EN BANC

Consortium and/or Mega Pacific eSolutions, Inc. (MPEI); and (3) to

compel Comelec to conduct a re-bidding of the project.
The Facts

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

INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, MA.
CORAZON M. AKOL, MIGUEL UY, EDUARDO H. LOPEZ,
AUGUSTO C. LAGMAN, REX C. DRILON, MIGUEL
HILADO, LEY SALCEDO, and MANUEL ALCUAZ
JR., petitioners,
vs. COMMISSION
ON
ELECTIONS; COMELEC CHAIRMAN BENJAMIN ABALOS
SR.; COMELEC BIDDING and AWARD COMMITTEE
CHAIRMAN EDUARDO D. MEJOS and MEMBERS GIDEON DE
GUZMAN, JOSE F. BALBUENA, LAMBERTO P. LLAMAS, and
BARTOLOME
SINOCRUZ
JR.; MEGA
PACIFIC
eSOLUTIONS,
INC.;
and
MEGA
PACIFIC
CONSORTIUM, respondents.
DECISION
PANGANIBAN, J.:
There is grave abuse of discretion (1) when an act is done
contrary to the Constitution, the law or jurisprudence;[1] or (2) when it is
executed whimsically, capriciously or arbitrarily out of malice, ill will or
personal bias.[2] In the present case, the Commission on Elections
approved the assailed Resolution and awarded the subject Contract
not only in clear violation of law and jurisprudence, but also in reckless
disregard of its own bidding rules and procedure.For the automation of
the counting and canvassing of the ballots in the 2004 elections,
Comelec awarded the Contract to Mega Pacific Consortium an entity
that had not participated in the bidding. Despite this grant, the poll
body signed the actual automation Contract with Mega Pacific
eSolutions, Inc., a company that joined the bidding but had not met the
eligibility requirements.
Comelec awarded this billion-peso undertaking with inexplicable
haste, without adequately checking and observing mandatory financial,
technical and legal requirements. It also accepted the proferred
computer hardware and software even if, at the time of the award, they
had undeniably failed to pass eight critical requirements designed to
safeguard the integrity of elections, especially the following three
items:
They failed to achieve the accuracy rating criteria of
99.9995 percent set-up by the Comelec itself
They were not able to detect previously downloaded
results at various canvassing or consolidation levels
and to prevent these from being inputted again
They were unable to print the statutorily required audit
trails of the count/canvass at different levels without
any loss of data
Because of the foregoing violations of law and the glaring grave
abuse of discretion committed by Comelec, the Court has no choice
but to exercise its solemn constitutional duty [3] to void the assailed
Resolution and the subject Contract. The illegal, imprudent and hasty
actions of the Commission have not only desecrated legal and
jurisprudential norms, but have also cast serious doubts upon the poll
bodys ability and capacity to conduct automated elections. Truly, the
pith and soul of democracy -- credible, orderly, and peaceful elections
-- has been put in jeopardy by the illegal and gravely abusive acts of
Comelec.
The Case
Before us is a Petition[4] under Rule 65 of the Rules of Court,
seeking (1) to declare null and void Resolution No. 6074 of the
Commission on Elections (Comelec), which awarded Phase II of the
Modernization Project of the Commission to Mega Pacific Consortium
(MPC); (2) to enjoin the implementation of any further contract that
may have been entered into by Comelec either with Mega Pacific

The following facts are not disputed. They were culled from
official documents, the parties pleadings, as well as from admissions
during the Oral Argument on October 7, 2003.
On June 7, 1995, Congress passed Republic Act 8046, [5] which
authorized Comelec to conduct a nationwide demonstration of a
computerized election system and allowed the poll body to pilot-test
the system in the March 1996 elections in the Autonomous Region in
Muslim Mindanao (ARMM).
On December 22, 1997, Congress enacted Republic Act
8436[6] authorizing Comelec to use an automated election system
(AES) for the process of voting, counting votes and
canvassing/consolidating the results of the national and local
elections. It also mandated the poll body to acquire automated
counting machines (ACMs), computer equipment, devices and
materials; and to adopt new electoral forms and printing materials.
Initially intending to implement the automation during the May 11,
1998 presidential elections, Comelec -- in its Resolution No. 2985
dated February 9, 1998[7] -- eventually decided against full national
implementation and limited the automation to the Autonomous Region
in Muslim Mindanao (ARMM). However, due to the failure of the
machines to read correctly some automated ballots in one town, the
poll body later ordered their manual count for the entire Province of
Sulu.[8]
In the May 2001 elections, the counting and canvassing of votes
for both national and local positions were also done manually, as no
additional ACMs had been acquired for that electoral exercise allegedly
because of time constraints.
On October 29, 2002, Comelec adopted in its Resolution 020170 a modernization program for the 2004 elections. It resolved to
conduct biddings for the three (3) phases of its Automated Election
System; namely, Phase I - Voter Registration and Validation System;
Phase II - Automated Counting and Canvassing System; and Phase III
- Electronic Transmission.
On January 24, 2003, President Gloria Macapagal-Arroyo issued
Executive Order No. 172, which allocated the sum of P2.5 billion to
fund the AES for the May 10, 2004 elections. Upon the request of
Comelec, she authorized the release of an additional P500 million.
On January 28, 2003, the Commission issued an Invitation to
Apply for Eligibility and to Bid, which we quote as follows:
INVITATION TO APPLY FOR ELIGIBILITY AND TO BID
The Commission on Elections (COMELEC), pursuant to the mandate of
Republic Act Nos. 8189 and 8436, invites interested offerors, vendors,
suppliers or lessors to apply for eligibility and to bid for the procurement by
purchase, lease, lease with option to purchase, or otherwise, supplies,
equipment, materials and services needed for a comprehensive Automated
Election System, consisting of three (3) phases: (a) registration/verification of
voters, (b) automated counting and consolidation of votes, and (c)electronic
transmission of election results, with an approved budget of TWO BILLION
FIVE HUNDRED MILLION (Php2,500,000,000) Pesos.

Only bids from the following entities shall be entertained:

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

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

and of which at least sixty percent (60%) of the
outstanding capital stock belongs to citizens of the
Philippines;
d. Manufacturers, suppliers and/or distributors forming
themselves into a joint venture, i.e., a group of two (2)
or more manufacturers, suppliers and/or distributors
that intend to be jointly and severally responsible or
liable for a particular contract, provided that Filipino
ownership thereof shall be at least sixty percent (60%);
and
e. Cooperatives duly registered with the Cooperatives
Development Authority.
Bid documents for the three (3) phases may be obtained starting 10 February
2003, during office hours from the Bids and Awards Committee (BAC)
Secretariat/Office of Commissioner Resurreccion Z. Borra, 7th Floor, Palacio
del Governador, Intramuros, Manila, upon payment at the Cash Division,
Commission on Elections, in cash or cashiers check, payable to the
Commission on Elections, of a non-refundable amount of FIFTEEN
THOUSAND PESOS (Php15,000.00) for each phase. For this purpose,
interested offerors, vendors, suppliers or lessors have the option to participate
in any or all of the three (3) phases of the comprehensive Automated Election
System.
A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at the
Session Hall, Commission on Elections, Postigo Street, Intramuros,
Manila. Should there be questions on the bid documents, bidders are required
to submit their queries in writing to the BAC Secretariat prior to the scheduled
Pre-Bid Conference.
Deadline for submission to the BAC of applications for eligibility and bid
envelopes for the supply of the comprehensive Automated Election System
shall be at the Session Hall, Commission on Elections, Postigo Street,
Intramuros, Manila on 28 February 2003 at 9:00 a.m.
The COMELEC reserves the right to review the qualifications of the bidders
after the bidding and before the contract is executed. Should such review
uncover any misrepresentation made in the eligibility statements, or any
changes in the situation of the bidder to materially downgrade the substance of
such statements, the COMELEC shall disqualify the bidder upon due notice
without any obligation whatsoever for any expenses or losses that may be
incurred by it in the preparation of its bid.[9]
On February 11, 2003, Comelec issued Resolution No. 5929
clarifying certain eligibility criteria for bidders and the schedule of
activities for the project bidding, as follows:
1.)

2.)

3.)
4.)

Open to Filipino and foreign corporation duly registered and

licensed to do business and is actually doing business in the
Philippines, subject to Sec. 43 of RA 9184 (An Act providing In the
Modernization Standardization and Regulation of the Procurement
Activities of the Government and for other purposes etc.)
Track Record:
a) For counting machines should have been used in at least
one (1) political exercise with no less than Twenty
Million Voters;
b) For verification of voters the reference site of an existing
data base installation using Automated Fingerprint
Identification System (AFIS) with at least Twenty
Million.
Ten percent (10%) equity requirement shall be based on the total
project cost; and
Performance bond shall be twenty percent (20%) of the bid offer.

RESOLVED moreover, that:

A.

Due to the decision that the eligibility requirements and the rest of the
Bid documents shall be released at the same time, and the
memorandum of Comm. Resurreccion Z. Borra dated February 7,
2003, the documents to be released on Friday, February 14, 2003 at

B.
C.
D.

2:00 oclock p.m. shall be the eligibility criteria, Terms of Reference

(TOR) and other pertinent documents;
Pre-Bid conference shall be on February 18, 2003; and
Deadline for the submission and receipt of the Bids shall be on
March 5, 2003.
The aforementioned documents will be available at the following
offices:
a) Voters Validation: Office of Comm. Javier
b) Automated Counting Machines: Office of Comm.
Borra
c) Electronic Transmission: Office of Comm. Tancangco[10]

On February 17, 2003, the poll body released the Request for
Proposal (RFP) to procure the election automation machines. The Bids
and Awards Committee (BAC) of Comelec convened a pre-bid
conference on February 18, 2003 and gave prospective bidders until
March 10, 2003 to submit their respective bids.
Among others, the RFP provided that bids from manufacturers,
suppliers and/or distributors forming themselves into a joint venture
may be entertained, provided that the Philippine ownership thereof
shall be at least 60 percent.Joint venture is defined in the RFP as a
group of two or more manufacturers, suppliers and/or distributors that
intend to be jointly and severally responsible or liable for a particular
contract.[11]
Basically, the public bidding was to be conducted under a twoenvelope/two stage system. The bidders first envelope or the Eligibility
Envelope should establish the bidders eligibility to bid and its
qualifications to perform the acts if accepted. On the other hand, the
second envelope would be the Bid Envelope itself. The RFP outlines
the bidding procedures as follows:
25. Determination of Eligibility of Prospective Bidders
25.1 The eligibility envelopes of prospective Bidders shall be
opened first to determine their eligibility. In case any of the
requirements specified in Clause 20 is missing from the first bid
envelope, the BAC shall declare said prospective Bidder as
ineligible to bid. Bid envelopes of ineligible Bidders shall be
immediately returned unopened.
25.2 The eligibility of prospective Bidders shall be determined
using simple pass/fail criteria and shall be determined as either
eligible or ineligible. If the prospective Bidder is rated passed for
all the legal, technical and financial requirements, he shall be
considered eligible. If the prospective Bidder is rated failed in any
of the requirements, he shall be considered ineligible.
26. Bid Examination/Evaluation
26.1 The BAC will examine the Bids to determine whether they
are complete, whether any computational errors have been made,
whether required securities have been furnished, whether the
documents have been properly signed, and whether the Bids are
generally in order.
26.2 The BAC shall check the submitted documents of each Bidder
against the required documents enumerated under Clause 20, to
ascertain if they are all present in the Second bid envelope
(Technical Envelope). In case one (1) or more of the required
documents is missing, the BAC shall rate the Bid concerned as
failed and immediately return to the Bidder its Third bid envelope
(Financial Envelope) unopened. Otherwise, the BAC shall rate the
first bid envelope as passed.
26.3 The BAC shall immediately open the Financial Envelopes of
the Bidders whose Technical Envelopes were passed or rated on or
above the passing score. Only Bids that are determined to contain
all the bid requirements for both components shall be rated passed
and shall immediately be considered for evaluation and
comparison.

26.4 In the opening and examination of the Financial Envelope, the

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

Sr. They protested the award of the Contract to Respondent MPC due
to glaring irregularities in the manner in which the bidding process had
been conducted. Citing therein the noncompliance with eligibility as
well as technical and procedural requirements (many of which have
been discussed at length in the Petition), they sought a re-bidding.
In a letter-reply dated June 6, 2003, [15] the Comelec
chairman -- speaking through Atty. Jaime Paz, his head executive
assistant -- rejected the protest and declared that the award would
stand up to the strictest scrutiny.
Hence, the present Petition.[16]

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

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

27. Comparison of Bids

27.1 The bid price shall be deemed to embrace all costs, charges
and fees associated with carrying out all the elements of the
proposed Contract, including but not limited to, license fees,
freight charges and taxes.
27.2 The BAC shall establish the calculated prices of all Bids rated
passed and rank the same in ascending order.
xxxxxxxxx
29. Postqualification
29.1 The BAC will determine to its satisfaction whether the Bidder
selected as having submitted the lowest calculated bid is qualified
to satisfactorily perform the Contract.
29.2 The determination will take into account the Bidders
financial, technical and production capabilities/resources. It will be
based upon an examination of the documentary evidence of the
Bidders qualification submitted by the Bidder as well as such other
information as the BAC deems necessary and appropriate.
29.3 A bid determined as not substantially responsive will be
rejected by the BAC and may not subsequently be made responsive
by the Bidder by correction of the non-conformity.
29.4 The BAC may waive any informality or non-conformity or
irregularity in a bid which does not constitute a material deviation,
provided such waiver does not prejudice or affect the relative
ranking of any Bidder.
29.5 Should the BAC find that the Bidder complies with the legal,
financial and technical requirements, it shall make an affirmative
determination which shall be a prerequisite for award of the
Contract to the Bidder. Otherwise, it will make a negative
determination which will result in rejection of the Bidders bid, in
which event the BAC will proceed to the next lowest calculated
bid to make a similar determination of that Bidders capabilities to
perform satisfactorily.[12]
Out of the 57 bidders,[13] the BAC found MPC and the Total
Information Management Corporation (TIMC) eligible. For technical
evaluation, they were referred to the BACs Technical Working Group
(TWG) and the Department of Science and Technology (DOST).
In its Report on the Evaluation of the Technical Proposals on
Phase II, DOST said that both MPC and TIMC had obtained a number
of failed marks in the technical evaluation. Notwithstanding these
failures, Comelec en banc, on April 15, 2003, promulgated Resolution
No. 6074 awarding the project to MPC. The Commission publicized
this Resolution and the award of the project to MPC on May 16, 2003.
On May 29, 2003, five individuals and entities (including the
herein Petitioners Information Technology Foundation of the
Philippines, represented by its president, Alfredo M. Torres; and Ma.
Corazon Akol) wrote a letter[14] to Comelec Chairman Benjamin Abalos

1.
2.

3.
4.

The COMELEC awarded and contracted with a non-eligible entity;

xxx
Private respondents failed to pass the Technical Test as required in
the RFP. Notwithstanding, such failure was ignored. In effect, the
COMELEC changed the rules after the bidding in effect changing
the nature of the contract bidded upon.
Petitioners have locus standi.
Instant Petition is not premature. Direct resort to the Supreme Court
is justified.[17]

In the main, the substantive issue is whether the Commission on

Elections, the agency vested with the exclusive constitutional mandate
to oversee elections, gravely abused its discretion when, in the
exercise of its administrative functions, it awarded to MPC the contract
for the second phase of the comprehensive Automated Election
System.
Before discussing the validity of the award to MPC, however, we
deem it proper to first pass upon the procedural issues: the legal
standing of petitioners and the alleged prematurity of the Petition.

This Courts Ruling

The Petition is meritorious.

First Procedural Issue:

Locus Standi of Petitioners
Respondents chorus that petitioners do not possess locus
standi, inasmuch as they are not challenging the validity or
constitutionality of RA 8436. Moreover, petitioners supposedly admitted
during the Oral Argument that no law had been violated by the award
of the Contract. Furthermore, they allegedly have no actual and
material interest in the Contract and, hence, do not stand to be injured
or prejudiced on account of the award.
On the other hand, petitioners -- suing in their capacities as
taxpayers, registered voters and concerned citizens -- respond that the
issues central to this case are of transcendental importance and of
national interest. Allegedly, Comelecs flawed bidding and questionable
award of the Contract to an unqualified entity would impact directly on
the success or the failure of the electoral process. Thus, any taint on
the sanctity of the ballot as the expression of the will of the people
would inevitably affect their faith in the democratic system of
government. Petitioners further argue that the award of any contract for
automation involves disbursement of public funds in gargantuan
amounts; therefore, public interest requires that the laws governing the
transaction must be followed strictly.
We agree with petitioners. Our nations political and economic
future virtually hangs in the balance, pending the outcome of the 2004
elections. Hence, there can be no serious doubt that the subject matter
of this case is a matter of public concern and imbued with public
interest;[18] in other words, it is of paramount public interest [19] and
transcendental importance.[20] This fact alone would justify relaxing the

rule on legal standing, following the liberal policy of this Court

whenever a case involves an issue of overarching significance to our
society.[21] Petitioners legal standing should therefore be recognized
and upheld.
Moreover, this Court has held that taxpayers are allowed to sue
when there is a claim of illegal disbursement of public funds, [22] or if
public money is being deflected to any improper purpose;[23] or when
petitioners seek to restrain respondent from wasting public funds
through the enforcement of an invalid or unconstitutional law.[24] In the
instant case, individual petitioners, suing as taxpayers, assert a
material interest in seeing to it that public funds are properly and
lawfully used. In the Petition, they claim that the bidding was defective,
the winning bidder not a qualified entity, and the award of the Contract
contrary to law and regulation. Accordingly, they seek to restrain
respondents from implementing the Contract and, necessarily, from
making any unwarranted expenditure of public funds pursuant
thereto. Thus, we hold that petitioners possess locus standi.

Comelec chair, when by that time the Commission en banc (including

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

Some Observations on the BAC Report to the Comelec

Second Procedural Issue:
Alleged Prematurity Due to Non-Exhaustion
of Administrative Remedies

We shall return to this issue of alleged prematurity shortly, but at

this interstice, we would just want to put forward a few observations
regarding the BAC Report and the Comelec en bancs approval thereof.

Respondents claim that petitioners acted prematurely, since they

had not first utilized the protest mechanism available to them under RA
9184, the Government Procurement Reform Act, for the settlement of
disputes pertaining to procurement contracts.

First, Comelec contends that there was nothing unusual about

the fact that the Report submitted by the BAC came only after the
former had already awarded the Contract, because the latter had been
asked to render its report and recommendation orally during the
Commissions en banc session on April 15, 2003. Accordingly, Comelec
supposedly acted upon such oral recommendation and approved the
award to MPC on the same day, following which the recommendation
was subsequently reduced into writing on April 21, 2003. While not
entirely outside the realm of the possible, this interesting and unique
spiel does not speak well of the process that Comelec supposedly
went through in making a critical decision with respect to a multi-billionpeso contract.

Section 55 of RA 9184 states that protests against decisions of

the Bidding and Awards Committee in all stages of procurement may
be lodged with the head of the procuring entity by filing a verified
position paper and paying a protest fee. Section 57 of the same law
mandates that in no case shall any such protest stay or delay the
bidding process, but it must first be resolved before any award is
made.
On the other hand, Section 58 provides that court action may be
resorted to only after the protests contemplated by the statute shall
have been completed. Cases filed in violation of this process are to be
dismissed for lack of jurisdiction. Regional trial courts shall have
jurisdiction over final decisions of the head of the procuring entity, and
court actions shall be instituted pursuant to Rule 65 of the 1997 Rules
of Civil Procedure.
Respondents assert that throughout the bidding process,
petitioners never questioned the BAC Report finding MPC eligible to
bid and recommending the award of the Contract to it
(MPC). According to respondents, the Report should have been
appealed to the Comelec en banc, pursuant to the aforementioned
sections of RA 9184. In the absence of such appeal, the determination
and recommendation of the BAC had become final.
The Court is not persuaded.
Respondent Comelec came out with its en banc Resolution No.
6074 dated April 15, 2003, awarding the project to Respondent MPC
even before the BAC managed to issue its written report and
recommendation on April 21, 2003. Thus, how could petitioners have
appealed the BACs recommendation or report to the head of the
procuring entity (the chairman of Comelec), when the Comelec en
banc had already approved the award of the contract to MPC even
before petitioners learned of the BAC recommendation?
It is claimed[25] by Comelec that during its April 15, 2003 session,
it received and approved the verbal report and recommendation of the
BAC for the award of the Contract to MPC, and that the BAC
subsequently re-affirmed its verbal report and recommendation by
submitting it in writing on April 21, 2003. Respondents insist that the
law does not require that the BAC Report be in writing before Comelec
can act thereon; therefore, there is allegedly nothing irregular about the
Report as well as the en banc Resolution.
However, it is obvious that petitioners could have appealed the
BACs report and recommendation to the head of the procuring entity
(the Comelec chair) only upon their discovery thereof, which at the
very earliest would have been on April 21, 2003, when the BAC
actually put its report in writing and finally released it. Even then, what
would have been the use of protesting/appealing the report to the

We can imagine that anyone else standing in the shoes of the

Honorable Commissioners would have been extremely conscious of
the overarching need for utter transparency. They would have
scrupulously avoided the slightest hint of impropriety, preferring to
maintain an exacting regularity in the performance of their duties,
instead of trying to break a speed record in the award of multi-billionpeso contracts. After all, between April 15 and April 21 were a mere six
(6) days. Could Comelec not have waited out six more days for the
written report of the BAC, instead of rushing pell-mell into the arms of
MPC? Certainly, respondents never cared to explain the nature of the
Commissions dire need to act immediately without awaiting the formal,
written BAC Report.
In short, the Court finds it difficult to reconcile the uncommon
dispatch with which Comelec acted to approve the multi-billion-peso
deal, with its claim of having been impelled by only the purest and
most noble of motives.
At any rate, as will be discussed later on, several other factors
combine to lend negative credence to Comelecs tale.
Second, without necessarily ascribing any premature malice or
premeditation on the part of the Comelec officials involved, it should
nevertheless be conceded that this cart-before-the-horse maneuver
(awarding of the Contract ahead of the BACs written report) would
definitely serve as a clever and effective way of averting and frustrating
any impending protest under Section 55.
Having made the foregoing observations, we now go back to the
question of exhausting administrative remedies. Respondents may not
have realized it, but the letter addressed to Chairman Benjamin Abalos
Sr. dated May 29, 2003[28] serves to eliminate the prematurity issue as
it was an actual written protest against the decision of the poll body to
award the Contract. The letter was signed by/for, inter alia, two of
herein petitioners: the Information Technology Foundation of the
Philippines, represented by its president, Alfredo M. Torres; and Ma.
Corazon Akol.
Such letter-protest is sufficient compliance with the requirement
to exhaust administrative remedies particularly because it hews closely
to the procedure outlined in Section 55 of RA 9184.

And even without that May 29, 2003 letter-protest, the Court still
holds that petitioners need not exhaust administrative remedies in the
light of Paat v. Court of Appeals.[29] Paat enumerates the instances
when the rule on exhaustion of administrative remedies may be
disregarded, as follows:
(1)
(2)
(3)

when there is a violation of due process,

when the issue involved is purely a legal question,
when the administrative action is patently illegal
amounting to lack or excess of jurisdiction,
(4) when there is estoppel on the part of the administrative
agency concerned,
(5) when there is irreparable injury,
(6) when the respondent is a department secretary whose acts
as an alter ego of the President bears the implied and
assumed approval of the latter,
(7) when to require exhaustion of administrative remedies
would be unreasonable,
(8) when it would amount to a nullification of a claim,
(9) when the subject matter is a private land in land case
proceedings,
(10) when the rule does not provide a plain, speedy and
adequate remedy, and
(11) when there are circumstances indicating the urgency of
judicial intervention.[30]
The present controversy precisely falls within the exceptions
listed as Nos. 7, 10 and 11: (7) when to require exhaustion of
administrative remedies would be unreasonable; (10) when the rule
does not provide a plain, speedy and adequate remedy, and (11) when
there are circumstances indicating the urgency of judicial intervention.
As already stated, Comelec itself made the exhaustion of
administrative remedies legally impossible or, at the very least,
unreasonable.
In any event, the peculiar circumstances surrounding the
unconventional rendition of the BAC Report and the precipitate
awarding of the Contract by the Comelec en banc -- plus the fact that it
was racing to have its Contract with MPC implemented in time for the
elections in May 2004 (barely four months away) -- have combined to
bring about the urgent need for judicial intervention, thus prompting
this Court to dispense with the procedural exhaustion of administrative
remedies in this case.

A.
B.
C.

Matters pertaining to the identity, existence and eligibility of

MPC as a bidder
Failure of the automated counting machines (ACMs) to pass the
DOST technical tests
Remedial measures and re-testings undertaken by Comelec and
DOST after the award, and their effect on the present controversy

A.
Failure to Establish the Identity, Existence and Eligibility of the
Alleged Consortium as a Bidder
On the question of the identity and the existence of the real
bidder, respondents insist that, contrary to petitioners allegations, the
bidder was not Mega Pacific eSolutions, Inc. (MPEI), which was
incorporated only on February 27, 2003, or 11 days prior to the bidding
itself. Rather, the bidder was Mega Pacific Consortium (MPC), of which
MPEI was but a part. As proof thereof, they point to the March 7, 2003
letter of intent to bid, signed by the president of MPEI allegedly for and
on behalf of MPC. They also call attention to the official receipt issued
to MPC, acknowledging payment for the bidding documents, as proof
that it was the consortium that participated in the bidding process.
We do not agree. The March 7, 2003 letter, signed by only one
signatory -- Willy U. Yu, President, Mega Pacific eSolutions, Inc., (Lead
Company/ Proponent) For: Mega Pacific Consortium -- and without any
further proof, does not by itself prove the existence of the
consortium. It does not show that MPEI or its president have been duly
pre-authorized by the other members of the putative consortium to
represent them, to bid on their collective behalf and, more important, to
commit them jointly and severally to the bid undertakings. The letter is
purely self-serving and uncorroborated.
Neither does an official receipt issued to MPC, acknowledging
payment for the bidding documents, constitute proof that it was the
purported consortium that participated in the bidding. Such receipts are
issued by cashiers without any legally sufficient inquiry as to the real
identity or existence of the supposed payor.
To assure itself properly of the due existence (as well as
eligibility and qualification) of the putative consortium, Comelecs BAC
should have examined the bidding documents submitted on behalf of
MPC. They would have easily discovered the following fatal flaws.
Two-Envelope, Two-Stage System

Main Substantive Issue:

Validity of the Award to MPC
We come now to the meat of the controversy. Petitioners
contend that the award is invalid, since Comelec gravely abused its
discretion when it did the following:
1.
2.
3.

4.

5.

6.

Awarded the Contract to MPC though it did not even

participate in the bidding
Allowed MPEI to participate in the bidding despite its
failure to meet the mandatory eligibility requirements
Issued its Resolution of April 15, 2003 awarding the
Contract to MPC despite the issuance by the BAC of its
Report, which formed the basis of the assailed
Resolution, only on April 21, 2003[31]
Awarded the Contract, notwithstanding the fact that
during the bidding process, there were violations of the
mandatory requirements of RA 8436 as well as those
set forth in Comelecs own Request for Proposal on the
automated election system
Refused to declare a failed bidding and to conduct a rebidding despite the failure of the bidders to pass the
technical tests conducted by the Department of Science
and Technology
Failed to follow strictly the provisions of RA 8436 in the
conduct of the bidding for the automated counting
machines

After reviewing the slew of pleadings as well as the matters

raised during the Oral Argument, the Court deems it sufficient to focus
discussion on the following major areas of concern that impinge on the
issue of grave abuse of discretion:

As stated earlier in our factual presentation, the public bidding

system designed by Comelec under its RFP (Request for Proposal for
the Automation of the 2004 Election) mandated the use of a twoenvelope, two-stage system. A bidders first envelope (Eligibility
Envelope) was meant to establish its eligibility to bid and its
qualifications and capacity to perform the contract if its bid was
accepted, while the second envelope would be the Bid Envelope itself.
The Eligibility Envelope was to contain legal documents such as
articles of incorporation, business registrations, licenses and permits,
mayors permit, VAT certification, and so forth; technical
documents containing documentary evidence to establish the track
record of the bidder and its technical and production capabilities to
perform the contract; and financial documents, including audited
financial statements for the last three years, to establish the bidders
financial capacity.
In the case of a consortium or joint venture desirous of
participating in the bidding, it goes without saying that the Eligibility
Envelope would necessarily have to include a copy of the joint venture
agreement, the consortium agreement or memorandum of agreement
-- or a business plan or some other instrument of similar import -establishing the due existence, composition and scope of such
aggrupation. Otherwise, how would Comelec know who it was dealing
with, and whether these parties are qualified and capable of delivering
the products and services being offered for bidding?[32]
In the instant case, no such instrument was submitted to
Comelec during the bidding process. This fact can be conclusively
ascertained by scrutinizing the two-inch thick Eligibility Requirements
file submitted by Comelec last October 9, 2003, in partial compliance
with this Courts instructions given during the Oral Argument. This file
purports to replicate the eligibility documents originally submitted to

Comelec by MPEI allegedly on behalf of MPC, in connection with the

bidding conducted in March 2003. Included in the file are the
incorporation papers and financial statements of the members of the
supposed consortium and certain certificates, licenses and permits
issued to them.
However, there is no sign whatsoever of any joint
venture agreement, consortium agreement, memorandum of
agreement, or business plan executed among the members of the purported
consortium.
The only logical conclusion is that no such agreement was ever
submitted to the Comelec for its consideration, as part of the bidding
process.
It thus follows that, prior the award of the Contract, there was no
documentary or other basis for Comelec to conclude that a consortium
had actually been formed amongst MPEI, SK C&C and WeSolv, along
with Election.com and ePLDT.[33] Neither was there anything to indicate
the exact relationships between and among these firms; their diverse
roles, undertakings and prestations, if any, relative to the prosecution
of the project, the extent of their respective investments (if any) in the
supposed consortium or in the project; and the precise nature and
extent of their respective liabilities with respect to the contract being
offered for bidding. And apart from the self-serving letter of March 7,
2003, there was not even any indication that MPEI was the lead
company duly authorized to act on behalf of the others.
So, it necessarily follows that, during the bidding process,
Comelec had no basis at all for determining that the alleged
consortium really existed and was eligible and qualified; and that the
arrangements among the members were satisfactory and sufficient to
ensure delivery on the Contract and to protect the governments
interest.

the project by several members of the claimed consortium.[38] A short

while later, he admitted that the Commission had not taken a look at
the agreement (if any).[39]
He tried to justify his position by claiming that he was not a
member of the BAC. Neither was he the commissioner-in-charge of the
Phase II Modernization project (the automated election system); but
that, in any case, the BAC and the Phase II Modernization Project
Team did look into the aspect of the composition of the consortium.
It seems to the Court, though, that even if the BAC or the Phase
II Team had taken charge of evaluating the eligibility, qualifications and
credentials of the consortium-bidder, still, in all probability, the former
would have referred the task to Commissioner Tuason, head of
Comelecs Legal Department. That task was the appreciation and
evaluation of the legal effects and consequences of the terms,
conditions, stipulations and covenants contained in any joint venture
agreement, consortium agreement or a similar document -- assuming
of course that any of these was available at the time. The fact that
Commissioner Tuason was barely aware of the situation bespeaks the
complete absence of such document, or the utter failure or neglect of
the Comelec to examine it -- assuming it was available at all -- at the
time the award was made on April 15, 2003.
In any event, the Court notes for the record that Commissioner
Tuason basically contradicted his statements in open court about there
being one written agreement among all the consortium members,
when he subsequently referred[40] to the four (4) Memoranda of
Agreement (MOAs) executed by them.[41]

Notwithstanding such deficiencies, Comelec still deemed the

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

At this juncture, one might ask: What, then, if there are four
MOAs instead of one or none at all? Isnt it enough that there are these
corporations coming together to carry out the automation project? Isnt
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?

Inasmuch as Comelec should not have considered MPEI et al.

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

The problem is not that there are four agreements instead of

only one. The problem is that Comelec never bothered to check. It
never based its decision on documents or other proof that would
concretely establish the existence of the claimed consortium or joint
venture or agglomeration. It relied merely on the self-serving
representation in an uncorroborated letter signed by only one
individual, claiming that his company represented a consortium of
several different corporations. It concluded forthwith that a consortium
indeed existed, composed of such and such members, and thereafter
declared that the entity was eligible to bid.

Hence, had the proponent MPEI been evaluated based solely on

its own experience, financial and operational track record or lack
thereof, it would surely not have qualified and would have been
immediately considered ineligible to bid, as respondents readily admit.

True, copies of financial statements and incorporation papers of

the alleged consortium members were submitted. But these papers did
not establish the existence of a consortium, as they could have been
provided by the companies concerned for purposes other than to prove
that they were part of a consortium or joint venture. For instance, the
papers may have been intended to show that those companies were
each qualified to be a sub-contractor (and nothing more) in a major
project. Those documents did not by themselves support the
assumption that a consortium or joint venture existed among the
companies.

At any rate, it is clear that Comelec gravely abused its

discretion in arbitrarily failing to observe its own rules, policies and
guidelines with respect to the bidding process, thereby negating a fair,
honest and competitive bidding.

Commissioners Not Aware of Consortium

In this regard, the Court is beguiled by the statements of
Commissioner Florentino Tuason Jr., given in open court during the
Oral Argument last October 7, 2003. The good commissioner affirmed
that he was aware, of his own personal knowledge, that there had
indeed been a written agreement among the consortium members,
[34]
although it was an internal matter among them, [35] and of the fact
that it would be presented by counsel for private respondent.[36]
However, under questioning by Chief Justice Hilario G.
Davide Jr. and Justice Jose C. Vitug, Commissioner Tuason in effect
admitted that, while he was the commissioner-in-charge of Comelecs
Legal Department, he had never seen, even up to that late date, the
agreement he spoke of.[37] Under further questioning, he was likewise
unable to provide any information regarding the amounts invested into

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 neverthelessassumed 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
formers own bidding rules and procedures contained in its
RFP. Therein lies Comelecs grave abuse of discretion.

Sufficiency of the Four Agreements

Instead of one multilateral agreement executed by, and effective
and binding on, all the five consortium members -- as earlier claimed
by Commissioner Tuason in open court -- it turns out that what was

actually executed were four (4) separate and distinct bilateral

Agreements.[42] Obviously, Comelec was furnished copies of these
Agreements only after the bidding process had been terminated, as
these were not included in the Eligibility Documents.These Agreements
are as follows:
A Memorandum of Agreement between MPEI and SK
C&C
A Memorandum of Agreement between MPEI and
WeSolv
A Teaming Agreement
Election.com Ltd.

between

MPEI

and

A Teaming Agreement between MPEI and ePLDT.

In sum, each of the four different and separate bilateral
Agreements is valid and binding only between MPEI and the other
contracting party, leaving the other consortium members total
strangers thereto. Under this setup, MPEI dealt separately with each of
the members, and the latter (WeSolv, SK C&C, Election.com, and
ePLDT) in turn had nothing to do with one another, each dealing only
with MPEI.
Respondents assert that these four Agreements were sufficient
for the purpose of enabling the corporations to still qualify (even at that
late stage) as a consortium or joint venture, since the first two
Agreements had allegedly set forth the joint and several undertakings
among the parties, whereas the latter two clarified the parties
respective roles with regard to the Project, with MPEI being the
independent contractor and Election.com and ePLDT the
subcontractors.
Additionally, the use of the phrase particular contract in the
Comelecs Request for Proposal (RFP), in connection with the joint and
several liabilities of companies in a joint venture, is taken by them to
mean that all the members of the joint venture need not be solidarily
liable for the entire project or joint venture, because it is sufficient that
the lead company and the member in charge of a particular contract or
aspect of the joint venture agree to be solidarily liable.
At this point, it must be stressed most vigorously that the
submission of the four bilateral Agreements to Comelec after the end
of the bidding process did nothing to eliminate the grave abuse of
discretion it had already committed on April 15, 2003.

Deficiencies Have Not Been Cured

In any event, it is also claimed that the automation Contract
awarded by Comelec incorporates all documents executed by the
consortium members, even if these documents are not referred to
therein. The basis of this assertion appears to be the passages from
Section 1.4 of the Contract, which is reproduced as follows:
All Contract Documents shall form part of the Contract even if they or any
one of them is not referred to or mentioned in the Contract as forming a part
thereof. Each of the Contract Documents shall be mutually complementary
and explanatory of each other such that what is noted in one although not
shown in the other shall be considered contained in all, and what is required
by any one shall be as binding as if required by all, unless one item is a
correction of the other.
The intent of the Contract Documents is the proper, satisfactory and timely
execution and completion of the Project, in accordance with the Contract
Documents. Consequently, all items necessary for the proper and timely
execution and completion of the Project shall be deemed included in the
Contract.
Thus, it is argued that whatever perceived deficiencies there
were in the supplementary contracts -- those entered into by MPEI and
the other members of the consortium as regards their joint and several
undertakings -- have been cured. Better still, such deficiencies have
supposedly been prevented from arising as a result of the abovequoted provisions, from which it can be immediately established that
each of the members of MPC assumes the same joint and several
liability as the other members.

The foregoing argument is unpersuasive. First, the contract

being referred to, entitled The Automated Counting and Canvassing
Project Contract, is between Comelec and MPEI, not the alleged
consortium, MPC. To repeat, it is MPEI -- not MPC -- that is a party to
the Contract. Nowhere in that Contract is there any mention of a
consortium or joint venture, of members thereof, much less of joint and
several liability. Supposedly executed sometime in May 2003,[43] the
Contract bears a notarization date of June 30, 2003, and contains the
signature of Willy U. Yu signing as president of MPEI (not for and on
behalf of MPC), along with that of the Comelec chair. It provides in
Section 3.2 that MPEI (not MPC) is to supply the Equipment and
perform the Services under the Contract, in accordance with the
appendices thereof; nothing whatsoever is said about any consortium
or joint venture or partnership.
Second, the portions of Section 1.4 of the Contract reproduced
above do not have the effect of curing (much less preventing)
deficiencies in the bilateral agreements entered into by MPEI with the
other members of the consortium, with respect to their joint and several
liabilities. The term Contract Documents, as used in the quoted
passages of Section 1.4, has a well-defined meaning and actually
refers only to the following documents:
The Contract itself along with its appendices
The Request for Proposal (also known as Terms of
Reference) issued by the Comelec, including the
Tender Inquiries and Bid Bulletins
The Tender Proposal submitted by MPEI
In other words, the term Contract Documents cannot be
understood as referring to or including the MOAs and the Teaming
Agreements entered into by MPEI with SK C&C, WeSolv, Election.com
and ePLDT. This much is very clear and admits of no debate. The
attempt to use the provisions of Section 1.4 to shore up the MOAs and
the Teaming Agreements is simply unwarranted.
Third and last, we fail to see how respondents can arrive at the
conclusion that, from the above-quoted provisions, it can be
immediately established that each of the members of MPC assumes
the same joint and several liability as the other members. Earlier,
respondents claimed exactly the opposite -- that the two MOAs
(between MPEI and SK C&C, and between MPEI and WeSolv) had set
forth the joint and several undertakings among the parties;whereas the
two Teaming Agreements clarified the parties respective roles with
regard to the Project, with MPEI being the independent contractor and
Election.com and ePLDT the subcontractors.
Obviously, given the differences in their relationships, their
respective liabilities cannot be the same. Precisely, the very clear
terms and stipulations contained in the MOAs and the Teaming
Agreements -- entered into by MPEI with SK C&C, WeSolv,
Election.com and ePLDT -- negate the idea that these members are on
a par with one another and are, as such, assuming the same joint and
several liability.
Moreover, respondents have earlier seized upon the use of the
term particular contract in the Comelecs Request for Proposal (RFP),
in order to argue that all the members of the joint venture did not need
to be solidarily liable for the entire project or joint venture. It was
sufficient that the lead company and the member in charge of a
particular contract or aspect of the joint venture would agree to be
solidarily liable. The glaring lack of consistency leaves us at a loss. Are
respondents trying to establish the same joint and solidary liability
among all the members or not?

Enforcement of Liabilities Problematic

Next, it is also maintained that the automation Contract between
Comelec and the MPEI confirms the solidary undertaking of the lead
company and the consortium member concerned for each particular
Contract, inasmuch as the position of MPEI and anyone else
performing the services contemplated under the Contract is described
therein as that of an independent contractor.
The Court does not see, however, how this conclusion was
arrived at. In the first place, the contractual provision being relied upon

by respondents is Article 14, Independent Contractors, which

states: Nothing contained herein shall be construed as establishing or
creating between the COMELEC and MEGA the relationship of
employee and employer or principal and agent, it being understood
that the position of MEGA and of anyone performing the Services
contemplated under this Contract, is that of an independent contractor.
Obviously, the intent behind the provision was simply to avoid
the creation of an employer-employee or a principal-agent relationship
and the complications that it would produce. Hence, the Article states
that the role or position of MPEI, or anyone else performing on its
behalf, is that of an independent contractor. It is obvious to the Court
that respondents are stretching matters too far when they claim that,
because of this provision, the Contract in effect confirms the solidary
undertaking of the lead company and the consortium member
concerned for the particular phase of the project. This assertion is an
absolute non sequitur.

Enforcement of Liabilities Under the Civil Code Not Possible

In any event, it is claimed that Comelec may still enforce the
liability of the consortium members under the Civil Code provisions
on partnership, reasoning that MPEI et al. represented themselves as
partners and members of MPC for purposes of bidding for the
Project. They are, therefore, liable to the Comelec to the extent that
the latter relied upon such representation. Their liability as partners is
solidary with respect to everything chargeable to the partnership under
certain conditions.
The Court has two points to make with respect to this
argument. First, it must be recalled that SK C&C, WeSolv,
Election.com and ePLDT never represented themselves as partners
and members of MPC, whether for purposes of bidding or for
something else. It was MPEI alone that represented them to be
members of a consortium it supposedly headed. Thus, its acts may not
necessarily be held against the other members.
Second, this argument of the OSG in its Memorandum [44] might
possibly apply in the absence of a joint venture agreement or some
other writing that discloses the relationship of the members with one
another. But precisely, this case does not deal with a situation in which
there is nothing in writing to serve as reference, leaving Comelec to
rely on mere representations and therefore justifying a falling back on
the rules on partnership. For, again, the terms and stipulations of the
MOAs entered into by MPEI with SK C&C and WeSolv, as well as the
Teaming Agreements of MPEI with Election.com and ePLDT (copies of
which have been furnished the Comelec) are very clear with respect to
the extent and the limitations of the firms respective liabilities.
In the case of WeSolv and SK C&C, their MOAs state that their
liabilities, while joint and several with MPEI, are limited only to the
particular areas of work wherein their services are engaged or their
products utilized. As for Election.com and ePLDT, their separate
Teaming Agreements specifically ascribe to them the role of
subcontractor vis--vis MPEI as contractor and, based on the terms of
their particular agreements, neither Election.com nor ePLDT is, with
MPEI, jointly and severally liable to Comelec.[45] It follows then that in
the instant case, there is no justification for anyone, much less
Comelec, to resort to the rules on partnership and partners liabilities.

eligibility; (2) that the sheer enormity of the project renders it

improbable to expect any single entity to be able to comply with all the
eligibility requirements and undertake the project by itself; and (3) that,
as argued by the OSG, the RFP allows bids from manufacturers,
suppliers and/or distributors that have formed themselves into a joint
venture, in recognition of the virtual impossibility of a single entitys
ability to respond to the Invitation to Bid.
Additionally, argues the Comelec, the Implementing Rules and
Regulations of RA 6957 (the Build-Operate-Transfer Law) as amended
by RA 7718 would be applicable, as proponents of BOT projects
usually form joint ventures or consortiums. Under the IRR, a joint
venture/consortium proponent shall be evaluated based on the
individual or the collective experience of the member-firms of the joint
venture/consortium and of the contractors the proponent has engaged
for the project.
Unfortunately, this argument seems to assume that the collective
nature of the undertaking of the members of MPC, their contribution of
assets and sharing of risks, and the community of their interest in the
performance of the Contract entitle MPC to be treated as a joint
venture or consortium; and to be evaluated accordingly on the basis of
the members collective qualifications when, in fact, the evidence
before the Court suggest otherwise.
This Court in Kilosbayan v. Guingona[46] defined joint venture as
an association of persons or companies jointly undertaking some
commercial enterprise; generally, all contribute assets and share
risks. It requires a community of interest in the performance of the
subject matter, a right to direct and govern the policy in connection
therewith, and [a] duty, which may be altered by agreement to share
both in profit and losses.
Going back to the instant case, it should be recalled that the
automation Contract with Comelec was not executed by the
consortium MPC -- or by MPEI for and on behalf of MPC -- but by
MPEI, period. The said Contract containsno mention whatsoever of
any consortium or members thereof. This fact alone seems to
contradict all the suppositions about a joint undertaking that would
normally apply to a joint venture or consortium: that it is a commercial
enterprise involving a community of interest, a sharing of risks, profits
and losses, and so on.
Now let us consider the four bilateral Agreements, starting with
the Memorandum of Agreement between MPEI and WeSolv Open
Computing, Inc., dated March 5, 2003. The body of the MOA consists
of just seven (7) short paragraphs that would easily fit in one page. It
reads as follows:
1.
2.

3.
4.
5.

Eligibility of a Consortium Based on the Collective Qualifications

of Its Members

6.

Respondents declare that, for purposes of assessing the

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

7.

Thus, according to respondents, the collective nature of the

undertaking of the members of MPC, their contribution of assets and
sharing of risks, and the community of their interest in the performance
of the Contract lead to these reasonable conclusions: (1) that
their collective qualifications should be the basis for evaluating their

The parties agree to cooperate in successfully implementing the

Project in the substance and form as may be most beneficial to
both parties and other subcontractors involved in the Project.
Mega Pacific shall be responsible for any contract negotiations and
signing with the COMELEC and, subject to the latters approval,
agrees to give WeSolv an opportunity to be present at meetings
with the COMELEC concerning WeSolvs portion of the Project.
WeSolv shall be jointly and severally liable with Mega Pacific only
for the particular products and/or services supplied by the former
for the Project.
Each party shall bear its own costs and expenses relative to this
agreement unless otherwise agreed upon by the parties.
The parties undertake to do all acts and such other things incidental
to, necessary or desirable or the attainment of the objectives and
purposes of this Agreement.
In the event that the parties fail to agree on the terms and
conditions of the supply of the products and services including but
not limited to the scope of the products and services to be supplied
and payment terms, WeSolv shall cease to be bound by its
obligations stated in the aforementioned paragraphs.
Any dispute arising from this Agreement shall be settled amicably
by the parties whenever possible. Should the parties be unable to
do so, the parties hereby agree to settle their dispute through
arbitration in accordance with the existing laws of the Republic of
the Philippines. (Underscoring supplied.)

Even shorter is the Memorandum of Agreement between MPEI

and SK C&C Co. Ltd., dated March 9, 2003, the body of which consists
of only six (6) paragraphs, which we quote:

1.

2.

3.

4.
5.
6.

All parties agree to cooperate in achieving the Consortiums

objective of successfully implementing the Project in the substance
and form as may be most beneficial to the Consortium members
and in accordance w/ the demand of the RFP.
Mega Pacific shall have full powers and authority to represent the
Consortium with the Comelec, and to enter and sign, for and in
behalf of its members any and all agreement/s which maybe
required in the implementation of the Project.
Each of the individual members of the Consortium shall be jointly
and severally liable with the Lead Firm for the particular products
and/or services supplied by such individual member for the
project, in accordance with their respective undertaking or sphere
of responsibility.
Each party shall bear its own costs and expenses relative to this
agreement unless otherwise agreed upon by the parties.
The parties undertake to do all acts and such other things incidental
to, necessary or desirable for the attainment of the objectives and
purposes of this Agreement.
Any dispute arising from this Agreement shall be settled amicably
by the parties whenever possible. Should the parties be unable to
do so, the parties hereby agree to settle their dispute through
arbitration in accordance with the existing laws of the Republic of
the Philippines. (Underscoring supplied.)

It will be noted that the two Agreements quoted above are very
similar in wording. Neither of them contains any specifics or details as
to the exact nature and scope of the parties respective undertakings,
performances and deliverables under the Agreement with respect to
the automation project. Likewise, the two Agreements are quite bereft
of pesos-and-centavos data as to the amount of investments each
party contributes, its respective share in the revenues and/or profit
from the Contract with Comelec, and so forth -- all of which are normal
for agreements of this nature. Yet, according to public and private
respondents, the participation of MPEI, WeSolv and SK C&C
comprises fully 90 percent of the entire undertaking with respect to the
election automation project, which is worth about P1.3 billion.
As for Election.com and ePLDT, the separate Teaming
Agreements they entered into with MPEI for the remaining 10 percent
of the entire project undertaking are ironically much longer and more
detailed than the MOAs discussed earlier. Although specifically
ascribing to them the role of subcontractor vis--vis MPEI as contractor,
these Agreements are, however, completely devoid of any pricing data
or payment terms. Even the appended Schedules supposedly
containing prices of goods and services are shorn of any price
data. Again, as mentioned earlier, based on the terms of their particular
Agreements, neither Election.com nor ePLDT -- with MPEI -- is jointly
and severally liable to Comelec.
It is difficult to imagine how these bare Agreements -- especially
the first two -- could be implemented in practice; and how a dispute
between the parties or a claim by Comelec against them, for instance,
could be resolved without lengthy and debilitating litigations. Absent
any clear-cut statement as to the exact nature and scope of the parties
respective undertakings, commitments, deliverables and covenants,
one party or another can easily dodge its obligation and deny or
contest its liability under the Agreement; or claim that it is the other
party that should have delivered but failed to.
Likewise, in the absence of definite indicators as to the amount
of investments to be contributed by each party, disbursements for
expenses, the parties respective shares in the profits and the like, it
seems to the Court that this situation could readily give rise to all kinds
of misunderstandings and disagreements over money matters.
Under such a scenario, it will be extremely difficult for Comelec
to enforce the supposed joint and several liabilities of the members of
the consortium. The Court is not even mentioning the possibility of a
situation arising from a failure of WeSolv and MPEI to agree on the
scope, the terms and the conditions for the supply of the products and
services under the Agreement. In that situation, by virtue of paragraph
6 of its MOA, WeSolv would perforce cease to be bound by its
obligations -- including its joint and solidary liability with MPEI under
the MOA -- and could forthwith disengage from the project. Effectively,
WeSolv could at any time unilaterally exit from its MOA with MPEI by
simply failing to agree. Where would that outcome leave MPEI and
Comelec?

To the Court, this strange and beguiling arrangement of MPEI

with the other companies does not qualify them to be treated as a
consortium or joint venture, at least of the type that government
agencies like the Comelec should be dealing with. With more reason is
it unable to agree to the proposal to evaluate the members of MPC on
a collective basis.
In any event, the MPC members claim to be a joint
venture/consortium; and respondents have consistently been arguing
that the IRR for RA 6957, as amended, should be applied to the instant
case in order to allow a collective evaluation of consortium
members. Surprisingly, considering these facts, respondents have not
deemed it necessary for MPC members to comply with Section 5.4 (a)
(iii) of the IRR for RA 6957 as amended.
According to the aforementioned provision, if the project
proponent is a joint venture or consortium, the members or participants
thereof are required to submit a sworn statement that, if awarded the
contract, they shall bind themselves to be jointly, severally and
solidarily liable for the project proponents obligations thereunder. This
provision was supposed to mirror Section 5 of RA 6957, as amended,
which states: In all cases, a consortium that participates in a bid must
present proof that the members of the consortium have bound
themselves jointly and severally to assume responsibility for any
project. The withdrawal of any member of the consortium prior to the
implementation of the project could be a ground for the cancellation of
the contract.
The Court has certainly not seen any joint and several
undertaking by the MPC members that even approximates the tenor of
that which is described above. We fail to see why respondents should
invoke the IRR if it is for their benefit, but refuse to comply with it
otherwise.

B.
DOST Technical Tests Flunked by the
Automated Counting Machines
Let us now move to the second subtopic, which deals with the
substantive issue: the ACMs failure to pass the tests of the Department
of Science and Technology (DOST).
After respondent consortium and the other bidder, TIM, had
submitted their respective bids on March 10, 2003, the Comelecs BAC
-- through its Technical Working Group (TWG) and the DOST -evaluated their technical proposals. Requirements that were highly
technical in nature and that required the use of certain equipment in
the evaluation process were referred to the DOST for testing. The
Department reported thus:

TEST RESULTS MATRIX[47]

[Technical Evaluation of Automated Counting Machine]
KEY REQUIREMENTS
[QUESTIONS]

1.

Does the machine have

an accuracy rating of at
least 99.995 percent

MEGA-PACIFIC
CONSORTIUM

TOTAL
INFORMATION
MANAGEMENT

YES

YE
S

NO

NO

At
COLD environmental
condition
At NORMAL
environmental conditio
ns

At HARSH
environmental
conditions
2.

3.

4.

Accurately records and

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

Prints election returns

without any loss of date
during generation of
such reports?

Uninterruptible backup power system, that

will engage
immediately to allow
operation of at least 10
minutes after outage,
power surge or
abnormal electrical
occurrences?

Note: This
particular
requiremen
t needs
further
verificatio
n

400mHz?

11. Port to allow use of dotmatrix printers?

12. Generates printouts of

the election returns in a
format specified by the
COMELEC?

Generates printouts
In format specified by
COMELEC

5.

6.

Machine reads twosided ballots in one

pass?

Machine can detect

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

Note: This
particular
requiremen
t needs
further
verificatio
n

13. Prints election returns

without any loss of data
during generation of
such report?

14. Generates an audit trail

of the counting
machine, both hard
copy and soft copy?

Hard copy

Soft copy
7.

Stores results of
counted votes by
precinct in external
(removable) storage
device?

Note: This
particular
requiremen
t needs
further
verificatio
n

Note: This
particular
requiremen
t needs
further
verificatio
n

8.

9.

Data stored in external

media is encrypted?

Physical key or similar

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

10. CPU speed is at least

Note: This
particular
requiremen
t needs
further
verificatio
n

15. Does the City/Municipal

Canvassing System
consolidate results from
all precincts within it
using the encrypted soft
copy of the data
generated by the
counting machine and
stored on the
removable data storage
device?
16. Does the City/Municipal
Canvassing System

Note: This
particular
requiremen
t needs
further
verificatio
n

consolidate results from

all precincts within it
using the encrypted soft
copy of the data
generated by the
counting machine and
transmitted through an
electronic transmission
media?
17. Does the system output a
Zero City/Municipal
Canvass Report, which
is printed on election
day prior to the conduct
of the actual canvass
operation, that shows
that all totals for all the
votes for all the
candidates and other
information, are indeed
zero or null?

Note: This
particular
requiremen
t needs
further
verificatio
n

Note: This
particular
requiremen
t needs
further
verificatio
n

18. Does the system

consolidate results from
all precincts in the
city/municipality using
the data storage device
coming from the
counting machine?

Note: This
particular
requiremen
t needs
further
verificatio
n

particular
requiremen
t needs
further
verificatio
n

Note: This
particular
requiremen
t needs
further
verificatio
n

22. Can the result of the

city/municipal
consolidation be stored
in a data storage
device?

23. Does the system

consolidate results from
all precincts in the
provincial/district/
national using the data
storage device from
different levels of
consolidation?

24. Is the system 100%

accurate?

Note: This
particular
requiremen
t needs
further
verificatio
n

Note: This
particular
requiremen
t needs
further
verificatio
n

Note: This
particular
requiremen
t needs
further
verificatio
n

19. Is the machine 100%

accurate?

Note: This
particular
requiremen
t needs
further
verificatio
n

20. Is the Program able to

detect previously
downloaded precinct
results and prevent
these from being
inputted again into the
System?

21. The System is able to

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

Note: This
particular
requiremen
t needs
further
verificatio
n

25. Is the Program able to

detect previously
downloaded precinct
results and prevent
these from being
inputted again into the
System?

Note: This
particular
requiremen
t needs
further
verificatio
n

26. The System is able to

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

Prints specified reports

Prints specified
reports

Audit Trail

Audit Trail

Note: This

Note: This
particular

requiremen
t needs
further
verificatio
n

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

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

OPENING OF FINANCIAL BIDS

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

27. Can the results of the

provincial/district/natio
nal consolidation be
stored in a data storage
device?

Note: This
particular
requiremen
t needs
further
verificatio
n

According to respondents, it was only after the TWG and the

DOST had conducted their separate tests and submitted their
respective reports that the BAC, on the basis of these reports
formulated its comments/recommendations on the bids of the
consortium and TIM.
The BAC, in its Report dated April 21, 2003, recommended that
the Phase II project involving the acquisition of automated counting
machines be awarded to MPEI. It said:
After incisive analysis of the technical reports of the DOST and the Technical
Working Group for Phase II Automated Counting Machine, the BAC
considers adaptability to advances in modern technology to ensure an
effective and efficient method, as well as the security and integrity of the
system.
The results of the evaluation conducted by the TWG and that of the DOST (14
April 2003 report), would show the apparent advantage of Mega-Pacific over
the other competitor, TIM.
The BAC further noted that both Mega-Pacific and TIM obtained some failed
marks in the technical evaluation. In general, the failed marks of Total
Information Management as enumerated above affect the counting machine
itself which are material in nature, constituting non-compliance to the
RFP. On the other hand, the failed marks of Mega-Pacific are mere formalities
on certain documentary requirements which the BAC may waive as clearly
indicated in the Invitation to Bid.
In the DOST test, TIM obtained 12 failed marks and mostly attributed to the
counting machine itself as stated earlier. These are requirements of the RFP
and therefore the BAC cannot disregard the same.
Mega-Pacific failed in 8 items however these are mostly on the software
which can be corrected by reprogramming the software and therefore can be
readily corrected.
The BAC verbally inquired from DOST on the status of the retest of the
counting machines of the TIM and was informed that the report will be
forthcoming after the holy week. The BAC was informed that the retest is on a
different parameters theyre being two different machines being tested. One
purposely to test if previously read ballots will be read again and the other for
the other features such as two sided ballots.
The said machine and the software therefore may not be considered the same
machine and program as submitted in the Technical proposal and therefore
may be considered an enhancement of the original proposal.

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

Option 2 Lease option:
70% Down payment of cost of hardware or Php642,755,757.07
Remainder payable over 50 months or a total of
Php642,755,757.07
Discount rate of 15% p.a. or 1.2532% per month.
Total Number of Automated Counting Machine 1,769 ACMs
(Nationwide)
TIM:
Total Bid Price Php1,297,860,560.00
Total Number of Automated Counting Machine 2,272 ACMs
(Mindanao and NCR only)
Premises considered, it appears that the bid of Mega Pacific is the lowest
calculated responsive bid, and therefore, the Bids and Awards Committee
(BAC) recommends that the Phase II project re Automated Counting Machine
be awarded to Mega Pacific eSolutions, Inc.[48]
The BAC, however, also stated on page 4 of its Report: Based
on the 14 April 2003 report (Table 6) of the DOST, it appears that both
Mega-Pacific and TIM (Total Information Management Corporation)
failed to meet some of the requirements. Below is a comparative
presentation of the requirements wherein Mega-Pacific or TIM or both
of them failed: x x x. What followed was a list of key requirements,
referring to technical requirements, and an indication of which of the
two bidders had failed to meet them.

Failure to Meet the Required Accuracy Rating

The first of the key requirements was that the counting machines
were to have an accuracy rating of at least 99.9995 percent. The
BAC Report indicates that both Mega Pacific and TIM failed to meet
this standard.
The key requirement of accuracy rating happens to be part and
parcel of the Comelecs Request for Proposal (RFP). The RFP, on page
26, even states that the ballot counting machines and ballot counting
software must have an accuracy rating of 99.9995% (not merely
99.995%) or better as certified by a reliable independent testing
agency.
When questioned on this matter during the Oral Argument,
Commissioner Borra tried to wash his hands by claiming that the
required accuracy rating of 99.9995 percent had been set by a private
sector group in tandem with Comelec. He added that the Commission
had merely adopted the accuracy rating as part of the groups
recommended bid requirements, which it had not bothered to amend
even after being advised by DOST that such standard was
unachievable. This excuse, however, does not in any way lessen
Comelecs responsibility to adhere to its own published bidding rules,
as well as to see to it that the consortium indeed meets the accuracy
standard. Whichever accuracy rating is the right standard -- whether
99.995 or 99.9995 percent -- the fact remains that the machines of the

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

Failure of Software to Detect Previously Downloaded Data

Furthermore, on page 6 of the BAC Report, it appears that the
consortium as well as TIM failed to meet another key requirement -- for
the counting machines software program to be able to detect
previously downloaded precinct results and to prevent these from
being entered again into the counting machine. This same
deficiency on the part of both bidders reappears on page 7 of the BAC
Report, as a result of the recurrence of their failure to meet the said
key requirement.
That the ability to detect previously downloaded data at different
canvassing or consolidation levels is deemed of utmost importance
can be seen from the fact that it is repeated three times in the RFP. On
page
30
thereof,
we
find
the
requirement
that
the city/municipal canvassing system software must be able to detect
previously downloaded precinct results and prevent these from being
inputted again into the system. Again, on page 32 of the RFP, we read
that the provincial/district canvassing system software must be able to
detect previously downloaded city/municipal results and prevent these
from being inputted again into the system. And once more, on page 35
of the RFP, we find the requirement that the national canvassing
system software must be able to detect previously downloaded
provincial/district results and prevent these from being inputted again
into the system.
Once again, though, Comelec chose to ignore this crucial
deficiency, which should have been a cause for the gravest concern.
Come May 2004, unscrupulous persons may take advantage of and
exploit such deficiency by repeatedly downloading and feeding into the
computers results favorable to a particular candidate or
candidates. We are thus confronted with the grim prospect of
election fraud on a massive scale by means of just a few key
strokes. The marvels and woes of the electronic age!

Inability to Print the Audit Trail

But that grim prospect is not all. The BAC Report, on pages 6
and 7, indicate that the ACMs of both bidders were unable to print the
audit trail without any loss of data. In the case of MPC, the audit trail
system was not yet incorporated into its ACMs.
This particular deficiency is significant, not only to this bidding
but to the cause of free and credible elections. The purpose of
requiring audit trails is to enable Comelec to trace and verify the
identities of the ACM operators responsible for data entry and
downloading, as well as the times when the various data were
downloaded into the canvassing system, in order to forestall fraud and
to identify the perpetrators.
Thus, the RFP on page 27 states that the ballot counting
machines and ballot counting software must print an audit trail of all
machine operations for documentation and verification purposes.
Furthermore, the audit trail must be stored on the internal storage
device and be available on demand for future printing and verifying. On
pages 30-31, the RFP also requires that the city/municipal canvassing
system software be able to print an audit trail of the canvassing
operations, including therein such data as the date and time the
canvassing program was started, the log-in of the authorized users
(the identity of the machine operators), the date and time the canvass
data were downloaded into the canvassing system, and so on and so

forth. On page 33 of the RFP, we find the same audit trail requirement
with respect to the provincial/district canvassing system software; and
again on pages 35-36 thereof, the same audit trail requirement with
respect to the national canvassing system software.
That this requirement for printing audit trails is not to be lightly
brushed aside by the BAC or Comelec itself as a mere formality or
technicality can be readily gleaned from the provisions of Section 7 of
RA 8436, which authorizes the Commission to use an automated
system for elections.
The said provision which respondents have quoted several
times, provides that ACMs are to possess certain features divided into
two classes: those that the statute itself considers mandatory and other
features or capabilities that the law deems optional. Among those
considered mandatory are provisions for audit trails! Section 7 reads
as follows: The System shall contain the following features: (a) use of
appropriate ballots; (b) stand-alone machine which can count votes
and an automated system which can consolidate the results
immediately; (c) with provisions for audit trails; (d) minimum human
intervention; and (e) adequate safeguard/security measures. (Italics
and emphases supplied.)
In brief, respondents cannot deny that the provision requiring
audit trails is indeed mandatory, considering the wording of Section 7
of RA 8436. Neither can Respondent Comelec deny that it has relied
on the BAC Report, which indicates that the machines or the software
was deficient in that respect. And yet, the Commission simply
disregarded this shortcoming and awarded the Contract to private
respondent, thereby violating the very law it was supposed to
implement.

C.
Inadequacy of Post Facto Remedial Measures
Respondents argue that the deficiencies relating to the detection
of previously downloaded data, as well as provisions for audit trails,
are mere shortcomings or minor deficiencies in software or
programming, which can be rectified. Perhaps Comelec simply relied
upon the BAC Report, which states on page 8 thereof that Mega
Pacific failed in 8 items[;] however these are mostly on the software
which can be corrected by re-programming x x x and therefore can be
readily corrected.
The undersigned ponentes questions, some of which were
addressed to Commissioner Borra during the Oral Argument, remain
unanswered to this day. First of all, who made the determination that
the eight fail marks of Mega Pacific were on account of the software -was it DOST or TWG? How can we be sure these failures were not the
results of machine defects? How was it determined that the software
could actually be re-programmed and thereby rectified? D i d a
q u a l i f i e d t e ch n i ca l e x p e r t r e a d a n d a n a l y ze t h e so u r c e
c o d e [ 4 9 ] for the programs and conclude that these could be saved
and remedied? (Such determination cannot be done by any other
means save by the examination and analysis of the source code.)
Who was this qualified technical expert? When did he carry out
the study? Did he prepare a written report on his findings? Or did the
Comelec just make a wild guess? It does not follow that all defects in
software programs can be rectified, and the programs saved. In the
information technology sector, it is common knowledge that there are
many badly written programs, with significant programming errors
written into them; hence it does not make economic sense to try to
correct the programs; instead, programmers simply abandon them and
just start from scratch. Theres no telling if any of these programs is
unrectifiable, unless a qualified programmer reads the source code.
And if indeed a qualified expert reviewed the source code, did he
also determine how much work would be needed to rectify the
programs? And how much time and money would be spent for that
effort? Who would carry out the work? After the rectification process,
who would ascertain and how would it be ascertained that the
programs have indeed been properly rectified, and that they would
work properly thereafter? And of course, the most important question
to ask: could the rectification be done in time for the elections in 2004?

Clearly, none of the respondents bothered to think the matter

through. Comelec simply took the word of the BAC as gospel truth,
without even bothering to inquire from DOST whether it was true that
the deficiencies noted could possibly be remedied by re-programming
the software. Apparently, Comelec did not care about the software, but
focused only on purchasing the machines.
What really adds to the Courts dismay is the admission made by
Commissioner Borra during the Oral Argument that the software
currently being used by Comelec was merely the demo version,
inasmuch as the final version that would actually be used in the
elections was still being developed and had not yet been finalized.
It is not clear when the final version of the software would be
ready for testing and deployment. It seems to the Court that Comelec
is just keeping its fingers crossed and hoping the final product would
work. Is there a Plan B in case it does not? Who knows? But all these
software programs are part and parcel of the bidding and the Contract
awarded to the Consortium. Why is it that the machines are already
being brought in and paid for, when there is as yet no way of knowing
if the final version of the software would be able to run them properly,
as well as canvass and consolidate the results in the manner
required?
The counting machines, as well as the canvassing system, will
never work properly without the correct software programs. There is an
old adage that is still valid to this day: Garbage in, garbage out. No
matter how powerful, advanced and sophisticated the computers and
the servers are, if the software being utilized is defective or has been
compromised, the results will be no better than garbage. And to think
that what is at stake here is the 2004 national elections -- the very
basis of our democratic life.

Comelecs Latest Assurances Are Unpersuasive

Even the latest pleadings filed by Comelec do not serve to allay
our apprehensions. They merely affirm and compound the serious
violations of law and gravely abusive acts it has committed. Let us
examine them.
The Resolution issued by this Court on December 9, 2003
required respondents to inform it as to the number of ACMs delivered
and paid for, as well as the total payment made to date for the
purchase thereof. They were likewise instructed to submit a
certification from the DOST attesting to the number of ACMs tested,
the number found to be defective; and whether the reprogrammed
software has been tested and found to have complied with the
requirements under Republic Act No. 8436.[50]
In its Partial Compliance and Manifestation dated December 29,
2003, Comelec informed the Court that 1,991 ACMs had already been
delivered to the Commission as of that date. It further certified that it
had already paid the supplier the sum of P849,167,697.41, which
corresponded to 1,973 ACM units that had passed the acceptance
testing procedures conducted by the MIRDC-DOST [51] and which had
therefore been accepted by the poll body.
In the same submission, for the very first time, Comelec also
disclosed to the Court the following:
The Automated Counting and Canvassing Project involves not only the
manufacturing of the ACM hardware but also the development of three (3)
types of software, which are intended for use in the following:
1.
2.
3.

Evaluation of Technical Bids

Testing and Acceptance Procedures
Election Day Use.

Correction of Defects?
To their Memorandum, public respondents proudly appended 19
Certifications issued by DOST declaring that some 285 counting
machines had been tested and had passed the acceptance testing
conducted by the Department on October 8-18, 2003. Among those
tested were some machines that had failed previous tests, but had
undergone adjustments and thus passed re-testing.
Unfortunately, the Certifications from DOST fail to divulge in what
manner and by what standards or criteria the condition, performance
and/or readiness of the machines were re-evaluated and re-appraised
and thereafter given the passing mark. Apart from that fact, the
remedial efforts of respondents were, not surprisingly, apparently
focused again on the machines -- the hardware. Nothing was said or
done about the software -- the deficiencies as to detection and
prevention of downloading and entering previously downloaded data,
as well as the capability to print an audit trail. No matter how many
times the machines were tested and re-tested, if nothing was done
about the programming defects and deficiencies, the same danger of
massive electoral fraud remains. As anyone who has a modicum of
knowledge of computers would say, Thats elementary!
And only last December 5, 2003, an Inq7.net news report quoted
the Comelec chair as saying that the new automated poll system would
be used nationwide in May 2004, even as the software for the system
remained unfinished.It also reported that a certain Titus Manuel of the
Philippine Computer Society, which was helping Comelec test the
hardware and software, said that the software for the counting still had
to be submitted on December 15, while the software for the
canvassing was due in early January.
Even as Comelec continues making payments for the ACMs, we
keep asking ourselves: who is going to ensure that the software would
be tested and would work properly?
At any rate, the re-testing of the machines and/or the 100
percent testing of all machines (testing of every single unit) would not
serve to eradicate the grave abuse of discretion already committed by
Comelec when it awarded the Contract on April 15, 2003, despite the
obvious and admitted flaws in the bidding process, the failure of the
winning bidder to qualify, and the inability of the ACMs and the
intended software to meet the bid requirements and rules.

Purchase of the First Type of Software Without Evaluation

In other words, the first type of software was to be developed
solely for the purpose of enabling the evaluation of the bidders
technical bid. Comelec explained thus: In addition to the presentation
of the ACM hardware, the bidders were required to develop a base
software program that will enable the ACM to function properly. Since
the software program utilized during the evaluation of bids is not the
actual software program to be employed on election day, there being
two (2) other types of software program that will still have to be
developed and thoroughly tested prior to actual election day use,
defects in the base software that can be readily corrected by
reprogramming are considered minor in nature, and may therefore be
waived.
In short, Comelec claims that it evaluated the bids and made the
decision to award the Contract to the winning bidder partly on the basis
of the operation of the ACMs running a base software. That software
was therefore nothing but a sample or demo software, which would not
be the actual one that would be used on election day. Keeping in mind
that the Contract involves the acquisition of not just the ACMs or the
hardware, but also the software that would run them, it is now even
clearer that the Contract was awarded without Comelec having seen,
much less evaluated, the final product -- the software that would finally
be utilized come election day. (Not even the near-final product, for that
matter).
What then was the point of conducting the bidding, when the
software that was the subject of the Contract was still to be
created and could conceivably undergo innumerable changes before
being considered as being in final form? And that is not all!

No Explanation for Lapses in the Second Type of Software

The second phase, allegedly involving the second type of
software, is simply denominated Testing and Acceptance
Procedures. As best as we can construe, Comelec is claiming that this
second type of software is also to be developed and delivered by the
supplier in connection with the testing and acceptance phase of the

acquisition process. The previous pleadings, though -- including the

DOST reports submitted to this Court -- have not heretofore mentioned
any statement, allegation or representation to the effect that a
particular set of software was to be developed and/or delivered by the
supplier in connection with the testing and acceptance of delivered
ACMs.
What the records do show is that the imported ACMs were
subjected to the testing and acceptance process conducted by the
DOST. Since the initial batch delivered included a high percentage of
machines that had failed the tests, Comelec asked the DOST to
conduct a 100 percent testing; that is, to test every single one of the
ACMs delivered. Among the machines tested on October 8 to 18,
2003, were some units that had failed previous tests but had
subsequently been re-tested and had passed. To repeat, however, until
now, there has never been any mention of a second set or type of
software pertaining to the testing and acceptance process.
In any event, apart from making that misplaced and
uncorroborated claim, Comelec in the same submission also professes
(in response to the concerns expressed by this Court) that the
reprogrammed software has been tested and found to have
complied with the requirements of RA 8436. It reasoned thus: Since
the software program is an inherent element in the automated counting
system, the certification issued by the MIRDC-DOST that one
thousand nine hundred seventy-three (1,973) units passed the
acceptance test procedures is an official recognition by the MIRDCDOST that the software component of the automated election system,
which has been reprogrammed to comply with the provisions of
Republic Act No. 8436 as prescribed in the Ad Hoc Technical
Evaluation Committees ACM Testing and Acceptance Manual, has
passed the MIRDC-DOST tests.
The facts do not support this sweeping statement of Comelec. A
scrutiny of the MIRDC-DOST letter dated December 15, 2003, [52] which
it relied upon, does not justify its grand conclusion. For claritys sake,
we quote in full the letter-certification, as follows:
15 December 2003
HON. RESURRECCION Z. BORRA
Commissioner-in-Charge
Phase II, Modernization Project
Commission on Elections
Intramuros, Manila
Attention: Atty. Jose M. Tolentino, Jr.
Project Director
Dear Commissioner Borra:
We are pleased to submit 11 DOST Test Certifications representing 11 lots and
covering 158 units of automated counting machines (ACMs) that we have
tested from 02-12 December 2003.
To date, we have tested all the 1,991 units of ACMs, broken down as follow:
(sic)
1st batch - 30 units 4th batch - 438 units

Even a cursory glance at the foregoing letter shows that it is

completely bereft of anything that would remotely support Comelecs
contention that the software component of the automated election
system x x x has been reprogrammed to comply with RA 8436, and
has passed the MIRDC-DOST tests. There is no mention at all of any
software reprogramming. If the MIRDC-DOST had indeed undertaken
the supposed reprogramming and the process turned out to be
successful, that agency would have proudly trumpeted its singular
achievement.
How Comelec came to believe that such reprogramming had
been undertaken is unclear. In any event, the Commission is not
forthright and candid with the factual details. If reprogramming has
been done, who performed it and when? What exactly did the process
involve? How can we be assured that it was properly performed? Since
the facts attendant to the alleged reprogramming are still shrouded in
mystery, the Court cannot give any weight to Comelecs bare
allegations.
The fact that a total of 1,973 of the machines has ultimately
passed the MIRDC-DOST tests does not by itself serve as an
endorsement of the soundness of the software program, much less as
a proof that it has been reprogrammed. In the first place, nothing on
record shows that the tests and re-tests conducted on the machines
were intended to address the serious deficiencies noted earlier. As a
matter of fact, the MIRDC-DOST letter does not even indicate what
kinds of tests or re-tests were conducted, their exact nature and scope,
and the specific objectives thereof.[53] The absence of relevant
supporting documents, combined with the utter vagueness of the letter,
certainly fails to inspire belief or to justify the expansive confidence
displayed by Comelec. In any event, it goes without saying that
remedial measures such as the alleged reprogramming cannot in any
way mitigate the grave abuse of discretion already committed as early
as April 15, 2003.

Rationale of Public Bidding Negated by the Third Type of

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

Very truly yours,

The foregoing passage shows the imprudent approach adopted

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

ROLANDO T. VILORIA, CESO III

Executive Director cum
Chairman, DOST-Technical Evaluation Committee

Given such a frame of mind, it is no wonder that Comelec paid

little attention to the counting and canvassing software during the
entire bidding process, which took place in February-March

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

3rd batch - 414 units 6th batch - 383 units
It should be noted that a total of 18 units have failed the test. Out of these 18
units, only one (1) unit has failed the retest.
Thank you and we hope you will find everything in order.

2003. Granted that the software was defective, could not detect and
prevent the re-use of previously downloaded data or produce the audit
trail -- aside from its other shortcomings -- nevertheless, all those
deficiencies could still be corrected down the road. At any rate, the
software used for bidding purposes would not be the same one that will
be used on election day, so why pay any attention to its defects? Or to
the Comelecs own bidding rules for that matter?
Clearly, such jumbled ratiocinations completely negate the
rationale underlying the bidding process mandated by law.
At the very outset, the Court has explained that Comelec
flagrantly violated the public policy on public biddings (1) by allowing
MPC/MPEI to participate in the bidding even though it was not qualified
to do so; and (2) by eventually awarding the Contract to
MPC/MPEI. Now, with the latest explanation given by Comelec, it is
clear that the Commission further desecrated the law on public bidding
by permitting the winning bidder to change and alter the subject of the
Contract (the software), in effect allowing a substantive amendment
without public bidding.
This stance is contrary to settled jurisprudence requiring the
strict application of pertinent rules, regulations and guidelines for public
bidding for the purpose of placing each bidder, actual or potential, on
the same footing. The essence of public bidding is, after all, an
opportunity for fair competition, and a fair basis for the precise
comparison of bids. In common parlance, public bidding aims to level
the playing field. That means each bidder must bid under the same
conditions; and be subject to the same guidelines, requirements and
limitations, so that the best offer or lowest bid may be determined, all
other things being equal.
Thus, it is contrary to the very concept of public bidding to permit
a variance between the conditions under which bids are invited and
those under which proposals are submitted and approved; or, as in this
case, the conditions under which the bid is won and those under which
the awarded Contract will be complied with. The substantive
amendment of the contract bidded out, without any public bidding
-- after the bidding process had been concluded -- is violative of the
public policy on public biddings, as well as the spirit and intent of RA
8436. The whole point in going through the public bidding exercise
was completely lost. The very rationale of public bidding was totally
subverted by the Commission.
From another perspective, the Comelec approach also fails to
make sense. Granted that, before election day, the software would still
have to be customized to each precinct, municipality, city, district, and
so on, there still was nothing at all to prevent Comelec from requiring
prospective suppliers/bidders to produce, at the very start of the
bidding process, the next-to-final versions of the software (the best
software the suppliers had) -- pre-tested and ready to be customized to
the final list of candidates and project of precincts, among others, and
ready to be deployed thereafter. The satisfaction of such requirement
would probably have provided far better bases for evaluation and
selection, as between suppliers, than the so-called demo software.
Respondents contend that the bidding suppliers counting
machines were previously used in at least one political exercise with
no less than 20 million voters. If so, it stands to reason that the
software used in that past electoral exercise would probably still be
available and, in all likelihood, could have been adopted for use in this
instance. Paying for machines and software of that category (already
tried and proven in actual elections and ready to be adopted for use)
would definitely make more sense than paying the same hundreds of
millions of pesos for demo software and empty promises of usable
programs in the future.
But there is still another gut-level reason why the approach taken
by Comelec is reprehensible. It rides on the perilous assumption that
nothing would go wrong; and that, come election day, the Commission
and the supplier would have developed, adjusted and re-programmed
the software to the point where the automated system could function
as envisioned. But what if such optimistic projection does not
materialize? What if, despite all their herculean efforts, the software
now being hurriedly developed and tested for the automated system
performs dismally and inaccurately or, worse, is hacked and/or
manipulated?[54] What then will we do with all the machines and
defective softwarealready paid for in the amount of P849 million of our

tax money? Even more important, what will happen to our country in
case of failure of the automation?
The Court cannot grant the plea of Comelec that it be given until
February 16, 2004 to be able to submit a certification relative to the
additional elements of the software that will be customized, because
for us to do so would unnecessarily delay the resolution of this case
and would just give the poll body an unwarranted excuse to postpone
the 2004 elections. On the other hand, because such certification will
not cure the gravely abusive actions complained of by petitioners, it will
be utterly useless.
Is this Court being overly pessimistic and perhaps even
engaging in speculation? Hardly. Rather, the Court holds that Comelec
should not have gambled on the unrealistic optimism that the suppliers
software development efforts would turn out well. The Commission
should have adopted a much more prudent and judicious approach to
ensure the delivery of tried and tested software, and readied
alternative courses of action in case of failure. Considering that the
nations future is at stake here, it should have done no less.

Epilogue
Once again, the Court finds itself at the crossroads of our
nations history. At stake in this controversy is not just the business of a
computer supplier, or a questionable proclamation by Comelec of one
or more public officials.Neither is it about whether this country should
switch from the manual to the automated system of counting and
canvassing votes. At its core is the ability and capacity of the
Commission on Elections to perform properly, legally and prudently its
legal mandate to implement the transition from manual to automated
elections.
Unfortunately, Comelec has failed to measure up to this historic
task. As stated at the start of this Decision, Comelec has not merely
gravely abused its discretion in awarding the Contract for the
automation of the counting and canvassing of the ballots. It has also
put at grave risk the holding of credible and peaceful elections by
shoddily accepting electronic hardware and software that admittedly
failed to pass legally mandated technical requirements.Inadequate as
they are, the remedies it proffers post facto do not cure the grave
abuse of discretion it already committed (1) on April 15, 2003, when it
illegally made the award; and (2) sometime in May 2003 when it
executed the Contract for the purchase of defective machines and nonexistent software from a non-eligible bidder.
For these reasons, the Court finds it totally unacceptable and
unconscionable to place its imprimatur on this void and illegal
transaction that seriously endangers the breakdown of our electoral
system. For this Court to cop-out and to close its eyes to these illegal
transactions, while convenient, would be to abandon its constitutional
duty of safeguarding public interest.
As a necessary consequence of such nullity and illegality, the
purchase of the machines and all appurtenances thereto including the
still-to-be-produced (or in Comelecs words, to be reprogrammed)
software, as well as all the payments made therefor, have no basis
whatsoever in law. The public funds expended pursuant to the void
Resolution and Contract must therefore be recovered from the payees
and/or from the persons who made possible the illegal disbursements,
without prejudice to possible criminal prosecutions against them.
Furthermore, Comelec and its officials concerned must bear full
responsibility for the failed bidding and award, and held accountable
for the electoral mess wrought by their grave abuse of discretion in the
performance of their functions. The State, of course, is not bound by
the mistakes and illegalities of its agents and servants.
True, our country needs to transcend our slow, manual and
archaic electoral process. But before it can do so, it must first have a
diligent and competent electoral agency that can properly and
prudently implement a well-conceived automated election system.
At bottom, before the country can hope to have a speedy and
fraud-free automated election, it must first be able to procure the
proper computerized hardware and software legally, based on a
transparent and valid system of public bidding. As in any democratic
system, the ultimate goal of automating elections must be achieved by

a legal, valid and above-board process of acquiring the necessary

tools and skills therefor. Though the Philippines needs an automated
electoral process, it cannot accept just any system shoved into its
bosom through improper and illegal methods. As the saying goes, the
end never justifies the means. Penumbral contracting will not produce
enlightened results.
WHEREFORE, the Petition is GRANTED. The Court hereby
declares NULL and VOID Comelec Resolution No. 6074 awarding the
contract for Phase II of the CAES to Mega Pacific
Consortium (MPC). Also declared null and void is the subject Contract
executed between Comelec and Mega Pacific eSolutions (MPEI).
[55]
Comelec is further ORDERED to refrain from implementing any
other contract or agreement entered into with regard to this project.
Let a copy of this Decision be furnished the Office of the
Ombudsman which shall determine the criminal liability, if any, of the
public officials (and conspiring private individuals, if any) involved in the
subject Resolution and Contract. Let the Office of the Solicitor General
also take measures to protect the government and vindicate public
interest from the ill effects of the illegal disbursements of public funds
made by reason of the void Resolution and Contract.
SO ORDERED.
Carpio, Austria-Martinez, Carpio-Morales, and Callejo, Sr.,
JJ., concur.
Davide, Jr., C.J., Vitug, and Ynares-Santiago, JJ., see separate
opinion.
Puno, J., concur, and also joins the opinion of J. YnaresSantiago.
Quisumbing, J., in the result.
Sandoval-Gutierrez, J., see concurring opinion.
Corona, and Azcuna, JJ., joins the dissent of J. Tinga.
Tinga, J., pls. see dissenting opinion.

In its present Motion, the poll body expressly admits that the Decision
"has become final and executory," and that "COMELEC and MPCMPEI are under obligation to make mutual restitution." Otherwise
stated, this admission implies that the ACMs are to be returned to
MPC-MPEI, and that the sum of over one billion pesos illegally paid for
them be refunded to the public purse.2 In short, ownership of the ACMs
never left MPC-MPEI and the money paid for them still belongs, and
must be returned, to the government.
Consequently, the ACMs, which "admittedly failed to pass legally
mandated technical requirements" cannot be used during the
forthcoming elections in the Autonomous Region for Muslim Mindanao
(ARMM). Apart from formidable legal, jurisprudential, technical and
financial obstacles, the use of the machines would expose the ARMM
elections to the same electoral pitfalls and frauds pointed out in our
Decision. If the ACMs were not good enough for the 2004 national
elections, why should they be good enough now for the 2005 ARMM
elections, considering that nothing has been done by Comelec to
correct the legal, jurisprudential and technical flaws underscored in our
final and executory Decision?
The Motion
Before us is the Commission on Elections "Most Respectful Motion for
Leave to Use the Automated Counting Machines in [the] Custody of the
Commission on Elections for use (sic) in the August 8, 2005 Elections
in the Autonomous Region for Muslim Mindanao (ARMM)," dated
December 9, 2004. In its January 18, 2005 Resolution, the Court
required the parties to comment. After careful deliberation on all
pleadings at hand, we now resolve the Motion.

Background Information
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 159139

June 15, 2005

INFORMATION TECHNOLOGY FOUNDATION OF THE

PHILIPPINES, MA. CORAZON M. AKOL, MIGUEL UY, EDUARDO H.
LOPEZ, AUGUSTO C. LAGMAN, REX C. DRILON, MIGUEL
HILADO, LEY SALCEDO, and MANUEL ALCUAZ JR., Petitioners,
vs.
COMMISSION ON ELECTIONS; COMELEC CHAIRMAN BENJAMIN
ABALOS SR.; COMELEC BIDDING and AWARD COMMITTEE
CHAIRMAN EDUARDO D. MEJOS and MEMBERS GIDEON DE
GUZMAN, JOSE F. BALBUENA, LAMBERTO P. LLAMAS, and
BARTOLOME SINOCRUZ JR.; MEGA PACIFIC eSOLUTIONS, INC.;
and MEGA PACIFIC CONSORTIUM, Respondents.
RESOLUTION
PANGANIBAN, J.:
Our Decision1 in the present case voided the Contract entered into by
the Commission on Elections (Comelec) for the supply of automated
counting machines (ACMs) because of "clear violation of law and
jurisprudence" and "reckless disregard of [Comelecs] own bidding
rules and procedure." Moreover, "Comelec awarded this billion-dollar
undertaking with inexplicable haste, without adequately checking and
observing mandatory financial, technical and legal requirements. x x x.
The illegal, imprudent and hasty actions of the Commission have not
only desecrated legal and jurisprudential norms, but have also cast
serious doubts upon the poll bodys ability and capacity to conduct
automated elections." As a result, the ACMs illegally procured and
improvidently paid for by Comelec were not used during the 2004
national elections.

At the outset, we stress that the Decision in the present case,

promulgated on January 13, 2004, has long attained finality.3 In our
February 17, 2004 Resolution, we denied with finality Comelecs
Motion for Reconsideration dated January 28, 2004, as well as private
respondents Omnibus Motion dated January 26, 2004. The Decision
was recorded in the Book of Entries of Judgments on March 30, 2004.
Recall that our Decision declared Comelec to have acted with grave
abuse of discretion when, by way of its Resolution No. 6074, it
awarded the Contract for the supply of automated counting machines
(ACMs) to private respondents. It did so, not only in clear violation of
law and jurisprudence, but also with inexplicable haste and reckless
disregard of its own bidding rules and procedures; particularly the
mandatory financial, technical and legal requirements. It further
manifested such grave abuse of discretion when it accepted the
subject computer hardware and software even though, at the time of
the award, these had patently failed to pass eight critical requirements
designed to safeguard the integrity of the elections. Consequently, this
Court was constrained to exercise its constitutional duty by voiding the
assailed Resolution No. 6074 awarding the Contract to Mega Pacific
Consortium, as well as the subject Contract itself executed between
Comelec and Mega Pacific eSolutions, Inc.
Comelec was further ordered to refrain from implementing any other
contract or agreement it had entered into with regard to the said
project. We also declared that, as a necessary consequence of such
nullity and illegality, the purchase of the ACMs and the software, along
with all payments made for them, had no basis in law. Hence, the
public funds spent must be recovered from the payees and/or the
persons who made the illegal disbursements possible, without
prejudice to possible criminal prosecutions against them.4
Likewise, our February 17, 2004 Resolution denying reconsideration
found movants to have raised the same procedural and substantive
issues already exhaustively discussed and definitively passed upon in
our Decision. In that Resolution, we emphasized (and we reiterate
here) that the Decision did not prohibit automation of the elections.
Neither did the Court say that it was opposed to such project (or the

use of ACMs) as a general proposition. We repeated our explanation

that the reason for voiding the assailed Resolution and the subject
Contract was the grave abuse of discretion on the part of Comelec; as
well as its violations of law -- specifically RA 9184, RA 8436, and RA
6955 as amended by RA 7718; prevailing jurisprudence (the latest of
which was Agan v. Philippine International Air Terminals Co.,
Inc.5); and the bidding rules and policies of the Commission itself.
Comelecs Claims
Notwithstanding our Decision and Resolution, the present Motion
claims, inter alia, that the ARMM elections are slated to be held on
August 8, 2005, and are mandated by RA 9333 to be automated; that
the government has no available funds to finance the automation of
those elections; that considering its present fiscal difficulties, obtaining
a special appropriation for the purpose is unlikely; that, on the other
hand, there are in Comelecs custody at present 1,991 ACMs, which
were previously delivered by private respondents; that these machines
would deteriorate and become obsolete if they remain idle and unused;
that they are now being stored in the Comelec Maxilite Warehouse
along UN Avenue, at "storage expenses of P329,355.26 a month,
or P3,979,460.24 annually."
The Motion further alleges that "information technology experts," who
purportedly supervised all stages of the software development for the
creation of the final version to be used in the ACMs, have unanimously
confirmed that this undertaking is in line with the internationally
accepted standards (ISO/IEC 12207) for software life cycle processes,
"with its quality assurance that it would be fit for use in the elections x x
x."
Comelec also points out that the process of "enhancement" of the
counting and canvassing software has to be commenced at least six
(6) months prior to the August 8, 2005 ARMM elections, in order to be
ready by then. It asserts that its Motion is (a) without prejudice to the
ongoing Civil Case No. 04-346 pending before the Regional Trial Court
of Makati City, Branch 59, entitled "Mega Pacific eSolutions, Inc. v.
Republic of the Philippines (represented by the Commission on
Elections)," for the collection of a purported P200 million balance due
from Comelec under the voided Contract; and (b) with a continuing
respectful recognition of the finality and legal effects of our aforesaid
Decision. At bottom, Comelec prays that it be granted leave to use the
ACMs in its custody during the said ARMM elections.
Private Respondents Contentions
Commenting on the present Motion, private respondents take the
position that, since the subject ACMs have already been delivered to,
paid for and used by Comelec, the Republic of the Philippines is now
their owner, without prejudice to Mega Pacific eSolutions, Inc.s claim
for damages in the case pending before the RTC of Makati; and that,
consequently, as far as private respondents are concerned, the
question of using the subject ACMs for the ARMM elections is
dependent solely on the discretion of the owner, the Republic of the
Philippines.
Petitioners Comment
On the other hand, petitioners contend that Comelec is asking this
Court to render an advisory opinion, in contravention of the
constitutional provision6 that explicitly states that the exercise of judicial
power is confined to (1) settling actual controversies involving rights
that are legally demandable and enforceable; and (2) determining
whether there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of
government.
Petitioners assert that there is no longer any live case or controversy to
speak of -- an existing case or controversy that is appropriate or ripe
for determination, not merely conjectural or anticipatory; and that
Comelecs allegations in its Motion do not amount to an actual case or
controversy that would require this Court to render a decision or
resolution in the legitimate exercise of its judicial power. This lack of

actual controversy is clearly seen in the relief prayed for in the Motion:
the grant of a leave to use the ACMs during the ARMM elections.
Obviously, Comelec merely seeks an advisory opinion from this Court
on whether its proposal to use the ACMs during the said elections
might be in violation of this Courts Decision dated January 13, 2004,
and Resolution dated February 17, 2004.
Assuming arguendo that the present Motion might somehow be
justified by the governments fiscal difficulties, petitioners further argue
that permitting Comelec to use the ACMs would nevertheless allow it to
do indirectly what it was not permitted by this Court to do directly. They
argue that the instant Motion is merely a subterfuge on the poll bodys
part to resurrect a lost case via a request for an advisory opinion.
The OSGs Comment
The Office of the Solicitor General (OSG) declares in its Comment that,
in compliance with this Courts directive for it to "take measures to
protect the government and vindicate public interest from the ill effects
of the illegal disbursements of public funds made by reason of the void
[Comelec] Resolution and Contract," it filed on behalf of the Republic
on July 7, 2004, an Answer with Counterclaim in Civil Case No. 04346. The OSG prayed for the return of all payments made by Comelec
to Mega Pacific under the void Contract, amounting to P1,048,828,407.
The OSG also manifests that it received a copy of the ComplaintAffidavit dated September 15, 2004, filed with the Office of the
Ombudsman by the Bantay Katarungan Foundation and the
Kilosbayan Foundation against the Comelec commissioners who had
awarded the Contract for the ACMs; and the private individuals
involved, including the incorporators and officers of Mega Pacific
eSolutions, Inc. This Complaint-Affidavit was for violation of the AntiPlunder Law (RA 7030), the Anti-Graft and Corrupt Practices Act (RA
3019 as amended), and the Code of Conduct and Ethical Standards
for Public Officials and Employees (RA 6713).
The complainants alleged immense kickbacks and horrendous
overpricing involved in the purchase of the 1,991 ACMs. Based on the
OSGs available records, it appears that Comelec withdrew from Land
Bank P1.03 billion, but actually paid Mega Pacific only P550.81 million.
Furthermore, commercial invoices and bank applications for
documentary credits reveal that each ACM cost only P276,650.00, but
that Comelec agreed to pay Mega PacificP430,394.17 per unit -- or a
differential of P153,744.17 per unit or an aggregate differential
of P306.10 million. Moreover, Mega Pacific charged P83.924 million for
value-added taxes (VAT) and P81.024 million more for customs duties
and brokerage fees, when in fact -- under the nullified Contract -- it was
supposed to be exempt from VAT, customs duties and brokerage fees.
Lastly, Comelec agreed to peg the ACM price at the exchange rate
of P58 to $1, when the exchange rate was P55 to $1 at the time of the
bidding, resulting in additional losses for the government amounting to
about P30 million.
The OSG hews to the view that the automation of elections, if properly
carried out, is a desirable objective, but is mindful of the need for
mutual restitution by the parties as a result of the final Decision
nullifying the Contract for the ACMs. Nevertheless, in apparent
response to Comelecs clamor to use the ACMs in the ARMM
elections, the OSG manifests that it has no objection to the proposal to
use the machines, provided however that (1) Comelec should show
with reasonable certainty that the hardware and software of the ACMs
can be effectively used for the intended purpose; (2) Mega Pacific
should be made to return to the Republic at least a substantial portion
of the overprice they charged for the purchase of the ACMs; and (3)
the use of these machines, if authorized by this Court, should be
without prejudice to the prosecution of the related criminal cases
pending before the Office of the Ombudsman (OMB).
The OMBs Manifestation
For its part, the Office of the Ombudsman manifested that as a result
of the nullification of the Contract, various fact-finding investigations
had been conducted, and criminal and administrative charges filed
before it against the persons who appeared to be responsible for the

anomalous Contract; and that the various cases had been

consolidated, and preliminary investigation conducted in respect of the
non-impeachable Comelec officials and co-conspirators/private
individuals. Furthermore, the OMB is in the process of determining
whether a verified impeachment complaint may be filed against the poll
bodys impeachable officials concerned.
A Supplemental Complaint prepared and filed by the Field Investigation
Office of the Ombudsman reveals that the ACMs were overpriced by
about P162,000.00 per unit; that, additionally, Mega Pacific unduly
benefited by including VAT and import duties amounting to P194.60
million in its bid price for the ACMs, despite Section 8 of RA 8436
exempting such equipment from taxes and duties; that Comelec
nonetheless awarded the Contract to Mega Pacific at the same bid
price of P1.249 billion, inclusive of VAT, import duties and so on; and
that the Commission allowed Mega Pacific to peg the ACM price using
an exchange rate of P58 to $1 instead of P53 to $1, which further
inflated Mega Pacifics windfall.
The foregoing notwithstanding, the OMB had allegedly prepared a
comment on the present Motion, stating its position on the issue of
utilizing the ACMs, but upon further reflection decided not to file that
comment. It came to the conclusion that ventilating its position on the
matter might engender certain impressions that it had already resolved
factual and/or legal issues closely intertwined with the elements of the
offenses charged in the criminal and administrative cases pending
before it. "For one, utilizing illegally procured goods or the intentional
non-return thereof to the supplier may have a bearing on the
determination of evident bad faith or manifest partiality, an essential
element in any prosecution under the anti-graft law, and may, at the
same time, be constitutive of misconduct penalized under relevant
disciplinary laws."
Consequently, out of prudential considerations, the OMB prayed to be
excused from commenting on the merits of the present Motion, to
avoid any perception of prejudgment, bias or partiality on its part, in
connection with the criminal and administrative cases pending before
it.
The Courts Ruling
Decision Subverted by the Motion
There are several reasons why the present Motion must be
denied. First, although it professes utmost respect for the finality of our
Decision of January 13, 2004 -- an inescapable and immutable fact
from which spring equally ineludible consequences -- granting it
would have the effect of illegally reversing and subverting our
final Decision. Plainly stated, our final Decision bars the grant of
the present Motion.
To stress, as a direct result of our January 13, 2004 Decision, the
Contract for the supply of the subject ACMs was voided, and the
machines were not used in the 2004 national elections. Furthermore,
the OSG was directed "to take measures to protect the government
and vindicate public interest from the ill-effects of the illegal
disbursements of public funds made by reason of the void Resolution."
Accordingly, in Civil Case No. 04-346, the government counsel has
prayed for mutual restitution; and for the "return of all payments,
amounting toP1,048,828,407.00 made by Comelec to Mega Pacific
under the void Contract."
In the meantime, Comelec has done nothing -- at least, nothing has
been reported in the present Motion -- to abide by and enforce our
Decision. Apparently, it has not done anything to rectify its violations of
laws, jurisprudence and its own bidding rules referred to in our
judgment. Neither has it reported any attempt to correct and observe
the "mandatory financial, technical and legal requirements" needed to
computerize the elections.
Apparently, it has simply filed the present Motion asking permission to
do what it has precisely been prohibited from doing under our final and
executory Decision. If law and jurisprudence bar it from using the

subject ACMs during the last elections, why should it even propose to
use these machines in the forthcoming ARMM elections? True, these
elections are important. But they cannot be more important than the
2004 national elections. Note that the factual premises and the laws
involved in the procurement and use of the ACMs have not changed.
Indeed, Comelec has not even alleged, much less proven, any
supervening factual or legal circumstances to justify its Motion.
Basic and primordial is the rule that when a final judgment becomes
executory, it thereby becomes immutable and unalterable. In other
words, such a judgment may no longer undergo any modification,
much less any reversal, even if it is meant to correct what is perceived
to be an erroneous conclusion of fact or law; and even if it is attempted
by the court rendering it or by this Court.7 Equally well-entrenched is
the doctrine that what is not permitted to be done directly may not be
done indirectly either. In the instant case, it is unarguable that the
inexorable result of granting the present Motion will precisely be a
subversion of the Decision, or at least a modification that would render
the latter totally ineffective and nugatory.
To support its present Motion, Comelec appended as Annex 1 a letter
dated January 22, 2004. Addressed to its chairman, the Annex was
signed by four8 self-proclaimed "information technology experts,"9 who
had gratuitously contended that this Courts Decision was "one of the
most inopportune rulings ever to come out of the hallowed halls of that
High Tribunal"; blame the Decision for supposedly forcing our people
"to entrust their votes to a manual system of counting and canvassing
that have been proven to be prone to massive fraud in the past"; and
mouth legal/technical arguments that have already been repeatedly
debunked in the Decision and Resolution here. The letter also included
a long-winded, tortuous discussion of the software development life
cycle.
A quick check of the case records confirmed our suspicion. The very
same letter dated January 22, 2004 had previously been appended as
Annex 2 to private respondents "Omnibus Motion A) for
reconsideration of the Decision dated 13 January 2004; b) to admit
exhibits in refutation of the findings of fact of the Court; c) to have the
case set for hearing and/or reception of evidence if deemed necessary
by the Court." The only difference is that this time around, Comelec
overlooked or failed to photocopy the last page (page 17) of the letter,
bearing the signatures of the four other purported "information
technology experts."10 In other words, to support its present Motion, it
merely recycled an earlier exhibit that had already been used in
seeking reconsideration of our aforesaid Decision.
While expressing utmost reverence for the finality of the Decision,
Comelec implicitly seeks, nevertheless, to have this Court take up
anew matters that have already been passed upon and disposed of
with finality.
It is a hornbook doctrine that courts are presumed to have passed
upon all points that were raised by the parties in their various
pleadings, and that form part of the records of the case. Our
Resolution, disposing of respondents arguments on reconsideration,
did not explicitly and specifically address all of the matters raised in the
said letter of January 22, 2004. It is presumed however, that all matters
within an issue raised in a case were passed upon by the Court,11 as
indeed they were in the instant case. And as we have held
elsewhere,12 courts will refuse to reopen what has been decided; they
will not allow the same parties or their privies to litigate anew a
question that has been considered and decided with finality.
Besides, the letter of January 22, 2004, laden as it is with technical
jargon and impressive concepts, does not serve to alter by even the
minutest degree our finding of grave abuse of discretion by Comelec,
on account of its clear violations of law and jurisprudence and its
unjustifiable and reckless disregard of its own bidding rules and
procedures.
Furthermore, the letter would obviously not contain anything that might
serve to persuade us that the situation obtaining in January 2004 has
so changed in the interim as to justify the use of the ACMs in August
2005.

The Commission seems to think that it can resurrect the dead case by
waving at this Court a letter replete with technical jargon, much like a
witch doctor muttering unintelligible incantations to revive a corpse.
In its main text, the Motion concedes that our Decision "has become
final and executory," and that all that remains to be done is "to make
mutual restitution."13 So, what is the relevance of all these useless
argumentations and pontifications in Annex 1 by the Commissions
self-proclaimed "experts"? For its own illegal acts, imprudence and
grave abuse of discretion, why blame this Court? For Comelec to know
immediately which culprit should bear full responsibility for its
miserable failure to automate our elections, it should simply face the
mirror.
Recovery of Government Funds Barred by the Motion
Second, the grant of the Motion will bar or jeopardize the recovery of
government funds improvidently paid to private respondents, funds that
to date the OSG estimates to be over one billion pesos. At the very
least, granting the Motion will be antagonistic to the directive in our
Decision for the OSG to recover the "illegal disbursements of public
funds made by reason of the void Resolution and Contract."
Indeed, if the government is conned into not returning the ACMs but
instead keeping and utilizing them, there would be no need for Mega
Pacific to refund the payments made by Comelec. In fact, such
recovery will no longer be possible. Consequently, all those who stood
to benefit (or have already benefited) financially from the deal would no
longer be liable for the refund. They can argue that there was nothing
wrong with the voided Resolution and Contract, nothing wrong with the
public bidding, nothing wrong with the machines and software, since
the government has decided to keep and utilize them. This argument
can be stretched to abate the criminal prosecutions pending before the
OMB and the impeachment proceedings it is considering. After all,
"reasonable doubt" is all that is needed to secure acquittal in a criminal
prosecution.
In brief, the poll bodys Motion not only asks for what is legally
impossible to do (to reverse and subvert a final and executory Decision
of the highest court of the land), but also prevents the Filipino people
from recovering illegally disbursed public funds running into billions of
pesos. Verily, by subverting the Decision of this Court, the Motion
would be unduly favoring and granting virtual immunity from criminal
prosecution to the parties responsible for the illegal disbursement of
scarce public funds.
Use of the ACMs and Software Detrimental to ARMM Elections
Third, the use of the unreliable ACMs and the nonexistent software
that is supposed to run them will expose the ARMM elections to the
same electoral ills pointed out in our final and executory Decision. Be it
remembered that this Court expressly ruled that the proffered
hardware and software had undeniably failed to pass eight critical
requirements designed to safeguard the integrity of elections,
especially the following three items:
" They failed to achieve the accuracy rating criterion of 99.9995
percent set up by the Comelec itself.
" They were not able to detect previously downloaded results at
various canvassing or consolidation levels and to prevent these from
being inputted again.

Equally important, we stressed in our Decision that "[n]othing was said

or done about the software -- the deficiencies as to detection and
prevention of downloading and entering previously downloaded data,
as well as the capability to print an audit trail. No matter how many
times the machines were tested and retested, if nothing was done
about the programming defects and deficiencies, the same danger of
massive electoral fraud remains."15
Other than vaguely claiming that its four so-called "experts" have
"unanimously confirmed that the software development which the
Comelec undertook, [was] in line with the internationally accepted
standards (ISO/IEC 12207) [for] software life cycle processes," the
present Motion has not shown that the alleged "software development"
was indeed extant and capable of addressing the "programming
defects and deficiencies" pointed out by this Court.
At bottom, the proposed use of the ACMs would subject the ARMM
elections to the same dangers of massive electoral fraud that would
have been inflicted by the projected automation of the 2004 national
elections.
Motion Inadequate and Vague
Fourth, assuming arguendo that the foregoing
formidable legal, financial and technical obstacles could be overcome
or set aside, still, the Motion cannot be granted because it is vague; it
does not contain enough details to enable this Court to act
appropriately.
The sham nature of the Motion is evident from the following
considerations. While Comelec asserts a pressing need for the ACMs
to be used in the ARMM elections, strangely enough, it has not
bothered to determine the number of units that will be required for the
purpose, much less tried to justify such quantification. It contracted for
a total of 1,991 ACMs, intended for use throughout the entire country
during the 2004 elections. Are we to believe that all 1,991 units would
be utilized to count and canvass the votes cast in the ARMM elections?
Such a scenario is highly unlikely, even ridiculous.
A genuine, bona fide proposal for the utilization of the ACMs would
naturally have included a well-thought-out plan of action, indicating the
number of units to be deployed, places of utilization, number of
operators and other personnel required, methods/periods of
deployment and recovery or retrieval, assessments of costs and risks
involved in implementing the proposal, and concomitant justifications,
among other things. Now, either "The Plan" is being kept absolutely top
secret, or it is completely nonexistent.
Furthermore, once the ACMs are deployed and utilized, they will no
longer be in the same condition as when they were first delivered to
Comelec. In fact, it is quite probable that by the time election day
comes around, some of the machines would have been mishandled
and damaged, maybe even beyond repair. What steps has the poll
body taken to make certain that such eventualities, if not altogether
preventable, can at least be minimized so as to ensure the eventual
return of the ACMs and the full recovery of the payments made for
them? A scrutiny of the 4-page Motion16 ends in futility. It is all too clear
that a failure or inability of Comelec to return the machines sans
damage would most assuredly be cited as a ground to refuse the
refund of the moneys paid. Yet, if Comelec has given any thought at all
to this or any other contingency, such fact has certainly not been made
evident to us.
ARMM Elections Not Jeopardized by Nonuse of ACMs

" They were unable to print the statutorily required audit trails of the
count/canvass at different levels without any loss of data."14
The Motion has not at all demonstrated that these technical
requirements have been addressed from the time our Decision was
issued up to now. In fact, Comelec is merely asking for leave to use the
machines, without mentioning any specific manner in which the
foregoing requirements have been satisfactorily met.

Fifth, there is no basis for the claim that unless the subject ACMs are
used, the ARMM elections would not be held.
At the outset, if such elections are not held, the blame must be laid
squarely at the doorstep of Comelec. To stress, had it not gravely
abused its discretion, the automation of the vote counting and
canvassing processes would have already become a reality over a

year ago, and the ACMs that would have been used in the 2004
national elections would now be available for the ARMM elections.
In any event, the Commission in its Motion argues that the
government, given its present fiscal difficulties, has no available funds
to finance the automation of the ARMM elections. Without even asking
under what authority it has assumed the role of Treasury spokesman,
we emphasize that there would not now be any lack of funds for
election automation had it not improvidently turned over P1 billion of
taxpayers moneys to Mega Pacifics bank accounts.
Nevertheless, had the poll body been honestly and genuinely intent on
implementing automated counting and canvassing for the ARMM
elections, it ought to have informed Congress of the non-availability of
the subject ACMs due to our Decisions and of the need for special
appropriations, instead of wasting this Courts time on its unmeritorious
Motion. In fact, if only it had taken proper heed of our Decision of
January 13, 2004, it could have conducted an above-board public
bidding for the supply of acceptable ACMs.
Certainly, this option or course of action was not foreclosed by our
Decision. Moreover, there was sufficient time within which to conduct
the public bidding process. RA 9333, which set the second Monday of
August 2005 (August 8, 2005) as the date of the ARMM elections, was
enacted on September 21, 2004. Undoubtedly, Comelec was made
aware of the proposed date of the ARMM elections way before the
passage of RA 9333. Thus, the poll body had about ten (10) months at
the very least (between the end of September 2004, when RA 9333
came into force and effect, and August 8, 2005) to lobby Congress,
properly conduct a public bidding, award the appropriate contracts,
deliver and test the new machines, and make final preparations for the
election.
Even assuming that a new public bidding for ACMs was not a viable
option, still, Comelec has had more than sufficient lead time -- about
ten months counted from the end of September 2004 until August 8,
2005 -- to prepare for manual counting and canvassing in the ARMM
elections. It publicly declared, sometime in late January 2004, that
notwithstanding our Decision nullifying the Mega Pacific Contract, it
would still be able to implement such manualization for the May 10,
2004 national elections. It made this declaration even though it had a
mere three months or so to set up the mechanics. In this present
instance involving elections on a much smaller scale, it will definitely
be able to implement manual processes if it wants to.
There is therefore absolutely no basis for any apprehension that the
ARMM elections would not push through simply because the present
Motion cannot pass muster. More to the point, it would be ridiculous to
regard the grant of permission to use the subject ACMs as
the conditio sine qua non for the holding of the ARMM elections.
What is most odious is the resort to the present Motion seeking the use
of the subject ACMs despite the availability of viable alternative
courses of action17 that will not tend to disturb or render this Courts
final Decision ineffectual. Thus, the present Motion is wholly
unnecessary and unwarranted. Upon it, however has Comelec
pinned all its hopes, instead of focusing on what the poll body can and
ought to do under the circumstances. The consequences of granting its
lamentable Motion, we repeat, will indubitably subvert and thwart the
Decision of this Court in the instant case.
Equally reprehensible is the attempt of the Commission to pass the
onus of its mismanagement problems on to this Court. For instance,
the Motion quotes the cost of storage of the ACMs in its Maxilite
Warehouse atP329,355.26 per month or P3,979,460.24 per annum.
Assuming for the nonce that the machines have to be held in storage
pending the decision in the civil case (as it would simply not do to
throw the machines out into the streets), why must it assume the cost
of storage? Per our Decision, the machines are to be returned to Mega
Pacific. If it refuses to accept them back, it does not follow that
Comelec must pick up the tab. Instead of further wasting the taxpayers
money, it can simply send the bill to Mega Pacific for collection.

It would be entirely improper, bordering on unmitigated contempt of

court, for the Commission to try to pass on the problem to this Court
through its Motion.

No Actual Case or Controversy

Finally, the Motion presents no actual justiciable case or controversy
over which this Court can exercise its judicial authority. It is wellestablished in this jurisdiction that "x x x for a court to exercise its
power of adjudication, there must be an actual case or controversy -one which involves a conflict of legal rights, an assertion of opposite
legal claims susceptible of judicial resolution; the case must not be
moot or academic or based on extra-legal or other similar
considerations not cognizable by a court of justice. x x x [C]ourts do
not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging."18 The controversy must be
justiciable -- definite and concrete, touching on the legal relations of
parties having adverse legal interests.19In other words, the pleadings
must show an active antagonistic assertion of a legal right, on the one
hand, and a denial thereof on the other; that is, it must concern a real
and not a merely theoretical question or issue.20 There ought to be an
actual and substantial controversy admitting of specific relief through a
decree conclusive in nature, as distinguished from an opinion advising
what the law would be upon a hypothetical state of facts.21
A perusal of the present Motion will readily reveal the utter absence of
a live case before us, involving a clash of legal rights or opposing legal
claims. At best, it is merely a request for an advisory opinion, which
this Court has no jurisdiction to grant.22
EPILOGUE
We close this Resolution by repeating the last two paragraphs of our
final and executory Decision:
"True, our country needs to transcend our slow, manual and archaic
electoral process. But before it can do so, it must first have a diligent
and competent electoral agency that can properly and prudently
implement a well-conceived automated election system.
"At bottom, before the country can hope to have a speedy and fraudfree automated election, it must first be able to procure the proper
computerized hardware and software legally, based on a transparent
and valid system of public bidding. As in any democratic system, the
ultimate goal of automating elections must be achieved by a legal,
valid and above-board process of acquiring the necessary tools and
skills therefor. Though the Philippines needs an automated electoral
process, it cannot accept just any system shoved into its bosom
through improper and illegal methods. As the saying goes, the end
never justifies the means. Penumbral contracting will not produce
enlightened results."23
Comelec must follow and not skirt our Decision. Neither may it shortcircuit our laws and jurisprudence. It should return the ACMs to MPCMPEI and recover the improvidently disbursed funds. Instead of
blaming this Court for its illegal actions and grave abuse of discretion,
the Commission should, for a change, devise a legally and technically
sound plan to computerize our elections and show our people that it is
capable of managing the transition from an archaic to a modern
electoral system.
WHEREFORE, the Motion is hereby DENIED for utter lack of merit.
SO ORDERED.
ARTEMIO V. PANGANIBAN
Associate Justice
EN BANC

G.R. No. L-25024 March 30, 1970

TEODORO C. SANTIAGO, JR. Minor, Represented by his Mother,
Mrs. Angelita C. Santiago, petitioner-appellant,
vs.
MISS JUANITA BAUTISTA, ROSALINDA ALPAS, REBECCA
MATUGAS, MILKITA INAMAC, ROMEO AGUSTIN, AIDA CAMINO,
LUNA SARMAGO, AURORA LORENA, SOLEDAD FRANCISCO and
MR. FLOR MARCELO, respondents-appellees.
BARREDO, J.:
Appeal from the order of the Court of First Instance of Cotabato
dismissing, on a motion to dismiss, its Civil Case No. 2012
for certiorari, injunction and damages on the ground that the
complaint therein states no cause of action, and from the subsequent
order of the court a quo denying the motion for the reconsideration of
the said order of dismissal.
The record shows that at the time Civil Case No. 2012 was
commenced in the court below, appellant Teodoro Santiago, Jr. was a
pupil in Grade Six at the public school named Sero Elementary School
in Cotabato City. As the school year 1964-1965 was then about to end,
the "Committee On The Rating Of Students For Honor" was constituted
by the teachers concerned at said school for the purpose of selecting
the "honor students" of its graduating class. With the school Principal,
Mrs. Aurora Lorena, as chairman, and Juanita Bautista, Rosalinda
Alpas, Rebecca Matugas, Milkita Inamac, Romeo Agustin, Aida
Camino and Luna Sarmago, as members, the above-named
committee deliberated and finally adjudged Socorro Medina, Patricia
Ligat and Teodoro C. Santiago, Jr. as first, second and third honors,
respectively. The school's graduation exercises were thereafter set for
May 21, 1965; but three days before that date, the "third placer"
Teodoro Santiago, Jr., represented by his mother, and with his father
as counsel, sought the invalidation of the "ranking of honor students"
thus made, by instituting the above-mentioned civil case in the Court of
First Instance of Cotabato, against the above-named committee
members along with the District Supervisor and the Academic
Supervisor of the place.
The corresponding complaint filed alleged, inter alia: that plaintiffpetitioner Teodoro C. Santiago, Jr. is a sixth grader at the Sero
Elementary School in Cotabato City scheduled to be graduated on May
21st, 1965 with thehonor rank of third place, which is disputed; that the
teachers of the school had been made respondents as they compose
the "Committee on the Rating of Student for Honor", whose grave
abuse of official discretion is the subject of suit, while the other
defendants were included as Principal, District Supervisor and
Academic Supervisor of the school; that Teodoro Santiago, Jr. had
been a consistent honor pupil from Grade I to Grade V of the Sero
Elementary School, while Patricia Ligat (second placer in the disputed
ranking in Grade VI) had never been a close rival of petitioner before,
except in Grade V wherein she ranked third; that Santiago, Jr. had
been prejudiced, while his closest rival had been so much benefited,
by the circumstance that the latter, Socorro Medina, was coached and
tutored during the summer vacation of 1964 by Mrs. Alpas who
became the teacher of both pupils in English in Grade VI, resulting in
the far lead Medina obtained over the other pupil; that the committee
referred to in this case had been illegally constituted as the same was
composed of all the Grade VI teachers only, in violation of the Service
Manual for Teachers of the Bureau of Public Schools which provides
that the committee to select the honor students should be composed of
all teachers in Grades V and VI; that there are direct and circumstantial
matters, which shall be proven during the trial, wherein respondents

have exercised grave abuse of discretion and irregularities, such as

the changing of the final ratings on the grading sheets of Socorro
Medina and Patricia Ligat from 80% to 85%, and some teachers
giving petitioner a starting grade of 75% in Grade VI, which proves that
there has already an intention to pull him to a much lower rank at the
end of the school year; that several district examinations outside of
teachers' daily units and other than periodical tests were given, ratings
in which were heavily considered in the determination of periodical
ratings, whereas according to the Academic Supervisor and Acting
Division Superintendent of schools of the place such district
examinations were not advisable; that there was a unanimous
agreement and understanding among the respondent teachers to insult
and prejudice the second and third honors by rating Socorro Medina
with a perfect score, which is very unnatural; that the words "first
place" in petitioner's certificate in Grade I was erased and replaced
with the words "second place", which is an instance of the unjust and
discriminating abuses committed by the respondent teachers in the
disputed selection of honor pupils they made; that petitioner personally
appealed the matter to the School Principal, to the District Supervisor,
and to the Academic Supervisor, but said officials "passed the buck to
each other" to delay his grievances, and as to appeal to higher
authorities will be too late, there is no other speedy and adequate
remedy under the circumstances; and, that petitioner and his parents
suffered mental and moral damages in the amount of P10,000.00.
They prayed the court, among others, to set aside the final list of honor
students in Grade VI of the Sero Elementary School for that school
year 1964-1965, and, during the pendency of the suit, to enjoin the
respondent teachers from officially and formally publishing and
proclaiming the said honor pupils in Grade VI in the graduation
exercises the school was scheduled to hold on the 21st of May of that
year 1965. The injunction prayed for was denied by the lower court in
its order of May 20, 1965, the said court reasoning out that the
graduation exercises were then already set on the following day, May
21, 1965, and the restraining of the same would be shocking to the
school authorities, parents, and the community who had eagerly
looked forward to the coming of that yearly happy event. As scheduled,
the graduation exercises of the Sero Elementary School for the school
year 1964-1965 was held on May 21, with the same protested list of
honor students.
Having been required by the above-mentioned order to answer the
petition within ten (10) days, respondents moved for the dismissal of
the case instead. Under date of May 24, 1965, they filed a motion to
dismiss, on the grounds (1) that the action for certiorari was improper,
and (2) that even assuming the propriety of the action, the question
brought before the court had already become academic. This was
opposed by petitioner.
In an order dated June 4, 1965, the motion to dismiss of respondents
was granted, the court reasoning thus:
The respondents now move to dismiss the petition for being
improper and for being academic. In order to resolve the
motion to dismiss, the Court has carefully examined the
petition to determine the sufficiency of the alleged cause of
action constituting the special civil action of certiorari.
The pertinent portions of the petition alleging 'grave abuse of
discretion' are found in paragraphs 3, 4, 5, 6, 7, 8, 9 and 10.
These allegations may be substantially summarized as
follows: Paragraph 3 alleges that since grades one to six, the
students closely contending for class honors were Socorro
Medina, Teodoro Santiago, Jr., Dolores Dalican and Patricia
Ligat.

Socorro Medina obtained first honor thrice (grades I, V and

VI); once second honor (grade IV), and twice third place
(grades II and III).
Teodoro Santiago, Jr. obtained first place once (grade IV);
four times second place (grades I, II, III, and V) and once
third place (grade VI).
Dolores Dalican obtained twice first place (grades II, III);
once third place (grade I).
Patricia Ligat once third place (grade V); and once second place
(grade VI).
That as now ranked in the graduation Ligat is given second
place while Teodoro Santiago, Jr., is given the third place
only. This is the ranking now disputed by petitioner, Teodoro
Santiago, Jr.
Paragraph 4 alleges that Socorro Medina was tutored in the
summer of 1964 by Mrs. Rosalinda Alpas who became her
English teacher in the sixth grade; that as such, Mrs. Alpas
unjustly favored Socorro against her rivals.
Paragraph 5 alleges that the teachers who composed the
committee on honor students are all grade six teachers while
the Service Manual For Teachers provides that the
committee shall be composed of the teachers from the fifth
and sixth grades.
Paragraph 6 alleges that there are direct and circumstantial
evidence showing the change of ratings of Socorro Medina
and Patricia Ligat from 80% to 85% and the intention to
junk petitioner to a lower rank.
Paragraph 7 alleges that the giving of district examinations
upon which ratings were partly based were not advisable.
Paragraph 8 alleges that the teachers rated Socorro Medina
a perfect pupil which is unnatural.
Paragraph 9 alleges that on the first grade certificate of the
petitioner the word "First Place" was erased and changed to
"Second Place".
Paragraph 10 alleges that petitioner personally appealed to
the school authorities but they only 'passed the buck to each
other.'
SECOND PARAGRAPH VIOLATED
Rule 65, Section 1 of the Rules of Court provides:
'Section 1. Petition for certiorari. When any
tribunal, board, or officer exercising judicial
functions, has acted without or in excess of its or
his jurisdiction, or with grave abuse of discretion
and there is no appeal, nor 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, as the law

requires, of such tribunal, board or officer.'
'The petition shall be accompanied by a certified
true copy of the judgment or order subject thereof,
together with copies of all pleadings and
documents relevant and pertinent thereto.'
It is striking, indeed, that this petition has not been
accompanied by a certified true copy of the
judgment or order complained of, together with all
pleadings and documents which are relevant
thereto, as required by the second, paragraph of
the aforequoted rule. This violation renders the
petition extremely indefinite and uncertain. There
is no written formal judgment or order of
respondents that is submitted for revision or
correction of this Court. This violation is fatal to the
petition.

ADMINISTRATIVE REMEDIES NEGLECTED

All that the petition alleges is that the petitioner
personally appealed to the school authorities who
only 'passed the buck to each other.' This
allegation does not show that petitioner formally
availed of and exhausted the administrative
remedies of the Department of Education. The
petition implies that this is the first formal
complaint of petitioner against his teachers. The
administrative agencies of the Department of
Education could have investigated the grievances
of the petitioner with dispatch and give effective
remedies, but petitioner negligently abandoned
them. Petitioner cannot now claim that he lacked
any plain, speedy and adequate remedy.
NO GRAVE ABUSE OF DISCRETION
Allegations relating to the alleged 'grave abuse of
discretion' on the part of teachers refer to errors,
mistakes, or irregularities rather than to real grave
abuse of discretion that would amount to lack of
jurisdiction. Mere commission of errors in the
exercise of jurisdiction may not be corrected by
means of certiorari.
In view of the foregoing, the Court is of the
opinion, and so holds, that the petition states no
cause of action and should be, as it is hereby
dismissed.
Upon receipt of a copy of the above-quoted order, the petitioner moved
for the reconsideration thereof, but the same proved to be futile, hence,
this appeal.
Appellant here assails the holding of the lower court that his petition
states no cause of action on the grounds discussed by the court a
quo in the appealed order above-quoted (1) that the petition does
not comply with the second paragraph of Sec. 1 of Rule 65 because it
has not been accompanied by a certified true copy of the judgment or
order subject thereof, together with copies of all pleadings and
documents relevant and pertinent thereto; (2) that administrative

remedies were not first exhausted; and (3) that there was no grave
abuse of discretion on the part of the teachers who constituted the
committee referred to. On the other hand, appellees maintain that the
court below did not err in dismissing the case on said grounds. Further,
they argue in favor of the questioned order of dismissal upon the
additional ground that the "committee on the ratings of students for
honor" whose actions are here condemned by appellant is not the
"tribunal, board or officer exercising judicial functions" against which an
action for certiorari may lie under Section 1 of Rule 65.
The last point raised by appellees deserves first consideration, for if
really the said committee of teachers does not fall within the category
of the tribunal, board, or officer exercising judicial
functions contemplated by Rule 65, further discussion of the issues
raised by appellant may no longer be necessary. To resolve this
problem the following tests may be employed:
In this jurisdiction certiorari is a special civil action instituted
against 'any tribunal, board, or officer exercising judicial
functions.' (Section 1, Rule 67.) A judicial function is an act
performed by virtue of judicial powers; the exercise of a
judicial function is the doing of something in the nature of the
action of the court (34 C.J. 1182). In order that a special civil
action of certiorari may be invoked in this jurisdiction the
following circumstances must exist: (1) that there must be a
specific controversy involving rights of persons or property
and said controversy is brought before a tribunal, board or
officer for hearing and determination of their respective rights
and obligations.
'Judicial action is an adjudication upon the rights of
parties who in general appear or are brought
before the tribunal by notice or process, and upon
whose claims some decision or judgment is
rendered. It implies impartiality, disinterestedness,
a weighing of adverse claims, and is inconsistent
with discretion on the one hand for the tribunal
must decide according to law and the rights of the
parties or with dictation on the other; for in the
first instance it must exercise its own judgment
under the law, and not act under a mandate from
another power. ... The character of its action in a
given case must decide whether that action is
judicial, ministerial, or legislative, or whether it be
simply that of a public agent of the country or
State, as in its varied jurisdictions it may by turns
be each.' (In Re Saline County Subscription, 100
Am. Dec. 337, 338, cited in Southeastern
Greyhound Lines v. Georgia Public Service
Commission, 181 S. E. 836-837.)
'It may be said generally that the exercise of
judicial function is to determine what the law is,
and what the legal rights of parties are, with
respect to a matter in controversy; and whenever
an officer is clothed with that authority, and
undertakes to determine those questions, he acts
judicially.' (State ex rel. Board of Commissioners of
St. Louis County, et al. v. Dunn, 90 N. W. 772773.)
(2) the tribunal, board or officer before whom the controversy
is brought must have the power and authority to pronounce
judgment and render a decision on the controversy
construing and applying the laws to that end.

'The phrase "judicial power" is not capable of a

precise definition which would be applicable to all
cases. The term has been variously defined as the
authority to determine the rights of persons or
property by arbitrating between adversaries in
specific controversies at the instance of a party
thereto; the authority exercised by that department
of government which is charged with the
declaration of what the law is and its construction
so far as it is written law; the authority or power
vested in the judges or in the courts; the authority
vested in some court, officer, or persons to hear
and determine when the rights of persons or
property or the propriety of doing an act is the
subject matter of adjudication; the power
belonging to or emanating from a judge as such;
the power conferred upon a public officer, involving
the exercise of judgment and discretion in the
determination of questions of right in specific
cases affecting the interest of persons or property,
as distinguished from ministerial power or
authority to carry out the mandates of judicial
power or the law; the power exercised by courts in
hearing and determining cases before them, or
some matter incidental thereto, and of which they
have jurisdiction; the power of a court to decide
and pronounce a judgment; the power which
adjudicates upon and protects the rights and
interests of individual citizens, and to that end
construes and applies the law. "Judicial power"
implies the construction of laws and the
adjudication of legal rights. It includes the power to
hear and determine but not everyone who may
hear and determine has judicial power. The term
"judicial power" does not necessarily include the
power to hear and determine a matter that is not in
the nature of a suit or action between the parties.'
(34 C.J. 1183-1184.) .
(3) the tribunal, board or officer must pertain to that branch
of the sovereign power which belongs to the judiciary, or at
least, which does not belong to the legislative or executive
department.
... the distinction between legislative or ministerial
functions and judicial functions is difficult to point
out. What is a judicial function does not depend
solely upon the mental operation by which it is
performed or the importance of the act. In solving
this question, due regard must be had to the
organic law of the state and the division of power
of government. In the discharge of executive and
legislative duties, the exercise of discretion and
judgment of the highest order is necessary, and
matters of the greatest weight and importance are
dealt with. It is not enough to make a function
judicial that it requires discretion, deliberation,
thought, and judgment. It must be the exercise of
discretion and judgment within that subdivision of
the sovereign power which belongs to the
judiciary, or, at least, which does not belong to the
legislative or executive department. If the matter,
in respect to which it is exercised, belongs to
either of the two last-named departments of
government, it is not judicial. As to what is judicial
and what is not seems to be better indicated by
the nature of a thing, than its definition.' (Whealing

& Elm Grove Railroad Co. Appt. v. Town of

Triadelphia, et al., 4 L.R.A. (N. S.) pp. 321, 328329.) [Emphasis supplied]1
'WHAT ARE JUDICIAL OR QUASI JUDICIAL
ACTS. It is difficult, if not impossible, precisely to
define what are judicial or quasi judicial acts, and
there is considerable conflict in the decisions in
regard thereto, in connection with the law as to the
right to the writ of certiorari. It is clear, however,
that it is the nature of the act to be performed,
rather than of the office, board, or body which
performs it, that determines whether or not it is the
discharge of a judicial or quasi-judicial function. It
is not essential that the proceedings should be
strictly and technically judicial, in the sense in
which that word is used when applied to the courts
of justice, but it is sufficient if they are quasi
judicial. It is enough if the officers act judicially in
making their decision, whatever may be their
public character. ...' "In State ex rel. Board of
Commrs. vs. Dunn (86 Minn. 301, 304), the
following statements were made:
'The precise line of demarkation between what are
judicial and what are administrative or ministerial
functions is often difficult to determine. The
exercise of judicial functions may involve the
performance of legislative or administrative duties,
and the performance of administrative or
ministerial duties, may, in a measure, involve the
exercise of judicial functions. It may be said
generally that the exercise of judicial functions is
to determine what the law is, and what the legal
rights of parties are, with respect to a matter in
controversy; and whenever an officer is clothed
with that authority, and undertakes to determine
those questions, he acts judicially.'2
It is evident, upon the foregoing authorities, that the so called
committee on the rating of students for honor whose actions are
questioned in this case exercised neither judicial nor quasi judicial
functions in the performance of its assigned task. From the abovequoted portions of the decision cited, it will be gleaned that before
tribunal board, or officer may exercise judicial or quasi judicial acts, it is
necessary that there be a law that give rise to some specific rights of
persons or property under which adverse claims to such rights are
made, and the controversy ensuing therefrom is brought, in turn,
before the tribunal, board or officer clothed with power and authority to
determine what that law is and thereupon adjudicate the respective
rights of the contending parties. As pointed out by appellees,3 however,
there is nothing on record about any rule of law that provides that when
teachers sit down to assess the individual merits of their pupils for
purposes of rating them for honors, such function involves the
determination of what the law is and that they are therefore
automatically vested with judicial or quasi judicial functions. Worse still,
this Court has not even been appraised by appellant of the pertinent
provisions of the Service Manual of Teachers for Public Schools
appellees allegedly violated in the composition of the committee they
constituted thereunder, and, in the performance of that committee's
duties.
At any rate, the situation brought before Us in this case, the seemingly
one of first impression, is not without substantial parallel. In the case
of Felipe vs. Leuterio, etc., et al.,4 the issue presented for
determination was whether or not the courts have the authority to
reverse the award of the board of judges of an oratorical contest, and

this Court declared that the judiciary has no power to reverse the
award of the board of judges of that contest and, for that matter, it
would not interfere in literary contests, beauty contests and similar
competitions. It was reasoned out thus:
For more than thirty years oratorical tilts have been held
periodically by schools and colleges in this islands. Intercollegiate oratorical competitions are of more recent origin.
Members of this court have taken part in them either as
contestants in their school days (In the College of Law, U.P.
annual oratorical contest, first prize was awarded to Justice
Montemayor in 1914 and to Justice Labrador in 1916), or as
members of the board of judges afterwards. They know
some few verdicts did not reflect the audience's preference
and that errors have sometimes been ascribed to the award
of the judges. Yet no party ever presumed to invoke judicial
intervention; for it is unwritten law in such contests that the
board's decision is final and unappealable.
Like the ancient tournaments of the Sword, these
tournaments of the Word apply the highest tenets of
sportsmanship: finality of referee's verdict. No alibis, no
murmurs of protest. The participants are supposed to join
the competition to contribute to its success by striving their
utmost: the prizes are secondary.
No rights to the prizes may be asserted by the contestants,
because theirs was merely the privilege to compete for the
prize, and that privilege did not ripen into a demandable right
unless and until they were proclaimed winners of the
competition by the appointed arbiters or referees or judges.
Incidentally, these school activities have been imported from
the United States. We found in American jurisprudence no
litigation questioning the determination of the board of
judges.
Now, the fact that a particular action has had no precedent
during a long period affords some reason for doubting the
existence of the right sought to be enforced, especially
where occasion for its assertion must have often arisen; and
courts are cautious before allowing it, being loath to
establish a new legal principle not in harmony with the
generally accepted views thereon. (See C.J.S. Vol. 1, p.
1012.)
We observe that in assuming jurisdiction over the matter, the
respondent judge reasoned out that where there is a wrong
there is a remedy and that courts of first instance are courts
of general jurisdiction.
The flaw in his reasoning lies in the assumption that Imperial
suffered some wrong at the hands of the board of judges. If
at all, there was error on the part of one judge, at most. Error
and wrong do not mean the same thing. 'Wrong' as used in
the aforesaid principle is the deprivation or violation of a
right. As stated before, a contestant has no right to the prize
unless and until he or she is declared winner by the board of
referees or judges.
Granting that Imperial suffered some loss or injury, yet in law
there are instances of 'damnum absque injuria'. This is one
of them. If fraud or malice had been proven, it would be a
different proposition. But then her action should be directed

against the individual judge or judges who fraudulently or

maliciously injured her. Not against the other judges.
But even were We to assume for the moment, as the court below
apparently did, that judicial intervention might be sought in cases of
this nature, still, We are inclined to sustain the order of dismissal
appealed from for failure on the part of appellant to comply with the
requirements of Section 1 of Rule 65. To be sure, the lower court's
holding that appellant's failure to accompany his petition with a copy of
the judgment or order subject thereof together with copies of all
pleadings and documents relevant and pertinent thereto "is fatal to his
cause" is supported not only by the provision of that Rule but by
precedents as well. In the case of Alajar, et al. vs. Court of Industrial
Relations,5 where it was claimed by therein petitioners that the
respondent court had acted with grave abuse of discretion in
estimating certain rice harvests involved in the case in terms of cavans
instead of cans, allegedly in complete disregard of the decision of the
Court of First Instance of Batangas in Expropriation Proceedings No.
84 and of this Court in G.R. No.
L-6191,6 and in ordering thereafter the division of the said rice harvests
on the ratio of 70-30 in favor of the tenants, this Court denied the
petition for certiorari on the ground, among others, of failure on the part
of said petitioners to attach to their petition copies of the decisions
allegedly violated. Speaking thru Mr. Justice J.B.L. Reyes then, this
Court held:
The petition is patently without merit. In the first place, it is
not even sufficient in form and substance to justify the
issuance of the writ of certiorari prayed for. It charges that
the Court of Industrial Relations abused its discretion in
disregarding the decision of the Court of First Instance of
Batangas in Expropriation Proceedings No. 84 and of this
Court in G.R. No. L-6191; yet it does not attach to the
petition the decisions allegedly violated by the Court below
and point out which particular portion or portions thereof
have been disregarded by the respondent Court.
The same principle was applied in the more recent case of NAWASA
vs. Municipality of Libmanan, et al.,7 wherein this Court dismissed (by
Resolution) the petition for certiorari and mandamus filed by the
National Waterworks and Sewerage Authority against the Court of First
Instance of Camarines Sur, and the municipality of Libmanan. In the
following language, this Court emphasized the importance of
complying with the said requirement of Rule 65:
While paragraph 3 of the petition speaks of the complaint
filed by the respondent municipality with the respondent
court for recovery of property with damages (Civil Case No.
L-161) no copy thereof is attached to the petition.
Similarly, paragraph 4 of the petition mentions the decision
rendered by the respondent court on December 10, 1965,
but no copy thereof is attached to the petition.
Again, paragraph 5 of the petition speaks of the order of
default entered by the respondent court and of the motion for
reconsideration filed by petitioner in the case abovementioned, but no copy of the order of default is attached to
its petition.
Bearing in mind that the petition under consideration was
filed for the purpose of enjoining the respondent court from
executing the decision rendered in Civil Case No. L-161, the
importance of the missing pleadings is obvious.

Moreover, the petition is also for the purpose of securing an

order commanding the respondent court to approve either
the original or the amended record on appeal filed petition,
but no copy of either is attached to its petition.
In view of the foregoing, the petition under consideration is
dismissed.
It might be true, as pointed out by appellant, that he received a copy of
the programme of the graduation exercises held by the Sero
Elementary School in the morning of the very day of that graduation
exercises, implying that he could not have attached then a copy
thereof (to show the decision of the committee of teachers in the
ranking of students complained of) to his petition. The stubborn fact
remains, however, that appellant had known of such decision of the
said committee of teachers much earlier, as shown by the
circumstance that according to him, even before the filing of his petition
with the lower court on the 19th of May, 1965, he had personally
appealed the said committee's decision with various higher authorities
of the above-named school, who merely passed the buck to each
other. Moreover, appellant mentions in his petition various other
documents or papers as the Service Manual for Teachers allegedly
violated by appellees in the constitution of their committee; altered
grading sheets; and erasures in his Grade I certificate which
appellant never bothered to attach to his petition. There could be no
doubt then that he miserably failed to comply with the requirement of
Rule 65 above-mentioned. With this conclusion, it is no longer
necessary to pass upon the other two errors assigned by appellant.
FOR THE FOREGOING CONSIDERATIONS, the judgment appealed
from is affirmed, with costs against appellant.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro,
Fernando, Teehankee and Villamor, JJ., concur.

EN BANC
G.R. No. L-28790

April 29, 1968

ANTONIO H. NOBLEJAS, as Commissioner of Land

Registration, petitioner,
vs.
CLAUDIO TEEHANKEE, as Secretary of Justice, and RAFAEL M.
SALAS, as Executive Secretary,respondents.
REYES, J.B.L., Actg. C.J.:
Petition for a writ of prohibition with preliminary injunction to restrain
the Secretary of Justice from investigating the official actuations of the
Commissioner of Land Registration, and to declare inoperative his
suspension by the Executive Secretary pending investigation.
The facts are not in dispute. Petitioner Antonio H. Noblejas is the duly
appointed, confirmed and qualified Commissioner of Land Registration,
a position created by Republic Act No. 1151. By the terms of section 2
of said Act, the said Commissioner is declared "entitled to the same
compensation, emoluments and privileges as those of a Judge of the
Court of First Instance." The appropriation laws (Rep. Acts 4642, 4856
and 5170) in the item setting forth the salary of said officer, use the
following expression:

1. One Land Registration Commissioner with the rank and

privileges of district judge P19,000.00.
On March 7, 1968, respondent Secretary of Justice coursed to the
petitioner a letter requiring him to explain in writing not later than March
9, 1968 why no disciplinary action should be taken against petitioner
for "approving or recommending approval of subdivision, consolidation
and consolidated-subdivision plans covering areas greatly in excess of
the areas covered by the original titles." Noblejas answered and
apprised the Secretary of Justice that, as he enjoyed the rank,
privileges, emoluments and compensation of a Judge of the Court of
First Instance, he could only be suspended and investigated in the
same manner as a Judge of the Courts of First Instance, and,
therefore, the papers relative to his case should be submitted to the
Supreme Court, for action thereon conformably to section 67 of the
Judiciary Act (R. A. No. 296) and Revised Rule 140 of the Rules of
Court.
On March 17, 1968, petitioner Noblejas received a communication
signed by the Executive Secretary, "by authority of the President",
whereby, based on "finding that a prima facie case exists against you
for gross negligence and conduct prejudicial to the public interest",
petitioner was "hereby suspended, upon receipt hereof, pending
investigation of the above charges."
On March 18, 1968, petitioner applied to this Court, reiterating the
contentions advanced in his letter to the Secretary of Justice, claiming
lack of jurisdiction and abuse of discretion, and praying for restraining
writs. In their answer respondents admit the facts but denied that
petitioner, as Land Registration Commissioner, exercises judicial
functions, or that the petitioner may be considered a Judge of First
Instance within the purview of the Judiciary Act and Revised Rules of
Court 140; that the function of investigating charges against public
officers is administrative or executive in nature; that the Legislature
may not charge the judiciary with non-judicial functions or duties
except when reasonably incidental to the fulfillment of judicial duties,
as it would be in violation of the principle of the separation of powers.
Thus, the stark issue before this Court is whether the Commissioner of
Land Registration may only be investigated by the Supreme Court, in
view of the conferment upon him by the Statutes heretofore mentioned
(Rep. Act 1151 and Appropriation Laws) of the rank and privileges of a
Judge of the Court of First Instance.
First to militate against petitioner's stand is the fact that section 67 of
the Judiciary Act providing for investigation, suspension or removal of
Judges, specifically recites that "No District Judge shall be separated
or removed from office by the President of the Philippines unless
sufficient cause shall exist in the judgment of the Supreme Court . . ."
and it is nowhere claimed, much less shown, that the Commissioner of
Land Registration is a District Judge, or in fact a member of the
Judiciary at all.
In the second place, petitioner's theory that the grant of "privileges of a
Judge of First Instance" includes by implication the right to be
investigated only by the Supreme Court and to be suspended or
removed upon its recommendation, would necessarily result in the
same right being possessed by a variety of executive officials upon
whom the Legislature had indiscriminately conferred the same
privileges. These favoured officers include (a) the Judicial
Superintendent of the Department of Justice (Judiciary Act, sec. 42);
(b) the Assistant Solicitors General, seven in number (Rep. Act No.
4360); (c) the City Fiscal of Quezon City (R.A. No. 4495); (d) the City
Fiscal of Manila (R. A. No. 4631) and (e) the Securities and Exchange
Commissioner (R. A. No. 5050, s. 2). To adopt petitioner's theory,
therefore, would mean placing upon the Supreme Court the duty of

investigating and disciplining all these officials, whose functions are

plainly executive, and the consequent curtailment by mere
implication from the Legislative grant, of the President's power to
discipline and remove administrative officials who are presidential
appointees, and which the Constitution expressly placed under the
President's supervision and control (Constitution, Art. VII, sec. 10[i]).
Incidentally, petitioner's stand would also lead to the conclusion that
the Solicitor General, another appointee of the President, could not be
removed by the latter, since the Appropriation Acts confer upon the
Solicitor General the rank and privileges of a Justice of the Court of
Appeals, and these Justices are only removable by the Legislature,
through the process of impeachment (Judiciary Act, sec. 24, par. 2).
In our opinion, such unusual corollaries could not have been intended
by the Legislature when it granted these executive officials the rank
and privileges of Judges of First Instance. This conclusion gains
strength when account is taken of the fact that in the case of the
Judges of the Court of Agrarian Relations and those of the Court of Tax
Appeals, the organic statutes of said bodies (Republic Act 1267, as
amended by Act 1409; Rep. Act No. 1125) expressly provide that they
are to be removed from office for the same causes and in the same
manner provided by law for Judges of First Instance", or "members of
the judiciary of appellate rank". The same is true of Judges of the Court
of Agrarian Relations (Comm. Act No. 103) and of the Commissioner of
Public Service (Public Service Act, Sec. 3). It is thereby shown that
where the legislative design is to make the suspension or removal
procedure prescribed for Judges of First Instance applicable to other
officers, provision to that effect is made in plain and unequivocal
language.
But the more fundamental objection to the stand of petitioner Noblejas
is that, if the Legislature had really intended to include in the general
grant of "privileges" or "rank and privileges of Judges of the Court of
First Instance" the right to be investigated by the Supreme Court, and
to be suspended or removed only upon recommendation of that Court,
then such grant of privileges would be unconstitutional, since it would
violate the fundamental doctrine of separation of powers, by charging
this court with the administrative function of supervisory control over
executive officials, and simultaneously reducing pro tanto the control of
the Chief Executive over such officials.
Justice Cardozo ruled in In re Richardson et al., Connolly vs. Scudder
(247 N. Y. 401, 160 N. E. 655), saying:
There is no inherent power in the Executive or Legislature to
charge the judiciary with administrative functions except
when reasonably incidental to the fulfillment of judicial
duties.
The United States Supreme Court said in Federal Radio Commission
vs. General Electric Co., et al., 281 U.S. 469, 74 Law. Ed., 972,
But this court cannot be invested with jurisdiction of that
character, whether for purposes of review or otherwise. It
was brought into being by the judiciary article of the
Constitution, is invested with judicial power only and can
have no jurisdiction other than of cases and controversies
falling within the classes enumerated in that article. It cannot
give decisions which are merely advisory; nor can it exercise
or participate in the exercise of functions which are
essentially legislative or administrative. Keller v. Potomac
Electric Power Co., supra (261 U.S. 444, 67 L. ed. 736, 43
Sup. Ct. Rep. 445) and cases cited; Postum Cereal Co. vs.
California Fig Nut Co. supra (272 U.S. 700, 701, 71 L. ed.
481, 47 Sup. Ct. Rep. 284); Liberty Warehouse Co. v.

Grannis, 273 U.S. 70, 74, 71 L. ed. 541, 544, 47 Sup. Ct.
Rep. 282; Willing v. Chicago Auditorium Asso. 277 U.S. 274,
289, 72 L. ed. 880, 884, 48 Sup. Ct. Rep. 507; Ex
parte Bakelite Corp. 279 U.S. 438, 449, 73 L. ed. 789, 793,
49 Sup. Ct. Rep. 411. (Federal Radio Commission v.
General Electric Company, 281 U.S. 469, 74 L. ed. 972.)
(Emphasis supplied.)
In this spirit, it has been held that the Supreme Court of the Philippines
and its members should not and cannotbe required to exercise any
power or to perform any trust or to assume any duty not pertaining to
or connected with the administration of judicial functions; and a law
requiring the Supreme Court to arbitrate disputes between public
utilities was pronounced void in Manila Electric Co. vs. Pasay
Transportation Co. (57 Phil. 600).1wph1.t
Petitioner Noblejas seeks to differentiate his case from that of other
executive officials by claiming that under Section 4 of Republic Act No.
1151, he is endowed with judicial functions. The section invoked runs
as follows:
Sec. 4. Reference of doubtful matters to Commissioner of
Land Registration. When the Register of Deeds is in
doubt with regard to the proper step to be taken or
memorandum to be made in pursuance of any deed,
mortgage, or other instrument presented to him for
registration, or where any party in interest does not agree
with the Register of Deeds with reference to any such
matter, the question shall be submitted to the Commissioner
of Land Registration either upon the certification of the
Register of Deeds, stating the question upon which he is in
doubt, or upon the suggestion in writing by the party in
interest; and thereupon the Commissioner, after
consideration of the matter shown by the records certified to
him, and in case of registered lands, after notice to the
parties and hearing, shall enter an order prescribing the step
to be taken or memorandum to be made. His decision in
such cases shall be conclusive and binding upon all
Registers of Deeds: Provided, further, That, when a party in
interest disagrees with the ruling or resolution of the
Commissioner and the issue involves a question of law, said
decision may be appealed to the Supreme Court within thirty
days from and after receipt of the notice thereof.
Serious doubt may well be entertained as to whether the resolution of
a consulta by a Register of Deeds is a judicial function, as contrasted
with administrative process. It will be noted that by specific provision of
the section, the decision of the Land Registration Commissioner "shall
be conclusive and binding upon all Registers of Deeds" alone, and not
upon other parties. This limitation1 in effect identifies the resolutions of
the Land Registration Commissioner with those of any other bureau
director, whose resolutions or orders bind his subordinates alone. That
the Commissioner's resolutions are appealable does not prove that
they are not administrative; any bureau director's ruling is likewise
appealable to the corresponding department head.
But even granting that the resolution of consultas by the Register of
Deeds should constitute a judicial (or more properly quasi judicial)
function, analysis of the powers and duties of the Land Registration
Commissioner under Republic Act No. 1151, sections 3 and 4, will
show that the resolution of consultas are but a minimal portion of his
administrative or executive functions and merely incidental to the latter.
Conformably to the well-known principle of statutory construction that
statutes should be given, whenever possible, a meaning that will not
bring them in conflict with the Constitution,2 We are constrained to rule

that the grant by Republic Act 1151 to the Commissioner of Land

Registration of the "same privileges as those of a Judge of the Court of
First Instance" did not include, and was not intended to include, the
right to demand investigation by the Supreme Court, and to be
suspended or removed only upon that Court's recommendation; for
otherwise, the said grant of privileges would be violative of the
Constitution and be null and void. Consequently, the investigation and
suspension of the aforenamed Commissioner pursuant to sections 32
and 34 of the Civil Service Law (R. A. 2260) are neither abuses of
discretion nor acts in excess of jurisdiction.
WHEREFORE, the writs of prohibition and injunction applied for are
denied, and the petition is ordered dismissed. No costs.
EN BANC
G.R. No. L-30001 June 23, 1970
THE DIRECTOR OF PRISONS and THE EXECUTIVE
SECRETARY, petitioners,
vs.
ANG CHO KIO @ ANG MING HUY and THE COURT OF
APPEALS, respondents.
ZALDIVAR, J.:
An appeal by certiorari, by the Solicitor General in behalf of the
Director of Prisons and the Appeals in CA-G.R. No. 39018-R of said
Court, entitled "Ang Cho Kio (Ang Ming Huy) Petitioner-Appellee
versus The Director of Prisons and the Executive Secretary,
Respondents-Appellees." 1 In his petition the Solicitor General prays
this Court "to render judgment ordering the striking out from said
decision of the portions recommending to the Executive Secretary 'to
allow the (petitioner) (respondent Ang Cho Kio @ Ang Ming Huy) to
leave this country in the first available transportation abroad' but
otherwise affirming the dismissal of the petition for habeas corpus, with
costs in all instances against respondent Ang Cho Kio @ Ang Ming
Huy."
The pertinent facts for the purposes of this decision, as shown in the
record, are as follows:
Respondent Ang Cho Kio @ Ang Ming Huy had been charged, tried
and convicted of various offenses committed in the Philippines and
was sentenced to suffer penalties, to wit: a total of forty-five (45) years,
ten (10) months and twenty one (21) days of imprisonment, P6,000
indemnity, and P5,000 moral damages, plus life imprisonment and
P6,000 indemnity. 2 After serving six and one-half (6-) years of his
sentence said respondent was granted conditional pardon on July 4,
1959 by the President of the Philippines. The conditional pardon partly
reads as follows:
By virtue of the authority conferred upon me by the
Constitution, and upon the recommendation of the Board of
Pardons and Parole, the unexecuted portions of the prison
terms of prisoner ANG CHO KIO @ KIWA @ PHILIPP ANG
@ ANG TIU CHIO @ KE WA @ LUCIO LEE @ GO ONG @
MR. ANG @ GO ANG @ MR. ONG is hereby remitted on
condition that he will voluntarily leave the Philippines upon
his release and never to return to this country. Should the
above-named prisoner refuse to accept said condition, be
shall continue serving his sentence and upon the expiration
thereof, he shall be deported from the Philippines for being
an undesirable alien.

Ang Cho Kio duly accepted the conditions of his pardon and
actually left the Philippines for Taipeh, Nationalist China, on
July 28, 1959.
In the evening of June 26, 1966 Ang Cho Kio arrived at the Manila
International Airport on a Philippine Air Lines plane from Taipeh,
travelling under the name "Ang Ming Huy." He held a round-trip ticket
from Taipeh to Honolulu, to San Francisco, to Los Angeles, to Chicago,
to Washington D.C. to New York, to Vancouver, to Tokyo, to Seoul, to
Osaka, to Taipeh to Bangkok, to Saigon, to Hongkong and back to
Taipeh. He was booked on Philippine Air Lines earliest connecting
flight to Honolulu on June 29, 1966 at 6:30 p.m., or with a stop-over of
about 72 hours in Manila. He surrendered his passport to the
immigration authorities at the Manila International Airport, and was
issued a note that his departure was scheduled for June 29, 1966 at
6:30 p.m. He left his luggage at the airport and was issued claim tags.
He registered for a three-day stay at the El Presidente Hotel at
Paraaque, Rizal. He contacted his two friends in Manila, Lim Pin and
Go Bon Kim. These two friends invited him to stay longer in the
Philippines. On June 28, 1966 he and his two friends went to the
Bureau of Immigration, where his friend Lim Pin signed a letter
addressed to the Commissioner of Immigration requesting for a
fourteen-day extension of stay in the Philippines for him. Ang Cho Kio
was identified by inspector Mariano Cristi of the Immigration Bureau as
the Ang Cho Kio who was deported to Taipeh on July 18, 1959. His
identity having been established, Ang Cho Kio was arrested, and the
immigration authorities conducted an investigation regarding his
presence in the Philippines. The immigration authorities did not allow
him to proceed with his trip to Honolulu. On July 5, 1966 the Executive
Secretary, by authority of the President, ordered him recommitted to
prison to serve the unexpired portion of the sentence that were
imposed on him, for having violated the conditioned of his pardon. The
supplemental order of recommitment reads as follows:
TO THE DIRECTOR OF PRISONS
MUNTINLUPA, RIZAL
WHEREAS, ANG CHO KIO @ KIWA & PHILIPP ANG @
ANG TIU CHIO @ KI WA @ LUCIO DEE @ GO ONG @
MR. ANG @ GO ANG @ MR. ONG was granted conditional
pardon by the President of the Philippines on July 4, 1959,
upon the condition that he will voluntarily leave the
Philippines upon his release and never to return to this
country; and
WHEREAS, said ANG CHO KIO has violated the condition
of his pardon in that on June 26, 1966, he returned to this
country from Taipei and gained entry under an assumed
name, ANG MING HUY, failed to leave on the first available
connecting flight to Honolulu, his alleged destination; instead
requested a fourteen day extension of his 72-hour transient
stop-over; and had in December 1965 applied for a
temporary visitor's visa to Manila also under his assumed
name, ANG MING HUY;
NOW, THEREFORE, by virtue of the authority conferred
upon the President of the Philippines by Section 64(i) of the
Revised Administrative Code, you are hereby ordered to
recommit to prison said ANG CHO KIO @ KIWA @ PHILIPP
ANG @ ANG TIU CHIO @ KI WA @ LUCIO DEE @ GO
ONG @ MR. ANG @ GO ANG @ MR. ONG @ ANG MING
HUY to serve the unexpired portion of the sentences for
which he was originally committed to prison, and upon
expiration thereof, to deliver said person to the custody of
the Commissioner of Immigration for immediate deportation
for being an undesirable alien.

Manila, July 5, 1966.

By Authority of the President: (Sgd.) RAFAEL M. SALAS
Executive Secretary RS/ara.
Ang Cho Kio filed with the Executive Secretary a motion, dated August
29, 1966, for the reconsideration of the supplemental order of
recommitment. The Executive Secretary failed to act on the motion for
reconsideration, and so on October 5, 1966 Ang Cho Kio filed a
petition for a writ of habeas corpus with the Court of First Instance of
Rizal (Pasay Branch), making as respondents in said petition the
Director of Prisons and the Executive secretary. Under date of October
10, 1966, the officer-in-charge of the Bureau of Prisons filed his return.
Under date of October 17, 1966, the Solicitor General filed a return for
the Director of Prisons and the Executive Secretary.
After due hearing the Court of First Instance of Rizal, on January 31,
1967, rendered a decision dismissing the petition for habeas corpus.
The Court of First Instance of Rizal held that Ang Cho Kio @ Ang Ming
Huy was validly recommitted to prison by the President of the
Philippines in the exercise of his prerogatives pursuant to the
provisions of Section 64(i) of the Revised Administrative Code.
Ang Cho Kio appealed to the Court of Appeals from the decision of the
Court of First Instance of Rizal. In the decision of a special division of
five justices, with three justices concurring, and two justices concurring
and dissenting, the Court of Appeals rendered a decision which in
effect affirmed the decision of the Court of First Instance of Rizal
dismissing Ang Cho Kio's petition for habeas corpus.
We read the following in the majority opinion:
It having been settled that Section 64(i) of the Revised
Administrative Code is still in force, and that the respondent
Executive Secretary, in the name and by authority of the
President, exercised the power of recommitment herein
under the provisions of said Code, and not under Art. 159 of
the Revised Penal Code, it becomes apparent that any
discussion regarding failure to file the corresponding
indictment and the presence or absence of criminal intent,
will be off-tangent. On the contrary, the issue, in this
connection, is whether the courts of justice may interfere in
the exercise by the President, thru his Executive Secretary,
of his administrative power of recommitment. Again, it is
settled jurisprudence that the Chief Executive may
determine, alone and by himself, whether the condition
attached to a pardon given by him has been violated; and in
the exercise of this prerogative, the courts may not interfere,
however erroneous the findings may be (Espuelas v. The
Provincial Warden, supra; Tesoro v. Director of Prisons, 68
Phil. 154).
The aforequoted portion of the majority opinion affirms the reasons of
the Court of First Instance of Rizal in dismissing the petition for habeas
corpus. However, the majority opinion contains the recommendation
that Ang Cho Kio
... be sent out at once from this country and that he be
allowed to leave Muntinlupa Prisons under guard only when
he has been booked for outward flight at the Manila
International Airport so as to avoid the possibility of any
further violation of his conditional pardon. At any rate it would
be to the best interest of the security and peace of this
country to have the petitioner expatriated from the
Philippines, instead of being recommitted for a long duration

of time to prison where his presence may constitute a

constant menace to our country's welfare and bring about
some sinister influence among the people with whom he will
associate or come in contact.
Then the dispositive portion of the majority opinion reads as follows:
FOR ALL OF THE FOREGOING REASONS, the petition
herein filed is hereby dismissed, with costs against the
petitioner, and with a reiteration of the recommendation to
allow the petitioner to leave this country in the first available
transportation abroad made in the course of this decision.
Let a copy of this decision be furnished the Executive
Secretary.
The concurring and dissenting opinion of the two justices opens with
the following statement:
We concur with the majority opinion insofar as the dismissal
of the petition for writ of habeas corpusof petitioner-appellant
Ang Cho Kio is concerned, for such dismissal, in effect, is
equivalent to an affirmance of the appealed decision.
However, we beg to dissent from that portion of the majority
opinion recommending that said petitioner-appellant be
allowed to leave this country by the first available
transportation.
In due time the Solicitor General filed with the Court of Appeals a
motion for reconsideration, praying for the deletion from the majority
opinion of the recommendation to allow Ang Cho Kio to leave the
country on the first available transportation abroad. The Court of
Appeals, by a vote of three to two in the special division which decided
the case, denied the motion. Hence this appeal by certiorari by the
Solicitor General to this Court.
It is now contended by the Solicitor General that the majority of the
special division of five justices of the Court of Appeals erred in making
a recommendation to allow respondent Ang Cho Kio to have this
country on the first available transportation abroad. The Solicitor
General maintains that the recommendation is not a part of the
decision binding upon the parties, and is uncalled for; that it gives the
decision a political complexion, because courts are not empowered to
make such a recommendation, nor is it inherent or incidental in the
exercise of judicial powers; that there is no law which gives the court
the authority to recommend to the President the voluntary departure of
an undesirable alien who is lawfully committed to jail; that the
deportation of aliens sentenced by the courts for violation of the laws of
the land, and even the act of merely allowing such convicted aliens to
voluntarily leave the country, is an act of state exercised solely in the
discretion of the Chief Executive. It is urged by the Solicitor General
that the act of sending an undesirable alien out of the country is
political in character, and the courts should not interfere with, nor
attempt to influence, the political acts of the Chief Executive.
In a motion dated April 7, 1969, Ang Cho Kio manifested that he
waived his right to file an answer to any brief filed by the Solicitor
General. 4
We agree with the Solicitor General. The case before the Court of
Appeals was for habeas corpus. The only question to be resolved by
the Court of Appeals was whether, or not, the Court of First Instance of
Rizal, had rightly dismissed the petition of Ang Cho Kio for habeas
corpus. The Court of Appeals was not called upon to review any
sentence imposed upon Ang Cho Kio. The sentence against him had
long become final, and, in fact, he has served part of the sentence

when he was extended pardon on July 4, 1959, upon the condition that
he should leave the country, never to return. The opinion of the three
justices of the special division of the Court of Appeals, to which the two
other justices have concurred, found that the recommitment to prison
of Ang Cho Kio was done in the exercise by the President of the
Philippines of his power pursuant to the provision of Section 64(i) of
the Revised Administrative Code, and the courts should not interfere
with the exercise of that power. The majority opinion should have been
limited to the affirmance of the decision of the lower court, and no
more.
The recommendatory power of the courts in this jurisdiction are limited
to those expressly provided in the law and such law is the provision
of Section 5 of the Revised Penal Code, as follows:
Whenever a court has knowledge of any act which it may
deem proper to repress and which is not punishable by law,
it shall render the proper decision, and shall report to the
Chief Executive, through the Department of Justice, the
reasons which induce the court to believe that said act
should be made the subject of penal legislation.
In the same way the court shall submit to the Chief
Executive, through the Department of Justice such
statement as may be deemed proper, without suspending
the execution of the sentence, when a strict enforcement of
the provisions of this Code would result in the imposition of a
clearly excessive penalty, taking into consideration the
degree of malice and the injury caused by the offense.
Certainly, the recommendation in the majority opinion of the special
division of the Court of Appeals, now in question, is not authorized
under the aforequoted provision of Article 5 of the Revised Penal
Code. The Court of Appeals was not called upon to review any
sentence that was imposed on Ang Cho Kio. It was simply called upon
to determine whether Ang Cho Kio was illegally confined, or not, in the
insular penitentiary under the Director of Prisons. We do not consider it
proper that the majority of the justices in the special division make a
recommendation that would suggest a modification or a correction of
the act of the Chief Executive, after the same justices have said in their
opinion "that the Chief Executive may determine, alone and by himself,
whether the condition attached to a pardon given by him had been
violated; and in the exercise of this prerogative, the courts may not
interfere, however erroneous the findings may be." When the Chief
Executive, exercising his powers pursuant to Section 64(i) of the
Revised Administrative Code, ordered Ang Cho Kio recommitted to
prison, it is assumed that the Chief Executive had decided that Ang
Cho Kio should be dealt with that way under the circumstances. For
the court to suggest to the Chief Executive to modify his decision to
recommit Ang Cho Kio to prison by allowing him to leave the country
instead is indeed to interfere with the functions of the Chief Executive.
It would be, as urged by the Solicitor General, an interference on, or an
attempt to influence, the exercise by the Chief Executive of the political
powers of his office. The matter of whether an alien who violated the
laws in this country may remain or be deported is a political question
that should be left entirely to the Chief Executive to decide. Under the
principle of separation of powers, it is not within the province of the
judiciary to express an opinion, or express a suggestion, that would
reflect on the wisdom or propriety of the action of the Chief Executive
on matters purely political in nature.
It may be said that the recommendation embodied in the majority
opinion of the special division of the Court of Appeals simply
represents the private opinion of the three justices, and judges should
be left free to express even their private opinions in judicial decisions.
We believe, however, that the better practice should be that the

decision of a court should contain only opinion that is relevant to the

question that is before the court for decision. After all, courts are not
concerned with the wisdom or morality of laws, but only in the
interpretation and application of the law. We believe that judges should
refrain from expressing irrelevant opinions in their decisions which may
only reflect unfavorably upon their competence and the propriety of
their judicial actuations.
However, of the ten members of the Court, as presently constituted,
only five are of the opinion that the recommendation embodied in the
decision of the majority of the special division of the Court of Appeals,
now in question, should be deleted from the decision. 5 Two members
of the Court are of a different opinion, 6 and three others did not take
part in the decision because of their official actuations relative to the
case of respondent Ang Cho Kio before it reached this Court. 7 There
is, therefore, one vote less than the majority of the Court that is
necessary to grant the certiorari prayed for.
WHEREFORE, the petition for writ of certiorari is denied, and the
decision of the special division of the Court of Appeals stands. No
costs.
Concepcion, C.J., Reyes, J.B.L. and Dizon, JJ., concur.
Teehankee, Barredo and Villamor, JJ., took no part.