professional or business activities. So, they are here registered as voters as he has the qualifications to be one, and is not willing to give up or lose the opportunity to choose the officials who are to run the government especially in national elections. Despite such registration, the animus revertendi to his home, to his domicile or residence of origin has not forsaken him. This may be the explanation why the registration of a voter in a place other than his residence of origin has not been deemed sufficient to consider abandonment or loss of such residence of origin. In other words, residence in this provision refers to two residence qualifications: residence in the Philippines and residence in the place where he will vote. As far as residence in the Philippines is concerned, the word residence means domicile, but as far as residence in the place where he will actually cast his ballot is concerned, the meaning seems to be different. He could have a domicile somewhere else and yet he is a resident of a place for six months and he is allowed to vote there. 259 of 283

So that there may be serious constitutional obstacles to absentee voting, unless the vote of the person who is absent is a vote which will be considered as cast in the place of his domicile. MR. OPLE. Thank you for citing the jurisprudence. It gives me scant comfort thinking of about two million Filipinos who should enjoy the right of suffrage, at least a substantial segment of these overseas Filipino communities. The Committee, of course, is aware that when this Article of the Constitution explicitly and unequivocally extends the right of effective suffrage to Filipinos abroad, this will call for a logistical exercise of global proportions. In effect, this will require budgetary and administrative commitments on the part of the Philippine government, mainly through the COMELEC and the Ministry of Foreign Affairs, and perhaps, a more extensive elaboration of this mechanism that will be put in place to make effective the right to vote. Therefore, seeking shelter in some wise jurisprudence of the past may not be sufficient to meet the demands of the right of suffrage for Filipinos abroad that I have mentioned. But I want to thank the Committee for saying that an amendment to this effect may be entertained at the proper time. . . . . . . . . . [33] (Emphasis supplied)

Thus, the Constitutional Commission recognized the fact that while millions of Filipinos reside abroad principally for economic reasons and hence they contribute in no small measure to the economic uplift of this country, their voices are marginal insofar as the choice of this countrys leaders is concerned. The Constitutional Commission realized that under the laws then existing and considering the novelty of the system of absentee voting in this jurisdiction, vesting overseas Filipinos with the right to vote would spawn constitutional problems especially because the Constitution itself provides for the residency requirement of voters: MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if the term absentee voting also includes transient voting; meaning, those who are, let us say, studying in Manila need not go back to their places of registration, for instance, in Mindanao, to cast their votes. MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad. MR. REGALADO. How about those people who cannot go back to the places where they are registered? MR. MONSOD. Under the present Election Code, there are provisions for allowing students and military people who are temporarily in another place to register and vote. I believe that those situations can be covered by the Omnibus Election Code. The reason we want absentee voting to be in the Constitution as a mandate to the legislature is that there could be inconsistency on the residence rule if it is just a question of legislation by Congress. So, by allowing it and saying that this is possible, then legislation can take care of the rest.[34] (Emphasis supplied) Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the inapplicability of the residency requirement in Section 1. It is precisely to avoid any 260 of 283

problems that could impede the implementation of its pursuit to enfranchise the largest number of qualified Filipinos who are not in the Philippines that the Constitutional Commission explicitly mandated Congress to provide a system for overseas absentee voting. The discussion of the Constitutional Commission on the effect of the residency requirement prescribed by Section 1, Article V of the Constitution on the proposed system of absentee voting for qualified Filipinos abroad is enlightening: MR. SUAREZ. May I just be recognized for a clarification. There are certain qualifications for the exercise of the right of suffrage like having resided in the Philippines for at least one year and in the place where they propose to vote for at least six months preceding the elections. What is the effect of these mandatory requirements on the matter of the exercise of the right of suffrage by the absentee voters like Filipinos abroad? THE PRESIDENT. Would Commissioner Monsod care to answer? MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the domicile requirements as well as the qualifications and disqualifications would be the same. THE PRESIDENT. Are we leaving it to the legislature to devise the system? FR. BERNAS. I think there is a very legitimate problem raised there. THE PRESIDENT. Yes. MR. BENGZON. I believe Commissioner Suarez is clarified. FR. BERNAS. But I think it should be further clarified with regard to the residence requirement or the place where they vote in practice; the understanding is that it is flexible. For instance, one might be a resident of Naga or domiciled therein, but he satisfies the requirement of residence in Manila, so he is able to vote in Manila. MR. TINGSON. Madam President, may I then suggest to the Committee to change the word Filipinos to QUALIFIED FILIPINO VOTERS. Instead of VOTING BY FILIPINOS ABROAD, it should be QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFIED VOTERS LIVING ABROAD, would that not satisfy the requirement? THE PRESIDENT. What does Commissioner Monsod say? MR. MONSOD. Madam President, I think I would accept the phrase QUALIFIED FILIPINOS ABROAD because QUALIFIED would assume that he has the qualifications and none of the disqualifications to vote. MR. TINGSON. That is right. So does the Committee accept? FR. BERNAS. QUALIFIED FILIPINOS ABROAD? THE PRESIDENT. Does the Committee accept the amendment?

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MR. REGALADO. Madam President. THE PRESIDENT. Commissioner Regalado is recognized. MR. REGALADO. When Commissioner Bengzon asked me to read my proposed amendment, I specifically stated that the National Assembly shall prescribe a system which will enable qualified citizens, temporarily absent from the Philippines, to vote. According to Commissioner Monsod, the use of the phrase absentee voting already took that into account as its meaning. That is referring to qualified Filipino citizens temporarily abroad. MR. MONSOD. Yes, we accepted that. I would like to say that with respect to registration we will leave it up to the legislative assembly, for example, to require where the registration is. If it is, say, members of the diplomatic corps who may be continuously abroad for a long time, perhaps, there can be a system of registration in the embassies. However, we do not like to preempt the legislative assembly. THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is only to provide a system. MR. MONSOD. Yes. THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for these absentee voters. MR. MONSOD. That is right. They must have the qualifications and none of the disqualifications. THE PRESIDENT. It is just to devise a system by which they can vote. MR. MONSOD. That is right, Madam President.[35] (Emphasis supplied) Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the responsibility of devising a system of absentee voting. The qualifications of voters as stated in Section 1 shall remain except for the residency requirement. This is in fact the reason why the Constitutional Commission opted for the term qualified Filipinos abroad with respect to the system of absentee voting that Congress should draw up. As stressed by Commissioner Monsod, by the use of the adjective qualified with respect to Filipinos abroad, the assumption is that they have the qualifications and none of the disqualifications to vote. In fine-tuning the provision on absentee voting, the Constitutional Commission discussed how the system should work: MR. SUAREZ. For clarification purposes, we just want to state for the record that in the case of qualified Filipino citizens residing abroad and exercising their right of suffrage, they can cast their votes for the candidates in the place where they were registered to vote in the Philippines. So as to avoid any complications, for example, if they are registered in Angeles City, they could not vote for a mayor in Naga City. In other words, if that qualified voter is registered in Angeles City, then he can vote only for the local and national candidates in Angeles City. I just want to make that clear for the record. 262 of 283

MR. REGALADO. Madam President. THE PRESIDENT. What does Commissioner Regalado say? MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez that this envisions Filipinos residing abroad. The understanding in the amendment is that the Filipino is temporarily abroad. He may not be actually residing abroad; he may just be there on a business trip. It just so happens that the day before the elections he has to fly to the United States, so he could not cast his vote. He is temporarily abroad, but not residing there. He stays in a hotel for two days and comes back. This is not limited only to Filipinos temporarily residing abroad. But as long as he is temporarily abroad on the date of the elections, then he can fall within the prescription of Congress in that situation. MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we need this clarification on record. MR. MONSOD. Madam President, to clarify what we mean by temporarily abroad, it need not be on very short trips. One can be abroad on a treaty traders visa. Therefore, when we talk about registration, it is possible that his residence is in Angeles and he would be able to vote for the candidates in Angeles, but Congress or the Assembly may provide the procedure for registration, like listing ones name, in a registry list in the embassy abroad. That is still possible under the system. FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees with this. Suppose we have a situation of a child of a diplomatic officer who reaches the voting age while living abroad and he has never registered here. Where will he register? Will he be a registered voter of a certain locality in the Philippines? MR. MONSOD. Yes, it is possible that the system will enable that child to comply with the registration requirements in an embassy in the United States and his name is then entered in the official registration book in Angeles City, for instance. FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a registered voter of a locality here. MR. MONSOD. That is right. He does not have to come home to the Philippines to comply with the registration procedure here. FR. BERNAS. So, he does not have to come home. MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are more clarifications needed from the body.

Also, the Floor Leader is happy to announce that there are no more registered Commissioners to propose amendments. So I move that we close the period of amendments. [36] (Emphasis supplied)

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It is clear from these discussions of the members of the Constitutional Commission that they intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin. The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents domicile of origin is in the Philippines, and consider them qualified as voters for the first time. It is in pursuance of that intention that the Commission provided for Section 2 immediately after the residency requirement of Section 1. By the doctrine of necessary implication in statutory construction, which may be applied in construing constitutional provisions,[37] the strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution. That Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of the same Article was in fact the subject of debate when Senate Bill No. 2104, which became R.A. No. 9189, was deliberated upon on the Senate floor, thus: Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional provisions. I think the sponsor and I would agree that the Constitution is supreme in any statute that we may enact.

Let me read Section 1, Article V, of the Constitution entitled, Suffrage. It says: Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. Now, Mr. President, the Constitution says, who shall have resided in the Philippines. They are permanent immigrants. They have changed residence so they are barred under the Constitution. This is why I asked whether this committee amendment which in fact does not alter the original text of the bill will have any effect on this? Senator Angara. Good question, Mr. President. And this has been asked in various fora. This is in compliance with the Constitution. One, the interpretation here of residence is synonymous with domicile. As the gentleman and I know, Mr. President, domicile is the intent to return to ones home. And the fact that a Filipino may have been physically absent from the Philippines and may be physically a resident of the United States, for example, but has a clear intent to return to the Philippines, will make him qualified as a resident of the Philippines under this law. This is consistent, Mr. President, with the constitutional mandate that we that Congress must provide a franchise to overseas Filipinos.

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If we read the Constitution and the suffrage principle literally as demanding physical presence, then there is no way we can provide for offshore voting to our offshore kababayan, Mr. President. Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it reads: The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. The key to this whole exercise, Mr. President, is qualified. In other words, anything that we may do or say in granting our compatriots abroad must be anchored on the proposition that they are qualified. Absent the qualification, they cannot vote. And residents (sic) is a qualification. I will lose votes here from permanent residents so-called green-card holders, but the Constitution is the Constitution. We cannot compromise on this. The Senate cannot be a party to something that would affect or impair the Constitution. Look at what the Constitution says In the place wherein they propose to vote for at least six months immediately preceding the election. Mr. President, all of us here have run (sic) for office. I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are separated only by a creek. But one who votes in Makati cannot vote in Pateros unless he resides in Pateros for six months. That is how restrictive our Constitution is. I am not talking even about the Election Code. I am talking about the Constitution. As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he must do so, make the transfer six months before the election, otherwise, he is not qualified to vote. That is why I am raising this point because I think we have a fundamental difference here. Senator Angara. It is a good point to raise, Mr. President. But it is a point already welldebated even in the constitutional commission of 1986. And the reason Section 2 of Article V was placed immediately after the six-month/one-year residency requirement is to demonstrate unmistakably that Section 2 which authorizes absentee voting is an exception to the six-month/one-year residency requirement. That is the first principle, Mr. President, that one must remember. The second reason, Mr. President, is that under our jurisprudence and I think this is so wellentrenched that one need not argue about it residency has been interpreted as synonymous with domicile. But the third more practical reason, Mr. President, is, if we follow the interpretation of the gentleman, then it is legally and constitutionally impossible to give a franchise to vote to overseas Filipinos who do not physically live in the country, which is quite ridiculous because that is exactly the whole point of this exercise to enfranchise them and empower them to vote. [38] (Emphasis supplied)

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Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting process, to wit: SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for president, vicepresident, senators and party-list representatives. which does not require physical residency in the Philippines; and Section 5 of the assailed law which enumerates those who are disqualified, to wit: SEC. 5. Disqualifications. The following shall be disqualified from voting under this Act: a) Those who have lost their Filipino citizenship in accordance with Philippine laws; b) Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country; c) Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than one (1) year, including those who have committed and been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, such disability not having been removed by plenary pardon or amnesty: Provided, however, That any person disqualified to vote under this subsection shall automatically acquire the right to vote upon expiration of five (5) years after service of sentence; Provided, further, That the Commission may take cognizance of final judgments issued by foreign courts or tribunals only on the basis of reciprocity and subject to the formalities and processes prescribed by the Rules of Court on execution of judgments; d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or foreign service establishments concerned, unless such competent authority subsequently certifies that such person is no longer insane or incompetent. As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or permanent resident who is recognized as such in the host country because immigration or permanent residence in another country implies renunciation of ones residence in his country of origin. However, same Section allows an immigrant and permanent resident abroad to register as voter for as long as he/she executes an affidavit to show that he/she has not abandoned his domicile in pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V that all citizens of the Philippines not 266 of 283

otherwise disqualified by law must be entitled to exercise the right of suffrage and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the framers of the Constitution to mandate Congress to establish a system for absentee voting. Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the Constitution that proscribes provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise. To repeat, the affidavit is required of immigrants and permanent residents abroad because by their status in their host countries, they are presumed to have relinquished their intent to return to this country; thus, without the affidavit, the presumption of abandonment of Philippine domicile shall remain. Further perusal of the transcripts of the Senate proceedings discloses another reason why the Senate required the execution of said affidavit. It wanted the affiant to exercise the option to return or to express his intention to return to his domicile of origin and not to preempt that choice by legislation. Thus: Senator Villar. Yes, we are going back. It states that: For Filipino immigrants and those who have acquired permanent resident status abroad, a requirement for the registration is the submission of a Sworn Declaration of Intent to Return duly sworn before any Philippine embassy or consulate official authorized to administer oath Mr. President, may we know the rationale of this provision? Is the purpose of this Sworn Declaration to include only those who have the intention of returning to be qualified to exercise the right of suffrage? What if the Filipino immigrant has no purpose of returning? Is he automatically disbarred from exercising this right to suffrage? Senator Angara. The rationale for this, Mr. President, is that we want to be expansive and all-inclusive in this law. That as long as he is a Filipino, no matter whether he is a green-card holder in the U.S. or not, he will be authorized to vote. But if he is already a green-card holder, that means he has acquired permanent residency in the United States, then he must indicate an intention to return. This is what makes for the definition of domicile. And to acquire the vote, we thought that we would require the immigrants and the green-card holders . . . Mr. President, the three administration senators are leaving, maybe we may ask for a vote [Laughter]. Senator Villar. For a merienda, Mr. President. Senator Angara. Mr. President, going back to the business at hand. The rationale for the requirement that an immigrant or a green-card holder should file an affidavit that he will 267 of 283

go back to the Philippines is that, if he is already an immigrant or a green-card holder, that means he may not return to the country any more and that contradicts the definition of domicile under the law. But what we are trying to do here, Mr. President, is really provide the choice to the voter. The voter, after consulting his lawyer or after deliberation within the family, may decide No, I think we are risking our permanent status in the United States if we file an affidavit that we want to go back. But we want to give him the opportunity to make that decision. We do not want to make that decision for him. [39] (Emphasis supplied)

The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are disqualified to run for any elective office finds no application to the present case because the Caasi case did not, for obvious reasons, consider the absentee voting rights of Filipinos who are immigrants and permanent residents in their host countries. In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be considered as a qualified citizen of the Philippines abroad upon fulfillment of the requirements of registration under the new law for the purpose of exercising their right of suffrage. It must be emphasized that Section 5(d) does not only require an affidavit or a promise to resume actual physical permanent residence in the Philippines not later than three years from approval of his/her registration, the Filipinos abroad must also declare that they have not applied for citizenship in another country. Thus, they must return to the Philippines; otherwise, their failure to return shall be cause for the removal of their names from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia. Thus, Congress crafted a process of registration by which a Filipino voter permanently residing abroad who is at least eighteen years old, not otherwise disqualified by law, who has not relinquished Philippine citizenship and who has not actually abandoned his/her intentions to return to his/her domicile of origin, the Philippines, is allowed to register and vote in the Philippine embassy, consulate or other foreign service establishments of the place which has jurisdiction over the country where he/she has indicated his/her address for purposes of the elections, while providing for safeguards to a clean election. Thus, Section 11 of R.A. No. 9189 provides: SEC. 11. Procedure for Application to Vote in Absentia. 11.1. Every qualified citizen of the Philippines abroad whose application for registration has been approved, including those previously registered under Republic Act No. 8189, shall, in every national election, file with the officer of the embassy, consulate or other foreign service establishment authorized by the Commission, a sworn written application to vote in a form prescribed by the Commission. The authorized officer of such embassy, consulate or other foreign service establishment shall transmit to the Commission the said application to vote within five (5) 268 of 283

days from receipt thereof. The application form shall be accomplished in triplicate and submitted together with the photocopy of his/her overseas absentee voter certificate of registration. 11.2. Every application to vote in absentia may be done personally at, or by mail to, the embassy, consulate or foreign service establishment, which has jurisdiction over the country where he/she has indicated his/her address for purposes of the elections. 11.3. Consular and diplomatic services rendered in connection with the overseas absentee voting processes shall be made available at no cost to the overseas absentee voter. Contrary to petitioners claim that Section 5(d) circumvents the Constitution, Congress enacted the law prescribing a system of overseas absentee voting in compliance with the constitutional mandate. Such mandate expressly requires that Congress provide a system of absentee voting that necessarily presupposes that the qualified citizen of the Philippines abroad is not physically present in the country. The provisions of Sections 5(d) and 11 are components of the system of overseas absentee voting established by R.A. No. 9189. The qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the Philippines. He is presumed not to have lost his domicile by his physical absence from this country. His having become an immigrant or permanent resident of his host country does not necessarily imply an abandonment of his intention to return to his domicile of origin, the Philippines. Therefore, under the law, he must be given the opportunity to express that he has not actually abandoned his domicile in the Philippines by executing the affidavit required by Sections 5(d) and 8(c) of the law. Petitioners speculative apprehension that the implementation of Section 5(d) would affect the credibility of the elections is insignificant as what is important is to ensure that all those who possess the qualifications to vote on the date of the election are given the opportunity and permitted to freely do so. The COMELEC and the Department of Foreign Affairs have enough resources and talents to ensure the integrity and credibility of any election conducted pursuant to R.A. No. 9189. As to the eventuality that the Filipino abroad would renege on his undertaking to return to the Philippines, the penalty of perpetual disenfranchisement provided for by Section 5(d) would suffice to serve as deterrence to non-compliance with his/her undertaking under the affidavit. Petitioner argues that should a sizable number of immigrants renege on their promise to return, the result of the elections would be affected and could even be a ground to contest the proclamation of the winning candidates and cause further confusion and doubt on the integrity of the results of the election. Indeed, the probability that after an immigrant has exercised the right to vote, he shall opt to remain in his host country beyond the third year from the execution of the affidavit, is not farfetched. However, it is not for this Court to determine the wisdom of a legislative exercise. As expressed in Taada vs. Tuvera,[40] the Court is not called upon to rule on the wisdom of the law or to repeal it or modify it if we find it impractical.

Congress itself was conscious of said probability and in fact, it has addressed the expected problem. Section 5(d) itself provides for a deterrence which is that the Filipino 269 of 283

who fails to return as promised stands to lose his right of suffrage. Under Section 9, should a registered overseas absentee voter fail to vote for two consecutive national elections, his name may be ordered removed from the National Registry of Overseas Absentee Voters. Other serious legal questions that may be raised would be: what happens to the votes cast by the qualified voters abroad who were not able to return within three years as promised?What is the effect on the votes cast by the non-returnees in favor of the winning candidates? The votes cast by qualified Filipinos abroad who failed to return within three years shall not be invalidated because they were qualified to vote on the date of the elections, but their failure to return shall be cause for the removal of the names of the immigrants or permanent residents from the National Registry of Absentee Voters and their permanent disqualification to vote in absentia. In fine, considering the underlying intent of the Constitution, the Court does not find Section 5(d) of R.A. No. 9189 as constitutionally defective. B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in contravention of Section 4, Article VII of the Constitution? Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for president, vice-president, senators and party-list representatives. Section 18.5 of the same Act provides: SEC. 18. On-Site Counting and Canvassing. ......... 18. 5 The canvass of votes shall not cause the delay of the proclamation of a winning candidate if the outcome of the election will not be affected by the results thereof. Notwithstanding the foregoing, the Commission is empowered to order the proclamation of winning candidates despite the fact that the scheduled election has not taken place in a particular country or countries, if the holding of elections therein has been rendered impossible by events, factors and circumstances peculiar to such country or countries, in which events, factors and circumstances are beyond the control or influence of the Commission. (Emphasis supplied) Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the COMELEC to order the proclamation of winning candidates insofar as it affects the canvass of votes and proclamation of winning candidates for president and vicepresident, is unconstitutional because it violates the following provisions of paragraph 4, Section 4 of Article VII of the Constitution: SEC. 4 . . . The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate.Upon receipt of the certificates of canvass, the President of the Senate shall, not later 270 of 283

than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately. The Congress shall promulgate its rules for the canvassing of the certificates. ... which gives to Congress the duty to canvass the votes and proclaim the winning candidates for president and vice-president. The Solicitor General asserts that this provision must be harmonized with paragraph 4, Section 4, Article VII of the Constitution and should be taken to mean that COMELEC can only proclaim the winning Senators and party-list representatives but not the President and Vice-President.[41] Respondent COMELEC has no comment on the matter. Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is far too sweeping that it necessarily includes the proclamation of the winning candidates for the presidency and the vice-presidency. Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the Constitution only insofar as said Section totally disregarded the authority given to Congress by the Constitution to proclaim the winning candidates for the positions of president and vice-president. In addition, the Court notes that Section 18.4 of the law, to wit: 18.4. . . . Immediately upon the completion of the canvass, the chairman of the Special Board of Canvassers shall transmit via facsimile, electronic mail, or any other means of transmission equally safe and reliable the Certificates of Canvass and the Statements of Votes to the Commission, . . . [Emphasis supplied] clashes with paragraph 4, Section 4, Article VII of the Constitution which provides that the returns of every election for President and Vice-President shall be certified by the board of canvassers to Congress. Congress could not have allowed the COMELEC to usurp a power that constitutionally belongs to it or, as aptly stated by petitioner, to encroach on the power of Congress to canvass the votes for president and vice-president and the power to proclaim the winners for the said positions. The provisions of the Constitution as the fundamental law of the land should be read as part of The Overseas Absentee Voting Act of 2003 and hence, the canvassing of the votes and the proclamation of the winning candidates for president and vice-president for the entire nation must remain in the hands of Congress. 271 of 283

C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A of the Constitution? Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A (Common Provisions) of the Constitution, to wit: Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit. (Emphasis supplied) He submits that the creation of the Joint Congressional Oversight Committee with the power to review, revise, amend and approve the Implementing Rules and Regulations promulgated by the COMELEC, R.A. No. 9189 intrudes into the independence of the COMELEC which, as a constitutional body, is not under the control of either the executive or legislative departments of government; that only the COMELEC itself can promulgate rules and regulations which may be changed or revised only by the majority of its members; and that should the rules promulgated by the COMELEC violate any law, it is the Court that has the power to review the same via the petition of any interested party, including the legislators. It is only on this question that respondent COMELEC submitted its Comment. It agrees with the petitioner that Sections 19 and 25 of R.A. No. 9189 are unconstitutional. Like the petitioner, respondent COMELEC anchors its claim of unconstitutionality of said Sections upon Section 1, Article IX-A of the Constitution providing for the independence of the constitutional commissions such as the COMELEC. It asserts that its power to formulate rules and regulations has been upheld in Gallardo vs. Tabamo, Jr.[42] where this Court held that the power of the COMELEC to formulate rules and regulations is implicit in its power to implement regulations under Section 2(1) of Article IX-C[43] of the Constitution. COMELEC joins the petitioner in asserting that as an independent constitutional body, it may not be subject to interference by any government instrumentality and that only this Court may review COMELEC rules and only in cases of grave abuse of discretion.

The COMELEC adds, however, that another provision, vis--vis its rule-making power, to wit: SEC. 17. Voting by Mail. 17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more than three (3) countries, subject to the approval of the Congressional Oversight Committee. Voting by mail may be allowed in countries that satisfy the following conditions: a) Where the mailing system is fairly well-developed and secure to prevent occasion for fraud; b) Where there exists a technically established identification system that would preclude multiple or proxy voting; and c) Where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign service establishments concerned are adequate and well-secured. Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint Congressional Oversight Committee. . . . . . . . . . (Emphasis supplied) 272 of 283

is likewise unconstitutional as it violates Section 1, Article IX-A mandating the independence of constitutional commissions. The Solicitor General takes exception to his prefatory statement that the constitutional challenge must fail and agrees with the petitioner that Sections 19 and 25 are invalid and unconstitutional on the ground that there is nothing in Article VI of the Constitution on Legislative Department that would as much as imply that Congress has concurrent power to enforce and administer election laws with the COMELEC; and by the principles of exclusio unius est exclusio alterius and expressum facit cessare tacitum, the constitutionally enumerated powers of Congress circumscribe its authority to the exclusion of all others. The parties are unanimous in claiming that Sections 19, 25 and portions of Section 17.1 are unconstitutional. Thus, there is no actual issue forged on this question raised by petitioner. However, the Court finds it expedient to expound on the role of Congress through the Joint Congressional Oversight Committee (JCOC) vis--vis the independence of the COMELEC, as a constitutional body. R.A. No. 9189 created the JCOC, as follows: SEC. 25. Joint Congressional Oversight Committee. A Joint Congressional Oversight Committee is hereby created, composed of the Chairman of the Senate Committee on Constitutional Amendments, Revision of Codes and Laws, and seven (7) other Senators designated by the Senate President, and the Chairman of the House Committee on Suffrage and Electoral Reforms, and seven (7) other Members of the House of Representatives designated by the Speaker of the House of Representatives: Provided, That, of the seven (7) members to be designated by each House of Congress, four (4) should come from the majority and the remaining three (3) from the minority. The Joint Congressional Oversight Committee shall have the power to monitor and evaluate the implementation of this Act. It shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission. (Emphasis supplied) SEC. 19. Authority of the Commission to Promulgate Rules. The Commission shall issue the necessary rules and regulations to effectively implement the provisions of this Act within sixty (60) days from the effectivity of this Act. The Implementing Rules and Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of this Act for prior approval. . . . . . . . . . (Emphasis supplied) Composed of Senators and Members of the House of Representatives, the Joint Congressional Oversight Committee (JCOC) is a purely legislative body. There is no question that the authority of Congress to monitor and evaluate the implementation of R.A. No. 9189 is geared towards possible amendments or revision of the law itself and thus, may be performed in aid of its legislation. 273 of 283

However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the JCOC the following functions: (a) to review, revise, amend and approve the Implementing Rules and Regulations (IRR) promulgated by the COMELEC [Sections 25 and 19]; and (b) subject to the approval of the JCOC [Section 17.1], the voting by mail in not more than three countries for the May 2004 elections and in any country determined by COMELEC. The ambit of legislative power under Article VI of the Constitution is circumscribed by other constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution ordaining that constitutional commissions such as the COMELEC shall be independent. Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be an independent COMELEC, the Court has held that [w]hatever may be the nature of the functions of the Commission on Elections, the fact is that the framers of the Constitution wanted it to be independent from the other departments of the Government. [44] In an earlier case, the Court elucidated:

The Commission on Elections is a constitutional body. It is intended to play a distinct and important part in our scheme of government. In the discharge of its functions, it should not be hampered with restrictions that would be fully warranted in the case of a less responsible organization. The Commission may err, so may this court also. It should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the great objective for which it was created free, orderly and honest elections. We may not agree fully with its choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere. Politics is a practical matter, and political questions must be dealt with realistically not from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions. [45] (Emphasis supplied)

The Court has no general powers of supervision over COMELEC which is an independent body except those specifically granted by the Constitution, that is, to review its decisions, orders and rulings.[46] In the same vein, it is not correct to hold that because of its recognized extensive legislative power to enact election laws, Congress may intrude into the independence of the COMELEC by exercising supervisory powers over its rule-making authority.

By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to issue the necessary rules and regulations to effectively implement the provisions of this Act within sixty days from the effectivity of this Act. This provision of law follows the usual procedure in drafting rules and regulations to implement a law the legislature grants an administrative agency the authority to craft the rules and regulations implementing the law it has enacted, in recognition of the administrative expertise of that agency in its particular field of operation.[47] Once a law is enacted and approved, the legislative function is deemed accomplished and complete. The legislative function may spring back to Congress relative to the same law only if that body deems it proper to review, amend and revise the law, but certainly not to approve, review, revise and amend the IRR of the COMELEC.

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By vesting itself with the powers to approve, review, amend, and revise the IRR for The Overseas Absentee Voting Act of 2003, Congress went beyond the scope of its constitutional authority. Congress trampled upon the constitutional mandate of independence of the COMELEC. Under such a situation, the Court is left with no option but to withdraw from its usual reticence in declaring a provision of law unconstitutional. The second sentence of the first paragraph of Section 19 stating that [t]he Implementing Rules and Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of this Act for prior approval, and the second sentence of the second paragraph of Section 25 stating that [i]t shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission, whereby Congress, in both provisions, arrogates unto itself a function not specifically vested by the Constitution, should be stricken out of the subject statute for constitutional infirmity. Both provisions brazenly violate the mandate on the independence of the COMELEC. Similarly, the phrase, subject to the approval of the Congressional Oversight Committee in the first sentence of Section 17.1 which empowers the Commission to authorize voting by mail in not more than three countries for the May, 2004 elections; and the phrase, only upon review and approval of the Joint Congressional Oversight Committee found in the second paragraph of the same section are unconstitutional as they require review and approval of voting by mail in any country after the 2004 elections. Congress may not confer upon itself the authority to approve or disapprove the countries wherein voting by mail shall be allowed, as determined by the COMELEC pursuant to the conditions provided for in Section 17.1 of R.A. No. 9189.[48] Otherwise, Congress would overstep the bounds of its constitutional mandate and intrude into the independence of the COMELEC.

During the deliberations, all the members of the Court agreed to adopt the separate opinion of Justice Reynato S. Puno as part of the ponencia on the unconstitutionality of Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as they relate to the creation of and the powers given to the Joint Congressional Oversight Committee. WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No. 9189 are declared VOID for being UNCONSTITUTIONAL: a) The phrase in the first sentence of the first paragraph of Section 17.1, to wit: subject to the approval of the Joint Congressional Oversight Committee; b) The portion of the last paragraph of Section 17.1, to wit: only upon review and approval of the Joint Congressional Oversight Committee; c) The second sentence of the first paragraph of Section 19, to wit: The Implementing Rules and Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of this Act for prior approval; and

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d) The second sentence in the second paragraph of Section 25, to wit: It shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission of the same law; for being repugnant to Section 1, Article IX-A of the Constitution mandating the independence of constitutional commission, such as COMELEC. The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to the authority given to the COMELEC to proclaim the winning candidates for the Senators and party-list representatives but not as to the power to canvass the votes and proclaim the winning candidates for President and Vice-President which is lodged with Congress under Section 4, Article VII of the Constitution. The constitutionality of Section 5(d) is UPHELD. Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues to be in full force and effect. SO ORDERED. Davide, Jr., C.J., and Corona, JJ., concur. Quisumbing, J., on leave. Tinga, J., no part. Bellosillo, and Carpio, JJ., see concurring opinion. Puno, Ynares-Santiago, and Callejo, Sr., JJ., see concurring and dissenting opinion. Sandoval-Gutierrez, J., see concurring and dissenting opinion. On official leave. Vitug, and Panganiban, JJ., see separate opinion. Carpio-Morales, and Azcuna, JJ., see separate (concurring) opinion.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-42300

January 31, 1936

THE PEOPLE OF THE vs. AMADEO CORRAL, defendant-appellant.

PHILIPPINE

ISLANDS,

plaintiff-appellee,

Generoso, Pelayo, Castillo, Braganza, Chavez, Doromal, Diaz and Capili for appellant. Office of the Solicitor General Hilado for appellee. ABAD SANTOS, J.: Appellant was charged having voted illegally at the general elections held on June 5, 1934. After due trial, he was convicted on the ground that he had voted while laboring under a legal disqualification. The judgment of conviction was based on section 2642, in connection with section 432. of the Revised Administrative Code. Said Section 432 reads as follows: The following persons shall be disqualified from voting: (a) Any person who, since the thirteenth day of August, eighteen hundred and ninety-eight, has been sentenced by final judgment to suffer not less than eighteen months of imprisonment, such disability not having been removed by plenary pardon. (b) Any person who has violated an oath of allegiance taken by him to the United States. (c) Insane of feeble-minded persons. (d) Deaf-mutes who cannot read and write. (e) Electors registered under subsection (c) of the next proceeding section who, after failing to make sworn statement to the satisfaction of the board of inspectors at any of its two meetings for registration and revision, that they are incapacitated for preparing their ballots due to permanent physical disability, present themselves at the hour of voting as incapacitated, irrespective of whether such incapacity be real or feigned. And section 2642 provides: Whoever at any election votes or attempts to vote knowing that he is not entitled so to do, ... shall be punished by imprisonment for not less than one month nor more than one year and by a fine of not less than one hundred pesos nor more than one thousand pesos, and in all cases by deprivation of the right of suffrage and disqualification from public office for a period of not more than four years. It is undisputed that appellant was sentenced by final judgment of this court promulgated on March 3, 1910,1 to suffer eight years and one day of presidio mayor. No evidence was presented to show that prior to June 5, 1934, he had been granted a plenary pardon. It is likewise undisputed that at the general elections held on June 5, 1934, the voted in election precinct No. 18 of the municipality of Davao, Province of Davao.

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The modern conception of the suffrage is that voting is a function of government. The right to vote is not a natural right but is a right created by law. Suffrage is a privilege granted by the State to such persons or classes as are most likely to exercise it for the public good. In the early stages of the evolution of the representative system of government, the exercise of the right of suffrage was limited to a small portion of the inhabitants. But with the spread of democratic ideas, the enjoyment of the franchise in the modern states has come to embrace the mass of the audit classes of persons are excluded from the franchise. Among the the generally excluded classes are minors idiots, paupers, and convicts. The right of the State to deprive persons to the right of suffrage by reason of their having been convicted of crime, is beyond question. "The manifest purpose of such restrictions upon this right is to preserve the purity of elections. The presumption is that one rendered infamous by conviction of felony, or other base offense indicative of moral turpitude, is unfit to exercise the privilege of suffrage or to hold office. The exclusion must for this reason be adjudged a mere disqualification, imposed for protection and not for punishment, the withholding of a privilege and not the denial of a personal right. (9 R.C.L., 1042.) Upon the facts established in this case, it seems clear that the appellant was not entitled to vote on June 5 1934, because of section 432 of the Revised Administrative Code which disqualified from voting any person who, since the 13th day of August, 1898, had been sentenced by final judgment to offer not less than eighteen months of imprisonment, such disability not having been removed by plenary pardon. As above stated, the appellant had been sentenced by final judgment to suffer eight years and one day of presidio mayor, and had not been granted a plenary pardon. Counsel for the appellant contend that inasmuch as the latter voted in 1928 his offense had already prescribed, and he could no longer be prosecuted for illegal voting at the general election held on June 5, 1934. This contention is clearly without merit. The disqualification for crime imposed under section 432 of the Revised Administrative Code having once attached on the appellant and not having been subsequently removed by a plenary pardon, continued and rendered it illegal for the appellant to vote at the general elections of 1934. Neither is there any merit in the contention advanced by counsel for the appellant that the disqualification imposed on the latter must be considered as having been removed at the expiration of his sentence. This claim is based upon an erroneous theory of the nature of the disqualification. It regards it as a punishment when, as already indicated, the correct view is that it is imposed, "for protection and not for punishment,. the withholding of a prvilege and not the denial of a personal right." Judicial interpretation and long established administrative practice are against such a view. The judgment appealed from is affirmed with costs against the appellant. So ordered. Villa-Real, Vickers, Imperial, Butte, and Goddard, JJ., concur.

Separate Opinions AVANCEÑA, C.J., dissenting: The appealed judgment affirmed by the majority members of this court sentences the appellant for having voted in the general election held on June 5, 1934, in the municipality of Davao, Province of Davao, being disqualified from voting. The appellant, in my opinion, was not disqualified from voting.

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The appellant was sentenced to the penalty of eight years and one day of prision mayor in the year 1910. This penalty carried with it, as an accessory, disqualification from the right of suffrage during the term of the sentence. He began to serve his sentence on April 11, 1910. He was granted a conditional pardon on July 31, 1913. Inasmuch as the accessory penalty of disqualification from the right of suffrage was not expressly remitted in this pardon, it is understood that he complied with and extinguished this part of the sentence on April 12, 1918. Therefore, under the penalty imposed upon the appellant, he was not disqualified from voting in 1934. The majority, however bases its decision on section 432 of the administrative Code which reads: The following persons shall be disqualified from voting: (a) Any person who, since the thirteenth day of August, eighteen hundred and ninety-eight, has been sentenced by final judgment to suffer not less than eighteen months of imprisonment, such disability not having been removed by plenary pardon. The language of the law is not clear whether the disqualification referred to therein is only for the term of the sentence or for the entire life time of the convict. The majority however, interprets this provision in the latter sense to which I do not agree, it being contrary to the spirit thereof. If the interpretation of the majority were correct, section 432 of the Administrative Code would not harmonize with the latter provisions thereof (secs. 2636, 2637, 2639, 2640, 2641, 2642, 2643, 2644, 2645, 2646, 2647, 2649, 2652, 2654, 2656, 2657, 2658 and 2659) on offenses relative to elections and elective officers, imposing the penalties of imprisonment and disqualification from the right of suffrage for a period not exceeding five and fourteen years, respectively. Supposing that in one of said cases, for instance that of an election inspector who willfully signs a false statement of the result of a ballot (sec. 2639), the penalty of imprisonment for more than eighteen months is imposed upon him could be disqualified from voting during his entire lifetime, in accordance with section 432, if the interpretation of the majority is correct, and it would be to no purpose still to sentence him to him to the penalty of disqualification from the right of suffrage for a period not exceeding fourteen years. It cannot be said to harmonize these provisions, that the disqualification from the right of suffrage should be imposed only when the penalty of imprisonment imposed therein less than eighteen months because it is expressly required that both penalties be imposed in all cases. Neither can it be said that section 432 governs all cases, in general, and sections 2336 et seq. govern the specific cases referred to therein, because there would be no justice in the law. One may be sentenced to more than eighteen months of imprisonment for having committed the crime of serious physical injuries, for instance, through reckless negligence or in self-defense, but without having used the means reasonably necessary therefor, and according to the majority opinion he will be disqualified from voting during his entire who, abusing his position, willfully commits a falsehood in connection with a ballot entrusted to him, after serving his sentence which does not exceed fourteen years, will again be qualified to vote. This cannot be the result countenanced by the law. If the law in more serious cases wherein an attempt is made directly against the cleanliness of the election, not disqualifies the guilty party from the right of suffrage for a period not exceeding fourteen years, it cannot be supposed that its intention is to forever disqualify therefrom the party guilty of a crime which bears no relation to the exercise of suffrage and which does not involve the degree of moral turpitude as in the other case. I am of the opinion that this anomaly can be avoided only by interpreting section 432 in the sense that the disqualification referred to therein is merely during the term of the sentence. RECTO, J.:

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