G.R. No.
L-46863 November 18, 1939 This is a petition for review by certiorari of the judgment of the Court of Appeals
IRINEO MOYA, petitioner,
vs.
AGRIPINO GA. DEL FIERO, respondent.
Elpidio Quirino for petitioner.
Claro M. Recto for respondent.
ELECTION; APPRECIATION OF BALLOTS; TECHNICAL, RULES SHOULD
NOT DEFEAT INTENTION OF VOTES.As long as popular government is an
end to be achieved and safeguarded, suffrage, whatever may be the modality
and form devised, must continue to be the means by which the great reservoir of
power must be emptied into the receptacular agencies wrought by the people
through their Constitution in the interest of good government and the common
weal. Republicanism, in so far as it implies the adoption of a representative type
of government, necessarily points to the enfranchised citizen as a particle of
popular sovereignty and as the ultimate source of the established authority. He
has a voice in his Government and whenever possible it is the duty of the
judiciary, when called upon to act in justiciable cases, to give it efficacy and not to
stifle or frustrate it. This, fundamentally, is the reason for the rule that ballots
should be read and appreciated, if not -with utmost, with reasonable, .liberality. .
Counsel for both parties have called our attention to the different and divergent
rules laid down by this court on the appreciation of ballot. It will serve no good
and useful purpose for us, to engage in the task of reconciliation or
harmonization of these rules, although this may perhaps be undertaken, as no
two cases will be found to be exactly the same in factual or legal environment. It
is sufficient to observe, however, in this connection that whatever might have
been said in cases heretofore decided, no technical rule or rules should be
permitted to defeat the intention of the voter, if that intention is discoverable from
the ballot itself, not from evidence aliunae. This rule of interpretation goes to the
very root of the system. Rationally, also, this must be the justification for the
suggested liberalization of the rules on appreciation of ballots which are now
incorporated in section 144 of the Elec-tion Code (Comm. Act No. 367).
LAUREL, J.:
in the above entitled case declaring the respondent, Agripino Ga. del Fierro, the
candidate-elect for the office of mayor of the municipality of Paracale, Province of
Camarines Norte, with a majority of three votes over his rival, Irineo Moya. In the
general elections held on December 14, 1937, the parties herein were
contending candidates for the aforesaid office. After canvass of the returns the
municipal council of Paracale, acting as board of canvassers, proclaimed the
petitioner as the elected mayor of said municipality with a majority of 102 votes.
On December 27, 1937, the respondent field a motion of protest in the Court of
First Instance of Camarines Norte, the Court of Appeals, on July 13, 1939
rendered the judgment hereinbefore mentioned which is sought by the petitioner
to be reviewed and reversed upon the errors alleged to have been committed by
the Court of Appeals:
1. In admitting and counting in favor of the respondent, 8 ballots either
inadvertently or contrary to the controlling decisions of this Honorable
Court.
2. In admitting and counting in favor of the respondent, 3 ballots marked
"R. del Fierro."
3. In admitting and counting in favor of the respondent, 7 ballots marked
"Rufino del Firro."
4. In admitting and counting in favor of the respondent, 72 ballots marked
"P. del Fierro."
Taking up seriatim the alleged errors, we come to the first assignment involving
the eight (8) ballots now to be mentioned. (1) With reference to ballot Exhibit F-
175 in precinct No. 2, alleged to have been inadvertently admitted in favor of the
respondent, such inadvertence raises a question of fact which could have been
corrected by the Court of Appeals and which could we are not in a position to
determine in this proceeding for review by certiorari. Upon the other hand, if the
error attributed to the Court of Appeals consisted in having admitted ballot Exhibit
F-175 in precinct No. 2 instead of the ballot bearing the same number
corresponding to precinct No. 1, and this latter ballot clearly appears admissible
for the respondent because the name written on the space for mayor is "Primo
del Fierro" or "Pimo de Fierro", the error is technical and deserves but scanty
consideration. (2) Ballot Exhibit F-26 in precinct No. 3 was erroneously admitted
for the respondent by the Court of Appeals, the name written on the space for
mayor being "G.T. Krandes." It is true that on the fourth line for the councilor
"Alcalde Pinong del Fierro": appears; but the intention of the elector is rendered
vague and incapable of ascertaining and the ballot was improperly counted for
the respondent. As to this ballot, the contention of the petitioner is sustained (3)
Ballot Exhibit F-77 in precinct No. 2 should also have been rejected by the Court
of Appeals. The ballot bears the distinguishing mark "O. K." placed after the
name "M. Lopis" written on space for vice-mayor. The contention of the petitioner
in this respect is likewise sustained. (4) Ballot Exhibit F-9 in precinct No. 2 was
properly admitted for respondent. On this ballot the elector wrote within the space
for mayor the name of Regino Guinto, a candidate for the provincial board and
wrote the respondent's name immediately below the line for mayor but
immediately above the name "M. Lopez" voted by him for vice-mayor. The
intention of the elector to vote for the respondent for the office of the mayor is
clear under the circumstances. (5) Ballot F-131 in precinct No. 1 was also
properly counted for the respondent. On this ballot the elector wrote the
respondent's name on the space for vice-mayor, but, apparently realizing his
mistake, he placed an arrow connecting the name of the respondent to the word
"Mayor" (Alcalde) printed on the left side of the ballot. The intention of the elector
to vote for the respondent for the office of mayor is thus evident, in the absence
of proof showing that the ballot had been tampered with. (6) Ballot F-7 in precinct
No. 5 is admissible for the respondent and the Court of Appeals committed no
error in so adjudicating. Although the name of the respondent is written on the
first space for member of the provincial board, said name is followed in the next
line by "Bice" Culastico Palma, which latter name is followed in the next line by
word "consehal" and the name of a candidate for this position. The intention of
the elector to vote for the respondent for the office of mayor being manifest, the
objection of the petitioner to the admission of this ballot is overruled. (7) Ballot F-
1 in precinct No. 2 is valid for the respondent. On this ballot the Christian name of
the respondent was written on the second space for member of the provincial
board, but his surname was written on the proper space for mayor with no other
accompanying name or names. The intention of the elector being manifest, the
same should be given effect in favor of the respondent. (8) Ballot F-44 in precinct
No. 2 wherein "Agripino F. Garcia" appears written on the proper space, is valid
for the respondent. In his certificate of candidacy the respondent gave his name
as "Agripino Ga. del Fierro." The conclusion of the trial court, upheld by the Court
of Appeals, that the letter "F" stands for "Fierro" and "Garcia" for the contraction
"Ga." is not without justification and, by liberal construction, the ballot in question
was properly admitted for the respondent.
The second error assigned by the petitioner refers to three ballots, namely,
Exhibit F-119 in precinct No. 1 Exhibit F-24 in precinct No. 2, and Exhibit F-6 in
precinct No. 4. These three ballots appear to be among the 75 ballots found by
the Court of Appeals as acceptable for the respondent on the ground that the
initial letter "P" stands for "Pino" in "Pino del Fierro" which is a name mentioned
in the certificate of candidacy of the respondent. The petitioner contends that the
initial "R" and not "P". Even if we could reverse this finding, we do not feel
justified in doing so after examining the photostatic copies of these ballots
attached to the herein petition for certiorari. The second assignment of error is
accordingly overruled.
Upon the third assignment of error, the petitioner questions the correctness of the
judgment of the Court of Appeals in adjudicating to the respondent the seven
ballots wherein "Rufino del Fierro" was voted for the office of mayor. We are of
the opinion that the position taken by the Court of Appeals is correct. There was
no other candidate for the office of mayor with the name of "Rufino" or similar
name and, as the respondent was districtly identified by his surname on these
ballots, the intention of the voters in preparing the same was undoubtedly to vote
for the respondent of the office for which he was a candidate.lawphi1.net
The fourth assignment of error deals with the 72 ballots wherein "P. del Fierro"
was voted for the office of mayor, and it is the contention of the petitioner that
said ballots should not have been counted by the Court of Appeals in favor of the
respondent. For the identical reason indicated under the discussion of petitioner's
second assignment of error, namely, that "P" stands for "Pino" in "Pino del Fierro"
which is a name mentioned in the certificate of candidacy of the respondent, we
hold that there was no error in the action of the Court of Appeals in awarding the
said ballots to the respondent.
With the exception of ballot marked as Exhibit F-26 in precinct No. 3 and ballot
marked as Exhibit F-77 in precinct No. 2, we are inclined to accept the rest of the
disputed ballots for the respondent not only for the specific reasons already given
but also and principally for the more fundamental reason now to be stated. As
long as popular government is an end to be achieved and safeguarded, suffrage,
whatever may be the modality and form devised, must continue to be the manes
by which the great reservoir of power must be emptied into the receptacular
agencies wrought by the people through their Constitution in the interest of good
government and the common weal. Republicanism, in so far as it implies the
adoption of a representative type of government, necessarily points to the
enfranchised citizen as a particle of popular sovereignty and as the ultimate
source of the established authority. He has a voice in his Government and
whenever called upon to act in justifiable cases, to give it efficacy and not to stifle
it. This, fundamentally, is the reason for the rule that ballots should be read and
appreciated, if not with utmost, with reasonable, liberality. Counsel for both
parties have called our attention to the different and divergent rules laid down by
this Court on the appreciation of ballots. It will serve no good and useful purpose
for us to engage in the task of reconciliation or harmonization of these rules,
although this may perhaps be undertaken, as no two cases will be found to be
exactly the same in factual or legal environment. It is sufficient to observe,
however, in this connection that whatever might have been said in cases
heretofore decided, no technical rule or rules should be permitted to defeat the
intention of the voter, if that intention is discoverable from the ballot itself, not
from evidence aliunde. This rule of interpretation goes to the very root of the
system. Rationally, also, this must be the justification for the suggested
liberalization of the rules on appreciation of ballots which are now incorporated in
section 144 of the Election Code (Commonwealth Act No. 357).
It results that, crediting the petitioner with the two ballots herein held to have
been erroneously admitted by the Court of Appeals for the respondent, the latter
still wins by one vote. In view whereof it becomes unnecessary to consider the
counter-assignment of errors of the respondent.
With the modification of the decision of the Court of Appeals, the petition for the
writ of certiorari is hereby dismissed, without pronouncement regarding costs.
G.R. No. L-29333 February 27, 1969
MARIANO LL. BADELLES, protestant-appellant,
vs.
CAMILO P. CABILI, protegee-appellee.
--------------------------
G.R. No. L-29334 February 27, 1969
BONIFACIO P. LEGASPI and CECILlO T. BARAZON protestants-appellants,
vs.
FELIX Z. ACTUB, PROVIDENCIO P. ABRAGAN, MANUEL F. CELDRAN,
CASIMERO P. CABIGON and BENITO ONG, protestees-appellees.
Bonifacio P. Legaspi for and in his own behalf.
Camilo P. Cabili. Gerardo B. Padilla and Ignacio Espaol and Voltaire I. Roviro
for protestees-appellees.
Elections; Dismissal of election protest alleging frauds; Dismissal amounts to
judicial abnegation to inquire into and pass upon irregularities of election.The
seriousness and gravity of the imputed failure to have the elections conducted
freely and honestly, with such irregularities alleged, give rise to doubts, rational
and honest, as to who were the duly elected officials. Such allegations, it is to be
stressed, would have to be accepted at their face value for the purpose of
determining whether there is a cause of action, a motion to dismiss amounting to
a hypothetical admission of facts thus pleased. Without the lower court having so
intended, the dismissal would amount to judicial abnegation of a sworn duty to
inquire into and pass upon in an appropriate proceeding allegations of
misconduct and misdeeds of such character.
Barredo, J., concurring:
Elections; Protest must not necessarily allege the effect of true results.In an
election protest, it is not necessary to allege that the true results of the election in
question would be in f avor of protestant and against protestee on the basis of
the legal votes, or that the proclaimed result would be changed if the facts
alleged are proven, when the sole ground of protest and the only purpose of the
protestant is to have the whole election in a precinct or municipality annulled and
set aside.
FERNANDO, J.:
Two election protests against the duly proclaimed Mayor and Councilors of Iligan
City, after the Nov. 14, 1967 elections, based on the allegations of flagrant
violations of certain mandatory provisions of the Election Code, to be more
specifically set forth hereafter, were dismissed in a single order by the Court of
First Instance of Lanao del Norte, the Honorable Teodulo C. Tandayag presiding.
The cases are now before us on appeal.
In one of them, 1 the election of Honorable Camilo P. Cabili to the Office of City
Mayor of Iligan City, was contested by protestant, now appellant, Mariano
Badelles. In the other, 2 the protestants are the now appellants, Bonifacio P.
Legaspi and Cecilia T. Barazon who along with the five protestees 3 were among
those who were registered candidates voted for in such election for councilors in
the City of Iligan, with the protestees being credited with the five highest number
of votes, with protestants Legaspi and Barazon obtaining sixth and seventh
places, respectively.
In such order of dismissal, it was admitted that while irregularities as well as
misconduct on the part of election officers were alleged in the election protests
filed, there was however an absence of an allegation that they would change the
result of the election in favor of the protestants and against the protestees, that
such irregularities would destroy the secrecy and integrity of the ballots cast, or
that the protestees knew of or participated in the commission thereof. For the
lower court then, the lack of a cause of action was rather evident.
Hence the order of dismissal of March 23, 1968, which was sought to be fortified
by the invocation of the doctrines that voters should not be deprived of their right
to vote occasioned by the failure of the election officials to comply with the formal
prerequisites to the exercise of the right of suffrage and that the rules and
regulations for the conduct of elections while mandatory before the voting should
be considered directory thereafter. The validity of such order of dismissal is now
to be inquired into by us in this appeal.
In the petition of protestant Badelles, dated December 8, 1967, and marked as
received the next day by the Clerk of Court of the Court of First Instance of Lanao
del Norte, 15th Judicial District, it was stated that both he and protestee Camilo
P. Cabili were the duly registered candidates for the Office of City Mayor of Iligan
City, both having filed their respective certificates of candidacy in accordance
with law and as such candidates voted for in the November 14, 1967 election. It
was then alleged that the Board of Canvassers, on November 25, 1967,
proclaimed as elected protestee for having obtained 11,310 votes while
protestant was credited with 8,966 votes. Protestant would impugn the election of
Cabili on the ground that there were "flagrant violation of mandatory provisions of
law relating to or governing elections ...." in that more than 200 voters were
registered per precinct contrary to the provision limiting such number of 200 only
and that no publication of the list of voters for each precinct was made up to the
election day itself, enabling persons who under the law could not vote being
allowed to do so. As a result of such alleged "flagrant violations of the laws
relation to or governing elections" around 8,300 individuals were allowed to vote
illegally.
It was likewise asserted that not less than 8,000 qualified voters were unable to
exercise their right of suffrage in view of their failure, without any fault on their
part, to have the proper identification cards or the non-listing of their names in the
list of voters. It was stated further that even in the case of those individuals
provided with identification cards with their names included in the list of voters,
they could not avail themselves of their right of suffrage as their applications for
registration could not be found. Mention was also made of the fact that the final
lists of voters and the applications for registration were delivered to their
respective precincts late on election day itself thus preventing them from voting.
Moreover, confusion, so it was alleged, was caused by the excessive number of
voters being listed and many having been assigned to precincts other than the
correct ones.
What was thus objected to is the fact that illegal votes were cast by those not
qualified to do so, numbering 8,300 or more and that an approximately equal
number, who were duly registered with the Commission on Elections, Iligan City,
were unable to vote due to the above circumstances. The proclamation then
could not have reflected the true will of the electorate as to who was the mayor
elected, as the majority of protestee Cabili over the protestant consisted of only
2,344 votes.
The prayer was among others for the proclamation of protestee as well as other
candidates for elective positions in the City of Iligan being set aside and declared
null and void, protestant pleading further that he be granted other such relief as
may be warranted in law and equity.
The protest of the candidates for councilor Legaspi and Barazon in the other
case against protestees 4 was in substance similarly worded. The prayer was for
the setting aside and declaring null and void the proclamation of protestees with
protestants seeking such other relief which should be theirs according to law and
to equity.
In the first case, protestee Cabili moved to dismiss the petition on the following
grounds: "1. That the protest was filed beyond the reglementary period allowed
by the Revised Election Code; 2. That [the lower court] has no jurisdiction over
the subject matter of the present case, the Commission on Elections being the
proper body to hear the same; 3. That the complaint states no cause of
action." 5 This very same grounds were relied upon in a motion to dismiss by
protestees Actub and Cabigon, filed in the other suit.
As above noted, in a single order of March 23, 1968, the two above election
protests were dismissed, the lower court being of the opinion that neither petition
alleged a cause of action "to justify [it] to try the same." The first ground of the
motion to dismiss to the effect that the protests in both cases were filed beyond
the reglementary period was rejected. The claim as to lack of jurisdiction was
likewise held to be without merit. The single order of dismissal in both cases as
indicated was based on the lack of a cause of action.
The reasoning followed by the lower court in reaching the above conclusion that
there was no cause of action, proceeded along these lines: "Mere irregularities or
misconduct on the part of election officers which do not tend to affect the result of
the elections are not of themselves either ground for contest or for proper matters
of inquiry... There is no allegation in the protest that the alleged irregularities
committed by the election officers would tend to change the result of the election
in favor of the protestants and against the protestees. There is no allegation in
the petition that the 8,000 voters who failed to vote were all voters of protestants
and the 8,300 illegal voters who voted were for the protestees. There is,
therefore, no legal and practical justification for the court to inquire into the
irregularities committed by the election officials, as alleged in the petition, for it
would not give any benefit in favor of the protestants to the end that they will be
declared the duly elected mayor and councilors, respectively, of this City." 6
It was further stated in such order of dismissal: "There is no allegation in the
petition that the irregularities committed by the election officials have destroyed
the secrecy and integrity of the ballots cast. There is no allegation in the petition
that the non-compliance of the election officials of the provisions of the election
laws regarding the registration of voters were intentional on their part for the
purpose of committing frauds for the benefit of the protestees. There is no
allegation in the petition that because of the alleged irregularities committed by
the election officials in not following the provisions of the election laws regarding
the registration of voters and the distribution of the precincts, that all the votes
cast during said elections are illegal, nor is there an allegation in the protests that
the irregularities committed by the election officials would affect the election in
favor of the protestees." 7
A greater regard for the cause of accuracy ought to have admonished the lower
court from asserting in an uncompromising tone the absence of an allegation that
the protestants in both cases failed to allege that if the facts pleaded by them
were proved the result would not have been different. It is true the complaints
could have been more explicitly worded, but as they stood, the absence of such
a claim could not be so confidently asserted.
To repeat, both protests were dismissed. We do not discount a certain degree of
plausibility attaching to the line of reasoning thus pursued by the lower court. We
are not unaware of the undeniable fact that both petitions were not distinguished
by skill in their drafting or precision in their terminology. Nonetheless the
seriousness and gravity of the imputed failure to have the elections conducted
freely and honestly, with such irregularities alleged, give rise to doubts, rational
and honest, as to who were the duly elected officials. Such allegations, it is to be
stressed, would have to be accepted at their face value for the purpose of
determining whether there is a cause of action, a motion to dismiss amounting to
a hypothetical admission of facts thus pleaded. We cannot in law and in
conscience then sustain the order of dismissal.
Without the lower court having so intended, the dismissal would amount to
judicial abnegation of a sworn duty to inquire into and pass upon in an
appropriate proceeding allegations of misconduct and misdeeds of such
character. Accordingly, we reverse.
Abes v. Commission on Elections 8 points the way, but the lower court was
apparently impervious to its teaching. It may not be controlling, but it furnishes
more than a hint. It would seem, though, that for the court below, its message did
not ring out loud and clear.
The opinion in the Abes case, penned by Justice Sanchez, starts thus:
"Petitioner's cry for relief, so their petition avers, is planted upon the constitutional
mandate of free, orderly, and honest elections. Specifically, they list a number of
repressible acts." Among those mentioned were that blank official registration
forms were taken from the office of the Quezon City Comelec Register several
weeks before election day, November 14, 1967; that active campaigning within
the polling places by Nacionalista leaders or sympathizers of Nacionalista
candidates were allowed; that voters were permitted to vote on mere
mimeographed notices of certain Nacionalista candidates; that voters were
compelled to fill their official ballots on open tables, desks and in many precincts
outside the polling places; that thousands of voters sympathetic to the
Nacionalista candidates were allowed to vote beyond the hours for voting
allowed by law; that identification cards were delivered by partisan leaders of
respondents Nacionalista candidates, and those who did not signify their
preference for Nacionalista candidates were not given such cards; that the
precinct books of voters were not sealed within the deadline fixed by law; and
that the resulting effect of irregularities was to prevent full fifty-one per cent of the
registered voters from voting.
One of the issues raised on the above facts is whether or not the Commission on
Elections could annul the aforesaid election in Quezon City on the above
allegations of fraud, terrorism and other illegal practices committed before and
during the election. The petition did not prosper; it was dismissed. The remedy,
we held, lay not with the Commission on Elections but with the courts of justice in
an election protest.
In the language of Justice Sanchez: "The boundaries of the forbidden area into
which Comelec may not tread are also marked by jurisprudence. That Comelec is
not the proper forum to seek annulment of an election based on terrorism, frauds
and other illegal practices, is a principle emphasized in decisions of this Court."
For as announced in Nacionalista Party v. Commission on Elections, 9 assuming
that there be a failure to conduct an election in a free, orderly and honest
manner, "the duty to cure or remedy the resulting evil" did not rest with the
Commission on Elections but in "some other agencies of the Government." More
specifically, with reference to provincial and municipal officials, election contests
"are entrusted to the courts." Then came this express affirmation: "The power to
decide election contests necessarily includes the power to determine the validity
or nullity of the votes questioned by either of the contestants." .
As so emphatically observed in the Abes opinion, "there has been neither
deviation nor retreat from the foregoing pronouncement." After which came the
following: "The ratiocination advanced that there was failure of election due to
rampancy of terrorism, frauds, and other irregularities, before and during
elections, such that allegedly about 51% of the registered voters were not able to
vote, will not carry the day for petitioners. For, in the first place, this is grounded
upon bare assertions. Respondents contest the correctness thereof. And in the
answer of respondents Amoranto, Mathay and others, they aver that out of
162,457 registered voters in Quezon City, 100,382 voters actually cast their votes
about 62% of the registered voters. But above all, as pointed out in City Board
of Canvassers vs. Moscoso, [the] nullity of an election for municipal officials
should be determined in a petition contesting the election of municipal officers-
elect to be filed before the Court of First Instance."
Why an election protest is more fitly and appropriately the procedure for
determining whether irregularities or serious violations of the electoral law vitiated
the conduct of elections was clearly and succinctly explained in the Moscoso
decision above cited, the opinion coming from Justice Makalintal. 10 Thus: "The
question of whether or not there had been terrorism, vote-buying and other
irregularities in the 1959 elections in Tacloban City should be ventilated in a
regular election protest, pursuant to section 174 of the Election Code, and not in
a petition to enjoin the city board of canvassers from canvassing the election
returns and proclaiming the winning candidates for municipal offices."
It would follow then that if the grievance relied upon is the widespread
irregularities and the flagrant violations of the election law, the proper remedy is
the one availed of here, the protest.
That such should be the case should occasion no surprise. Time and time
again, 11 we have stressed the importance of preserving inviolate the right of
suffrage. If that right be disregarded or frittered away, then popular sovereignty
becomes a myth.
As Justice Laurel correctly pointed out: "As long as popular government is an end
to be achieved and safeguarded, suffrage, whatever may be the modality and
form devised, must continue to be the means by which the great reservoir of
power must be emptied into the receptacular agencies wrought by the people
through their Constitution in the interest of good government and the common
weal. Republicanism, in so far as it implies the adoption of a representative type
of government, necessarily points to the enfranchised citizen as a particle of
popular sovereignty and as the ultimate source of the established authority." 12
A republic then to be true to its name requires that the government rests on the
consent of the people, consent freely given, intelligently arrived at, honestly
recorded, and thereafter counted. Only thus can they be really looked upon as
the ultimate sources of established authority. It is their undeniable right to have
officials of their unfettered choice. The election law has no justification except as
a means for assuring a free, honest and orderly expression of their views. It is of
the essence that corruption and irregularities should not be permitted to taint the
electoral process.
It may not always be thus unfortunately. That should be the ideal however. If
there be a failure to observe the mandates of the Election Code, the aggrieved
parties should not be left remediless. Under the law as it stands, it is precisely an
election protest that fitly serves that purpose.lawphi1.nt
It was sought to be thus utilized in these two cases, perhaps in a rather awkward
and far from entirely satisfactory manner. Than itself is no reason for the courts to
slam the door against any opportunity for redress. Yet, that is what would happen
if the order of dismissal complained of were not set aside.
Hence the inevitability of its reversal. The scope of our decision must not be
misinterpreted however. All that it directs is that the protetees in both cases be
required to answer. Thereafter, if, as is not unlikely, there be a denial of the
serious imputations made as to the alleged irregularities, the lower court could
properly inquire into what actually transpired. After the facts are thus ascertained
in accordance with the accepted procedural rules, then the appropriate law could
be applied.
It must be clearly emphasized that we do not at this stage intimate any view as to
the merit, or lack of it, of either protest. That would be premature to say the least.
All we do is to set aside the order of dismissal.
WHEREFORE, the order of dismissal of March 23, 1968, is reversed and the two
cases remanded to the lower court for proceeding and trial in accordance with
this opinion and the law. Without costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro,
Capistrano and Teehankee, JJ., concur.
Separate Opinions
BARREDO, J., concurring:
I concur whole-heartedly in everything contained in the ably written opinion of our
distinguished colleague, Mr. Justice Fernando, including, of course, the
disposition he makes therein of these cases before Us. It may not be amiss,
nonetheless, to add a few words which I consider appropriate, in the light of my
experience in handling some election cases before my appointment as Solicitor
General.
The thing that has struck me most in these two cases, both denominated as
election protests, is that the prayers of the two petitions therein are identical in
that they do not ask for the seating of the petitioners, who call themselves
protestants, in the places of the protestees-respondents. What they ask in the
main is that "the proclamation of the protegees as duly elected (mayor and
councilors) be set aside and declared null and void". This sole principal prayer
was precisely what gave appellees in both cases cause to contend that (1) the
Court of First Instance of Lanao del Sur had no jurisdiction over the subject
matter, it being allegedly the Commission on Elections that has such jurisdiction,
and (2) neither of the petitions state any cause of action. Of course, the trial court
properly overruled the first ground. It is, however, best for all concerned that the
observations and arguments adduced by the trial judge in disposing of the
second ground are placed in proper light.
Ruling on the first ground above-stated, His Honor held thus:
Mere irregularities or misconduct on the part of election officers which do
not tend to affect the result of the elections are not of themselves either
ground for contest or for proper matters of inquiry... There is no allegation
in the protest that the alleged irregularities committed by the election
officers would tend to change the result of the election in favor of the
protestants and against the protestees. There is no allegation in the
petition that the 8,000 voters who failed to vote were all voters of
protestants and the 8,300 illegal voters who voted were for the protetees.
There is, therefore, no legal and practical justification for the court to
inquire into the irregularities committed by the election officials, as
alleged in the petition, for it would not give any benefit in favor of the
protestants to the end that they will be declared the duly elected mayor
and councilors, respectively, of this City.
The failure of election of officers to obey the mandatory
provisions of a statute relating to the conduct of the election and
designed to secure the secrecy and integrity of the ballot may so
taint the votes with irregularity as to cause the rejection of the
entire votes of the district. It should be remembered, however,
that all statutes tending to limit the citizen in the exercise of the
right of suffrage are to be construed liberally in his favor, and that
the courts are loath to disfranchise voters who are wholly
innocent of wrongdoing. As a consequence, it is a firmly
established general rule that voters will not be rejected, even
though election officers fail to comply with the directory
provisions of a statute, if there is no fraud or other irregularity
and failure to comply is unintentional; nor is it material in this
connection that the failure of the election officers to perform their
duty subjects them to penalties. Likewise, the courts will not
permit the will of the voters to be defeated by fraud on the part of
election officers if it is possible to avoid such a result. In short, a
fair election and an honest return should be considered as
paramount in importance to minor requirements which prescribe
the formal steps to reach that end, and the law should be so
construed as to remedy the evils against which its provisions are
directed and at the same time not to disfranchise voters further
than is necessary to attain that object. In case of a violation of
the law on the part of an election officer, punishment may be
provided therefor, and in this way the law can be rendered
effectual without going to the extent of depriving a voter of his
right to have his vote counted in consequence of such violation.
It may, therefore, be stated as a general rule that if ballots are
cast by voters who are, at the time, qualified to cast them and
who have done all on their part that the law requires of voters to
make their voting effective, an erroneous or even unlawful
handling of the ballots by the election officers, charged with such
responsibility will not be held to disfranchise such voters by
 throwing out their votes on account of erroneous procedure had
sorely by the election officers, provided the votes are legal votes
in their inception and are still capable of being given proper
effect as such. Nor will an election be set aside because of
regularities on the part of the election officials unless it appears
that such irregularities affect the results. (18 Am. Jur. Sec. 225,
pp. 331-332, cited on pp. 621-622, Revised Election Code by
Francisco).
There is no allegation in the petition that the irregularities committed by
the election officials have destroyed the secrecy and integrity of the
ballots cast. There is no allegation in the petition that the non-compliance
of the election officials of the provisions of the election laws regarding the
registration of voters were intentional on their part for the purpose of
committing frauds for the benefit of the protestees. There is no allegation
in the petition that because of the alleged irregularities committed by the
election officials in not following the provisions of the election laws
regarding the registration of voters and the distribution of the precincts,
that all the votes cast during said elections are illegal, nor is there an
allegation in the protests that the irregularities committed by the election
officials would affect the election in favor of protestees.
A misconduct or irregularity committed by an election official is
not a sufficient ground to annul the votes cast in the precincts
where the person elected neither knew of nor participated in the
misconduct and it is not shown that any elector who voted or the
persons elected either participated in such misconduct. (18 Am.
Jur. Sec. 228, p. 333, cited on page 622, Revised Election Code
by Francisco).
While this ruling is, on the whole, correct, His Honor failed to emphasize that the
cases before him were precisely ones for the annulment and setting aside of the
election for Mayor and Councilors in the City of Iligan and that, therefore, the only
question that should be resolved is whether or not the facts alleged in the
petitions in question constitute sufficient grounds for such relief. Instead, the trial
court made as may be seen above, a long discourse on the thesis that "the
purpose of an election contest is to correct the canvass," and that "the general
rule is that whatever may be the cause of an election contest, the true gravamen
of the case is to determine who receives the highest number of votes, etc." (pp.
5-8, Order in question) and then held that there was no allegation in both
petitions that "would give any benefit in favor of the protestants to the end that
they will be declared the duly elected mayor and councilors, respectively, of this
City" ergo, the said petitions do not state any cause of action. More specifically,
the trial court looked in vain for allegations to the effect that "the alleged
irregularities committed by the elections in favor of the protestants and against
the protestees." (p. 7, id.) For example, His Honor reasoned out that "there is no
allegation ... that the 8,000 voters who failed to vote were all voters of protestants
and the 8,300 illegal voters who voted were for the protetees." (id.).
I am afraid that such discourse, if quite impressive as an exposition of
considerable learning in election law matters, is rather irrelevant. I believe that
what should be emphasized in these cases is that ruling in Our decision to the
effect that in an election protest, (otherwise entitled at times, petition or complaint
or motion of protest) it is not necessary to allege that the true results of the
election in question would be in favor of protestant and against protestee on the
basis of the legal votes, or that the proclaimed result would be changed if the
facts alleged are proven, when the sole ground of protest and the only purpose of
the protestant is to have the whole election in a precinct or municipality annulled
and set aside. Indeed, as pointed out in the brief of appellants:
In the case G.R. No. L-29333, the prayer is for the annulment of the
proclamation of protestee-appellee Camilo P. Cabili and of the local
elections held in Iligan City on November 14, 1967, while in case G.R.
No. L-29334, the prayer is for the annulment of the proclamation of
protestee-appellees Felix Z. Actub et al. and of the local elections held in
Iligan City on November 14, 1967.
Section 177 of the Revised Election Code provides:
SEC. 177. Decision of the Contest. The court shall decide the
protest ... and shall declare who among the parties has been elected, or
in the proper case, that none of them has been legally elected....
Under the above-quoted provision of law, the courts are authorized to
declare that none of the candidates has been legally elected, which in
effect would mean that the elections are annulled.
If it were not the intention of the lawmaker not to authorize the courts to
annul an election, such authority would not have been provided in
Section 177 of the Revised Election Code quoted above.
Francisco, in his book How to Try Election Cases, 1952 Edition, p. 82,
citing as authorities the decisions of this Honorable Court in Bustos vs.
Moir and Fajardo 35 Phil. 16; and Manalo vs. Sevilla, 24 Phil. 609,
states:
The court is authorized, in a proper case, not only to recount the
ballots and reject those which it considers illegal and accept
those which it considers valid but it is also authorized, in a proper
case, to annul the election completely.
It is therefore clear that the trial court erred in holding that the
purpose of the protestants in filing these protest is not in accord
with the purpose of the Revised Election Code in allowing a
defeated candidate to file an election protest.
In other words, I like to make it very clear that an election protest may be
filed not only for the purpose of having the protestant declared elected,
but even for the purpose alone of having the election annulled. Otherwise
stated, protestants may come to court, not necessarily to win an election,
but even if solely to have the court declare that no one has won because
the election is void and that it is obvious and pure common sense that in
the latter case, the protestant does not have to allege the probability of
his being the real victor, for in such a case, his prayer precisely is that
it be declared, using the language of the law, "that none of them has
been legally elected." Surely, the following ruling of the trial court:
 An election contest is a summary proceeding the object of which
is to expedite the settlement of the controversy between
candidates as to who received the majority of the legal ballots
(Gardiner vs. Romulo, 26 Phil. 522, 524). The purpose of an
election contest is to correct the canvass of which the
proclamation is a public manifestation and the power granted by
law to the court must agree with and be adequate to such an
object. Hence, the court can directly declare which candidate is
to be elected leaving the canvass made by the Board null and
void, and the candidate so declared elected may assume
position of the office (Aquino vs. Calebia & Sahagun, 55 Phil.
984). It being the policy of the law to give effect to elections, the
general rule is that whatever may be the cause of an election
contest, the true gravamen of the case is to determine who
receives the highest number of votes (20 C.J. 217). In an
election case, the court has an imperative duty to ascertain by all
means within its command who is the real candidate elected by
the electorate. (Ibasco vs. Ilao, G.R. No. L-17512, December 29,
1960). Hence, only candidates have the right to file an election
protest. (Gil Hermanos vs. Hord, 10 Phil. 217).
From the foregoing authorities, it could be concluded that the
purpose of the election law to allow a candidate to file an election
protest is for the court to determine whether the protestant or the
protestee is the winner of the election under protest. In the
present case, the object of the protestants in filing their protests
based on the prayer of their petitions is not to declare them the
duly elected mayor and councilors, respectively, of this City but
merely to declare null and void the proclamation and election of
the protestees as well as the elections held in Iligan City of
November 14, 1967. The purpose, therefore of the protestants in
filing these protests is not in accord with the purpose of the
Revised Election Code in allowing a defeated candidate to file an
election protest.
must be emphatically denounced as a misreading by His Honor of the real import
of the authorities cited by Him. Such proposition represents the most narrow
concept of the judicial remedies in matters of election. No single precedent in
extant jurisprudence whether here or in any other country can be found to
support it. I am equally confident that no thesis in any of the existing legal
publications can be referred to as upholding such an illogical idea. To sanction
such a ruling is to kill almost entirely all hopes for a clean, orderly and honest
suffrage in this country, which the Commission on Elections alone may not be
able to achieve in all possible cases. Indeed, as pointed out by appellants the
trial court would have been right if it had only adhered to the decisions already
rendered by this Court on the subject, cited by said appellants in their brief.
The real issue then in these cases is whether or not the facts alleged in the
respective petitions of appellants constitute sufficient ground or grounds for
annulment of the election of Mayor and Councilors in Iligan City, held in
November, 1967. On this score, it has to be admitted that, indeed, the petitions of
appellants which appear to have been prepared by a single counsel are not as
accurately and precisely worded as to fit exactly into the pattern that may
perhaps be most ideal in cases of this nature, but I cannot go along with His
Honor's ruling that the allegations in said petitions are legally inadequate to serve
as a basis for the relief of annulment of the election therein prayed for. His Honor
seemed to be more concerned with what he considered the need for direct
averments that the irregularities and violations of the election law alleged by
appellants resulted in the destruction of the "secrecy and integrity of the ballot
cast," that "all the votes cast in said elections are illegal" and that "the
irregularities committed by the election officials would affect the election in favor
of the protestees." (p. 8, id.) I feel that His Honor was asking too much and
unnecessarily because, as they appear to me, these allegations as well as the
others His Honor considered as indispensably required, are more in the nature of
legal conclusions, not supposed to be averred in the pleadings, rather than
statements of ultimate facts. The truth of the matter is that, viewed as a whole,
the petitions in question sufficiently lead to the conclusion that what appellants
are complaining about is that the elections held in Iligan City in November, 1967
were characterized by general and specific circumstances, that leave rational
doubt as to whether or not the true will of the people of said City could be
reflected in the proclaimed results. In the more polished and inimitable language
of Mr. Justice Fernando, "... the seriousness and gravity of the imputed failure to
have the elections conducted freely and honestly, with such irregularities alleged,
give rise to doubts, rational and honest, as to who were the duly elected officials".
It is my considered opinion that while it is truly desirable that election protests
should be discouraged where they have hardly any basis in fact or in law, the
earlier to free from doubt the title to their respective offices of those chosen to
direct the affairs of our government, whether national or local, thereby giving
them the peace of mind and freedom of action gravely needed in the formulation
of policies and the implementation thereof, courts should also be careful in
seeing to it that their doors are not untimely shut to complaints regarding the
commission of electoral frauds, irregularities and illegalities, the most despicable
banes of popular suffrage, which though unhappily worded are fairly indicative of
a situation wherein the will of the electorate has not been freely and clearly
expressed. To my mind, the rule foIlowed in an unbroken line of decisions of this
Court, to the effect that the commission of irregularities by election officials, no
matter how serious, and the actual discovery of frauds and violations of law by
either candidates or voters, are not in themselves sufficient to cause the
annulment of an election unless so expressly provided by law, or that the frauds,
illegalities and irregularities are so rampant and diffusive as to place the result of
such election in grave doubt, is one that governs more the rendition of judgments
in election cases and the evaluation of the circumstances surrounding the
elections in question, as portrayed in the evidence already presented before the
court, rather than as a strict criterion for determining whether a complaint or
petition or motion of protest sufficiently states a cause of action for annulment.
Respecting contrary opinion others may entertain on the matter, I regard it as a
sound rule that pleadings in election cases, at least, should not be subjected to
such minute examination as should be done to facts duly established after proper
hearing, if only because facts are unerring manifestations of the truth, while
allegations in pleadings often suffer from the common flaws in the means of
human expressions as well as from the usual imperfection of human language. If
words are but children of thoughts, parents and offsprings not always, as among
men and animals, look exactly alike. Pleadings in such cases must, therefore, be
read with more liberality so as to make it difficult, if not impossible for grievances
against the suppression in one form or another of the expression of the popular
will, well-grounded in fact, may not be thrown out merely because of lack of skill
and precision in the formulation of the corresponding protests. More importance
should be given to the substantial matters sufficiently appearing in such
pleadings as intended to be brought to the court for a remedy, than to the form, at
times, ambiguous and often ungrammatically phrased, in which they are
expressed. In any event, in case of doubt as to which should be done, such
doubt must be resolved in giving due course to the protest, unless it is manifestly
evident that the same has been filed for other than legitimate purposes.
As already indicated, my vote is for the reversal of the appealed order sustaining
the motion to dismiss filed by appellees in the court below, because I agree with
the decision herein of Mr. Justice Fernando that there are enough indications,
within the four corners of the questioned petitions, of irregularities and illegalities
which, if proven, may result in the annulment of the elections prayed for by
appellants.
G.R. No. 148334 January 21, 2004
ARTURO M. TOLENTINO and ARTURO C. MOJICA, Petitioners,
vs.
COMMISSION ON ELECTIONS, SENATOR RALPH G. RECTO and SENATOR
GREGORIO B. HONASAN, Respondents.
Election Law; Special Elections; Senate Electoral Tribunal; Powers; The Senate
Electoral Tribunal is the sole judge of all contests relating to the qualifications of
the members of the Senate.A quo warranto proceeding is, among others, one
to determine the right of a public officer in the exercise of his office and to oust
him from its enjoyment if his claim is not well-founded. Under Section 17, Article
VI of the Constitution, the Senate Electoral Tribunal is the sole judge of all
contests relating to the qualifications of the members of the Senate.
Same; Same; Parties; Locus Standi; The requirement of standing, which
necessarily sharpens the presentation of issues, relates to the constitutional
mandate that this Court settle only actual cases or controversies.Legal
standing or locus standi refers to a personal and substantial interest in a case
such that the party has sustained or will sustain direct injury because of the
challenged governmental act. The requirement of standing, which necessarily
sharpens the presentation of issues, relates to the constitutional mandate that
this Court settle only actual cases or controversies. Thus, generally, a party will
be allowed to litigate only when (1) he can show that he has personally suffered
some actual or threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged action; and (3) the
injury is likely to be redressed by a favorable action.
Same; Same; Same; Same; In not a few cases, the court has adopted a liberal
attitude on the locus standi of a petitioner where the petitioner is able to craft an
issue of transcendental significance to the people.This Court has the discretion
to take cognizance of a suit which does not satisfy the requirement of legal
standing when paramount interest is involved. In not a few cases, the court has
adopted a liberal attitude on the locus standi of a petitioner where the petitioner
is able to craft an issue of transcendental significance to the people. Thus, when
the issues raised are of paramount importance to the public, the Court may brush
aside technicalities of procedure.
Same; Same; Commission on Elections; Section 2 of R.A. 6645 provides for the
procedure in calling a special election.In case a vacancy arises in Congress at
least one year before the expiration of the term, Section 2 of R.A. No. 6645, as
amended, requires COMELEC: (1) to call a special election by fixing the date of
the special election, which shall not be earlier than sixty (60) days nor later than
ninety (90) after the occurrence of the vacancy but in case of a vacancy in the
Senate, the special election shall be held simultaneously with the next
succeeding regular election; and (2) to give notice to the voters of, among other
things, the office or offices to be voted for.
Same; Same; Same; In a special election to fill a vacancy, the rule is that a
statute that expressly provides that an election to fill a vacancy shall be held at
the next general elections fixes the date at which the special election is to be
held and operates as the call for that election.The calling of an election, that is,
the giving notice of the time and place of its occurrence, whether made by the
legislature directly or by the body with the duty to give such call, is indispensable
to the elections validity. In a general election, where the law fixes the date of the
election, the election is valid without any call by the body charged to administer
the election. In a special election to fill a vacancy, the rule is that a statute that
expressly provides that an election to fill a vacancy shall be held at the next
general elections fixes the date at which the special election is to be held and
operates as the call for that election. Consequently, an election held at the time
thus prescribed is not invalidated by the fact that the body charged by law with
the duty of calling the election failed to do so. This is because the right and duty
to hold the election emanate from the statute and not from any call for the
election by some authority and the law thus charges voters with knowledge of the
time and place of the election. Conversely, where the law does not fix the time
and place for holding a special election but empowers some authority to fix the
time and place after the happening of a condition precedent, the statutory
provision on the giving of notice is considered mandatory, and failure to do so will
render the election a nullity.
Same; Same; Same; Lack of notice to a sufficient number of voters of the special
election renders the same void.The test in determining the validity of a special
election in relation to the failure to give notice of the special election is whether
the want of notice has resulted in misleading a sufficient number of voters as
would change the result of the special election. If the lack of official notice misled
a substantial number of voters who wrongly believed that there was no special
election to fill a vacancy, a choice by a small percentage of voters would be void.
The required notice to the voters in the 14 May 2001 special senatorial election
covers two matters. First, that COMELEC will hold a special election to fill a
vacant single three-year term Senate seat simultaneously with the regular
elections scheduled on the same date. Second, that COMELEC will proclaim as
winner the senatorial candidate receiving the 13th highest number of votes in the
special election.
Same; Same; Same; The consistent rule has been to respect the electorates will
and let the results of the election stand, despite irregularities that may have
attended the conduct of the elections.Indeed, this Court is loathe to annul
elections and will only do so when it is impossible to distinguish what votes are
lawful and what are unlawful, or to arrive at any certain result whatever, or that
the great body of the voters have been prevented by violence, intimidation, and
threats from exercising their franchise. Otherwise, the consistent rule has been
to respect the electorates will and let the results of the election stand, despite
irregularities that may have attended the conduct of the elections. This is but to
acknowledge the purpose and role of elections in a democratic society such as
ours, which is: to give the voters a direct participation in the affairs of their
government, either in determining who shall be their public officials or in deciding
some question of public interest; and for that purpose all of the legal voters
should be permitted, unhampered and unmolested, to cast their ballot. When that
is done and no frauds have been committed, the ballots should be counted and
the election should not be declared null. Innocent voters should not be deprived
of their participation in the affairs of their government for mere irregularities on
the part of the election officers, for which they are in no way responsible. A
different rule would make the manner and method of performing a public duty of
greater importance than the duty itself.
Same; Same; Same; The COMELEC should be allowed considerable latitude in
devising means and methods that will insure the accomplishment of the great
objective for which it was createdfree, orderly and honest elections.The
Commission on Elections is a constitutional body. It is intended to play a distinct
and important part in our scheme of government. In the discharge of its functions,
it should not be hampered with restrictions that would be fully warranted in the
case of a less responsible organization. The Commission may err, so may this
Court also. It should be allowed considerable latitude in devising means and
methods that will insure the accomplishment of the great objective for which it
was createdfree, orderly and honest elections. We may not agree fully with its
choice of means, but unless these are clearly illegal or constitute gross abuse of
discretion, this court should not interfere.
Puno, J., Dissenting Opinion:
Constitutional Law; Sovereignty; Modes; An outstanding feature of the 1987
Constitution is the expansion of the democratic space giving the people greater
power to exercise their sovereignty.An outstanding feature of the 1987
Constitution is the expansion of the democratic space giving the people greater
power to exercise their sovereignty. Thus, under the 1987 Constitution, the
people can directly exercise their sovereign authority through the following
modes, namely: (1) elections; (2) plebiscite; (3) initiative; (4) recall; and (5)
referendum. Through elections, the people choose the representatives to whom
they will entrust the exercise of powers of government. In a plebiscite, the people
ratify any amendment to or revision of the Constitution and may introduce
amendments to the constitution. Indeed, the Constitution mandates Congress to
provide for a system of initiative and referendum, and the exceptions therefrom,
whereby the people can directly propose and enact laws or approve or reject any
law or part thereof passed by the Congress or local legislative body. . . It also
directs Congress to enact a local government code which shall provide for
effective mechanisms of recall, initiative, and referendum. Pursuant to this
mandate, Congress enacted the Local Government Code of 1991 which defines
local initiative as the legal process whereby the registered voters of a local
government unit may directly propose, enact, or amend any ordinance through
an election called for the purpose. Recall is a method of removing a local official
from office before the expiration of his term because of loss of confidence. In a
referendum, the people can approve or reject a law or an issue of national
importance. Section 126 of the Local Government Code of 1991 defines a local
referendum as the legal process whereby the registered voters of the local
government units may approve, amend or reject any ordinance enacted by the
sanggunian.
Same; Same; Right to Suffrage; The existence of the right of suffrage is a
threshold for the preservation and enjoyment of all other rights.The right to
vote or of suffrage is an important political right appertaining to citizenship. Each
individual qualified to vote is a particle of popular sovereignty. In People v.
Corral, we held that (t)he modern conception of suffrage is that voting is a
function of government. The right to vote is not a natural right but it is a right
created by law. Suffrage is a privilege granted by the State to such persons as
are most likely to exercise it for the public good. The existence of the right of
suffrage is a threshold for the preservation and enjoyment of all other rights that it
ought to be considered as one of the most sacred parts of the constitution. In
Geronimo v. Ramos, et al., we held that the right is among the most important
and sacred of the freedoms inherent in a democratic society and one which must
be most vigilantly guarded if a people desires to maintain through self-
government for themselves and their posterity a genuinely functioning democracy
in which the individual may, in accordance with law, have a voice in the form of
his government and in the choice of the people who will run that government for
him. The U.S. Supreme Court recognized in Yick Wo v. Hopkins that voting is a
fundamental political right, because [it is] preservative of all rights. In Wesberry
v. Sanders, the U.S. Supreme Court held that no right is more precious in a free
country than that of having a voice in the election of those who make the laws,
under which, as good citizens, we must live. Other rights, even the most basic,
are illusory if the right to vote is undermined. Voting makes government more
responsive to community and individual needs and desires. Especially for those
who feel disempowered and marginalized or that government is not responsive to
them, meaningful access to the ballot box can be one of the few counterbalances
in their arsenal.
Same; Same; Same; The purpose of election laws is to safeguard the will of the
people, the purity of elections being one of the most important and fundamental
requisites of popular government.Thus, elections are substantially regulated for
them to be fair and honest, for order rather than chaos to accompany the
democratic processes. This Court has consistently ruled from as early as the oft-
cited 1914 case of Gardiner v. Romulo that the purpose of election laws is to
safeguard the will of the people, the purity of elections being one of the most
important and fundamental requisites of popular government. We have
consistently made it clear that we frown upon any interpretation of the law or the
rules that would hinder in any way not only the free and intelligent casting of the
votes in an election but also the correct ascertainment of the results. To preserve
the purity of elections, comprehensive and sometimes complex election codes
are enacted, each provision of whichwhether it governs the registration and
qualifications of voters, the selection and eligibility of candidates, or the voting
process itselfinevitably affects the individuals right to vote. As the right to vote
in a free and unimpaired manner is preservative of other basic civil and political
rights, Chief Justice Warren, speaking for the U.S. Supreme Court in Reynolds v.
Sims cautioned that any alleged infringement of the right of citizens to vote must
be carefully and meticulously scrutinized. It was to promote free, orderly and
honest elections and to preserve the sanctity of the right to vote that the
Commission on Elections was created. The 1987 Constitution mandates the
COMELEC to ensure free, orderly, honest, peaceful, and credible elections.
Same; Right to Information; As worded in the 1973 and 1987 Constitution, the
right to information is self-executory.As worded in the 1973 and 1987
Constitution, the right to information is self-executory. It is a public right where the
real parties in interest are the people. Thus, every citizen has standing to
challenge any violation of the right and may seek its enforcement. The right to
information, free speech and press and of assembly and petition and association
which are all enshrined in the Bill of Rights are cognate rights for they all
commonly rest on the premise that ultimately it is an informed and critical public
opinion which alone can protect and uphold the values of democratic
government.
Same; Same; An informed citizenry with access to the diverse currents in
political, moral and artistic thought and data relative to them, and the free
exchange of ideas and discussion of issues thereon is vital to the democratic
government envisioned under our Constitution.An informed citizenry with
access to the diverse currents in political, moral and artistic thought and data
relative to them, and the free exchange of ideas and discussion of issues thereon
is vital to the democratic government envisioned under our Constitution. The
cornerstone of this republican system of government is delegation of power by
the people to the State. In this system, governmental agencies and institutions
operate within the limits of the authority conferred by the people. Denied access
to information on the inner workings of government, the citizenry can become
prey to the whims and caprices of those to whom the power had been
delegated . . . x x x x x x x x x . . .The right of access to information ensures that
these freedoms are not rendered nugatory by the governments monopolizing
pertinent information. For an essential element of these freedoms is to keep open
a continuing dialogue or process of communication between the government and
the people. It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive and be
responsive to the peoples will. Yet, this open dialogue can be effective only to
the extent that the citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in a discussion are aware of the issues
and have access to information relating thereto can such bear fruit. The right to
information is an essential premise of a meaningful right to speech and
expression. But this is not to say that the right to information is merely an adjunct
of and therefore restricted in application by the exercise of the freedoms of
speech and of the press. Far from it. The right to information goes hand-in-hand
with the constitutional policies of full public disclosure (footnote omitted) and
honesty in the public service (footnote omitted). It is meant to enhance the
widening role of the citizenry in governmental decision-making as well as in
checking abuse in government.
Same; Same; An informed citizenry is essential to the existence and proper
functioning of any democracy.These twin provisions (on right to information
under Section 7, Article III and the policy of full public disclosure under Section
28, Article II) of the Constitution seek to promote transparency in policy-making
and in the operations of the government, as well as provide the people sufficient
information to exercise effectively other constitutional rights. These twin
provisions are essential to the exercise of freedom of expression. If the
government does not disclose its official acts, transactions and decisions to
citizens, whatever citizens may say, even if expressed without any restraint, will
be speculative and amount to nothing. These twin provisions are also essential to
hold public officials at all times x x x accountable to the people, (footnote
omitted) for unless citizens have the proper information, they cannot hold public
officials accountable for anything. Armed with the right information, citizens can
participate in public discussions leading to the formulation of government policies
and their effective implementation. An informed citizenry is essential to the
existence and proper functioning of any democracy.
Same; Same; Notice to the electors that a vacancy exists and that an election is
to be held to fill it for the unexpired term, is essential to give validity to the
meeting of an electoral body to discharge that particular duty, and is also an
essential and characteristic element of a popular election.Although there is not
unanimity of judicial opinion as to the requirement of official notice, if the vacancy
is to be filled at the time of a general election, yet it appears to be almost
universally held that if the great body of the electors are misled by the want of
such notice and are instead led to believe that no such election is in fact to be
held, an attempted choice by a small percentage of the voters is void. Wilson v.
Brown, 109 Ky 229, 139 Ky 397, 58 SW 595; Wooton v. Wheeler, 149 Ky 62, 147
SW 914; Secord v. Foutch, 44 Mich 89, 6 NW 110; Bolton v. Good, 41 NJL 296
(other citations omitted). Notice to the electors that a vacancy exists and that an
election is to be held to fill it for the unexpired term, is essential to give validity to
the meeting of an electoral body to discharge that particular duty, and is also an
essential and characteristic element of a popular election. Public policy requires
that it should be given in such form as to reach the body of the electorate. Here
there had been no nominations to fill the vacancy, either by the holding of a
special primary election, or by nomination by county political conventions or party
committees. The designation of the office to be filled was not upon the official
ballot. As before noted, except for the vacancy, it would have no place there, as
the term of office of the incumbent, if living, would not expire until January 1,
1947.
DECISION
CARPIO, J.:
The Case
This is a petition for prohibition to set aside Resolution No. NBC 01-005 dated 5
June 2001 ("Resolution No. 01-005") and Resolution No. NBC 01-006 dated 20
July 2001 ("Resolution No. 01-006") of respondent Commission on Elections
("COMELEC"). Resolution No. 01-005 proclaimed the 13 candidates elected as
Senators in the 14 May 2001 elections while Resolution No. 01-006 declared
"official and final" the ranking of the 13 Senators proclaimed in Resolution No.
01-005.
The Facts
Shortly after her succession to the Presidency in January 2001, President Gloria
Macapagal-Arroyo nominated then Senator Teofisto T. Guingona, Jr. ("Senator
Guingona") as Vice-President. Congress confirmed the nomination of Senator
Guingona who took his oath as Vice-President on 9 February 2001.
Following Senator Guingonas confirmation, the Senate on 8 February 2001
passed Resolution No. 84 ("Resolution No. 84") certifying to the existence of a
vacancy in the Senate. Resolution No. 84 called on COMELEC to fill the vacancy
through a special election to be held simultaneously with the regular elections on
14 May 2001. Twelve Senators, with a 6-year term each, were due to be elected
in that election.1 Resolution No. 84 further provided that the "Senatorial candidate
garnering the 13th highest number of votes shall serve only for the unexpired
term of former Senator Teofisto T. Guingona, Jr.," which ends on 30 June 2004. 2
On 5 June 2001, after COMELEC had canvassed the election results from all the
provinces but one (Lanao del Norte), COMELEC issued Resolution No. 01-005
provisionally proclaiming 13 candidates as the elected Senators. Resolution No.
01-005 also provided that "the first twelve (12) Senators shall serve for a term of
six (6) years and the thirteenth (13th) Senator shall serve the unexpired term of
three (3) years of Senator Teofisto T. Guingona, Jr. who was appointed Vice-
President."3 Respondents Ralph Recto ("Recto") and Gregorio Honasan
("Honasan") ranked 12th and 13th, respectively, in Resolution No. 01-005.
On 20 June 2001, petitioners Arturo Tolentino and Arturo Mojica ("petitioners"), as
voters and taxpayers, filed the instant petition for prohibition, impleading only
COMELEC as respondent. Petitioners sought to enjoin COMELEC from
proclaiming with finality the candidate for Senator receiving the 13th highest
number of votes as the winner in the special election for a single three-year term
seat. Accordingly, petitioners prayed for the nullification of Resolution No. 01-005
in so far as it makes a proclamation to such effect.
Petitioners contend that COMELEC issued Resolution No. 01-005 without
jurisdiction because: (1) it failed to notify the electorate of the position to be filled
in the special election as required under Section 2 of Republic Act No. 6645
("R.A. No. 6645");4 (2) it failed to require senatorial candidates to indicate in their
certificates of candidacy whether they seek election under the special or regular
elections as allegedly required under Section 73 of Batas Pambansa Blg.
881;5 and, consequently, (3) it failed to specify in the Voters Information Sheet the
candidates seeking election under the special or regular senatorial elections as
purportedly required under Section 4, paragraph 4 of Republic Act No. 6646
("R.A. No. 6646").6 Petitioners add that because of these omissions, COMELEC
canvassed all the votes cast for the senatorial candidates in the 14 May 2001
elections without distinction such that "there were no two separate Senate
elections held simultaneously but just a single election for thirteen seats,
irrespective of term."7
Stated otherwise, petitioners claim that if held simultaneously, a special and a
regular election must be distinguished in the documentation as well as in the
canvassing of their results. To support their claim, petitioners cite the special
elections simultaneously held with the regular elections of 13 November 1951
and 8 November 1955 to fill the seats vacated by Senators Fernando Lopez and
Carlos P. Garcia, respectively, who became Vice-Presidents during their tenures
in the Senate.8 Petitioners point out that in those elections, COMELEC separately
canvassed the votes cast for the senatorial candidates running under the regular
elections from the votes cast for the candidates running under the special
elections. COMELEC also separately proclaimed the winners in each of those
elections.9
Petitioners sought the issuance of a temporary restraining order during the
pendency of their petition.
Without issuing any restraining order, we required COMELEC to Comment on the
petition.
On 20 July 2001, after COMELEC had canvassed the results from all the
provinces, it issued Resolution No. 01-006 declaring "official and final" the
ranking of the 13 Senators proclaimed in Resolution No. 01-005. The 13
Senators took their oaths of office on 23 July 2001.
In view of the issuance of Resolution No. 01-006, the Court required petitioners
to file an amended petition impleading Recto and Honasan as additional
respondents. Petitioners accordingly filed an amended petition in which they
reiterated the contentions raised in their original petition and, in addition, sought
the nullification of Resolution No. 01-006.
In their Comments, COMELEC, Honasan, and Recto all claim that a special
election to fill the seat vacated by Senator Guingona was validly held on 14 May
2001. COMELEC and Honasan further raise preliminary issues on the mootness
of the petition and on petitioners standing to litigate. Honasan also claims that
the petition, which seeks the nullity of his proclamation as Senator, is actually a
quo warranto petition and the Court should dismiss the same for lack of
jurisdiction. For his part, Recto, as the 12th ranking Senator, contends he is not a
proper party to this case because the petition only involves the validity of the
proclamation of the 13th placer in the 14 May 2001 senatorial elections.
The Issues
The following are the issues presented for resolution:
(1) Procedurally
(a) whether the petition is in fact a petition for quo warranto over
which the Senate Electoral Tribunal is the sole judge;
(b) whether the petition is moot; and
(c) whether petitioners have standing to litigate.
(2) On the merits, whether a special election to fill a vacant three-year
term Senate seat was validly held on 14 May 2001.
The Ruling of the Court
The petition has no merit.
On the Preliminary Matters
The Nature of the Petition and the Courts Jurisdiction
A quo warranto proceeding is, among others, one to determine the right of a
public officer in the exercise of his office and to oust him from its enjoyment if his
claim is not well-founded.10 Under Section 17, Article VI of the Constitution, the
Senate Electoral Tribunal is the sole judge of all contests relating to the
qualifications of the members of the Senate.
A perusal of the allegations contained in the instant petition shows, however, that
what petitioners are questioning is the validity of the special election on 14 May
2001 in which Honasan was elected. Petitioners various prayers are, namely: (1)
a "declaration" that no special election was held simultaneously with the general
elections on 14 May 2001; (2) to enjoin COMELEC from declaring anyone as
having won in the special election; and (3) to annul Resolution Nos. 01-005 and
01-006 in so far as these Resolutions proclaim Honasan as the winner in the
special election. Petitioners anchor their prayers on COMELECs alleged failure
to comply with certain requirements pertaining to the conduct of that special
election. Clearly then, the petition does not seek to determine Honasans right in
the exercise of his office as Senator. Petitioners prayer for the annulment of
Honasans proclamation and, ultimately, election is merely incidental to
petitioners cause of action. Consequently, the Court can properly exercise
jurisdiction over the instant petition.
On the Mootness of the Petition
COMELEC contends that its proclamation on 5 June 2001 of the 13 Senators
and its subsequent confirmation on 20 July 2001 of the ranking of the 13
Senators render the instant petition to set aside Resolutions Nos. 01-005 and 01-
006 moot and academic.
Admittedly, the office of the writ of prohibition is to command a tribunal or board
to desist from committing an act threatened to be done without jurisdiction or with
grave abuse of discretion amounting to lack or excess of
jurisdiction.11 Consequently, the writ will not lie to enjoin acts already
done.12 However, as an exception to the rule on mootness, courts will decide a
question otherwise moot if it is capable of repetition yet evading review.13Thus, in
Alunan III v. Mirasol,14 we took cognizance of a petition to set aside an order
canceling the general elections for the Sangguniang Kabataan ("SK") on 4
December 1992 despite that at the time the petition was filed, the SK election
had already taken place. We noted in Alunan that since the question of the
validity of the order sought to be annulled "is likely to arise in every SK elections
and yet the question may not be decided before the date of such elections," the
mootness of the petition is no bar to its resolution. This observation squarely
applies to the instant case. The question of the validity of a special election to fill
a vacancy in the Senate in relation to COMELECs failure to comply with
requirements on the conduct of such special election is likely to arise in every
such election. Such question, however, may not be decided before the date of
the election.
On Petitioners Standing
Honasan questions petitioners standing to bring the instant petition as taxpayers
and voters because petitioners do not claim that COMELEC illegally disbursed
public funds. Neither do petitioners claim that they sustained personal injury
because of the issuance of Resolution Nos. 01-005 and 01-006.
"Legal standing" or locus standi refers to a personal and substantial interest in a
case such that the party has sustained or will sustain direct injury because of the
challenged governmental act.15 The requirement of standing, which necessarily
"sharpens the presentation of issues,"16 relates to the constitutional mandate that
this Court settle only actual cases or controversies. 17 Thus, generally, a party will
be allowed to litigate only when (1) he can show that he has personally suffered
some actual or threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged action; and (3) the
injury is likely to be redressed by a favorable action. 18
Applied strictly, the doctrine of standing to litigate will indeed bar the instant
petition. In questioning, in their capacity as voters, the validity of the special
election on 14 May 2001, petitioners assert a harm classified as a "generalized
grievance." This generalized grievance is shared in substantially equal measure
by a large class of voters, if not all the voters, who voted in that election. 19 Neither
have petitioners alleged, in their capacity as taxpayers, that the Court should give
due course to the petition because in the special election held on 14 May 2001
"tax money [was] x x x extracted and spent in violation of specific constitutional
protections against abuses of legislative power or that there [was] misapplication
of such funds by COMELEC or that public money [was] deflected to any improper
purpose."20
On the other hand, we have relaxed the requirement on standing and exercised
our discretion to give due course to voters suits involving the right of
suffrage.21 Also, in the recent case of Integrated Bar of the Philippines v.
Zamora,22 we gave the same liberal treatment to a petition filed by the Integrated
Bar of the Philippines ("IBP"). The IBP questioned the validity of a Presidential
directive deploying elements of the Philippine National Police and the Philippine
Marines in Metro Manila to conduct patrols even though the IBP presented "too
general an interest." We held:
[T]he IBP primarily anchors its standing on its alleged responsibility to uphold the
rule of law and the Constitution. Apart from this declaration, however, the IBP
asserts no other basis in support of its locus standi. The mere invocation by the
IBP of its duty to preserve the rule of law and nothing more, while undoubtedly
true, is not sufficient to clothe it with standing in this case. This is too general an
interest which is shared by other groups and the whole citizenry x x x.
Having stated the foregoing, this Court has the discretion to take cognizance of a
suit which does not satisfy the requirement of legal standing when paramount
interest is involved. In not a few cases, the court has adopted a liberal attitude on
the locus standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people. Thus, when the issues raised are of
paramount importance to the public, the Court may brush aside technicalities of
procedure. In this case, a reading of the petition shows that the IBP has
advanced constitutional issues which deserve the attention of this Court in view
of their seriousness, novelty and weight as precedents. Moreover, because
peace and order are under constant threat and lawless violence occurs in
increasing tempo, undoubtedly aggravated by the Mindanao insurgency problem,
the legal controversy raised in the petition almost certainly will not go away. It will
stare us in the face again. It, therefore, behooves the Court to relax the rules on
standing and to resolve the issue now, rather than later.23 (Emphasis supplied)
We accord the same treatment to petitioners in the instant case in their capacity
as voters since they raise important issues involving their right of suffrage,
considering that the issue raised in this petition is likely to arise again.
Whether a Special Election for a Single, Three-Year Term
Senatorial Seat was Validly Held on 14 May 2001
Under Section 9, Article VI of the Constitution, a special election may be called to
fill any vacancy in the Senate and the House of Representatives "in the manner
prescribed by law," thus:
In case of vacancy in the Senate or in the House of Representatives, a special
election may be called to fill such vacancy in the manner prescribed by law, but
the Senator or Member of the House of Representatives thus elected shall serve
only for the unexpired term. (Emphasis supplied)
To implement this provision of the Constitution, Congress passed R.A. No. 6645,
which provides in pertinent parts:
SECTION 1. In case a vacancy arises in the Senate at least eighteen (18)
months or in the House of Representatives at least one (1) year before the next
regular election for Members of Congress, the Commission on Elections, upon
receipt of a resolution of the Senate or the House of Representatives, as the
case may be, certifying to the existence of such vacancy and calling for a special
election, shall hold a special election to fill such vacancy. If Congress is in recess,
an official communication on the existence of the vacancy and call for a special
election by the President of the Senate or by the Speaker of the House of
Representatives, as the case may be, shall be sufficient for such purpose. The
Senator or Member of the House of Representatives thus elected shall serve
only for the unexpired term.
SECTION 2. The Commission on Elections shall fix the date of the special
election, which shall not be earlier than forty-five (45) days nor later than ninety
(90) days from the date of such resolution or communication, stating among
other things the office or offices to be voted for: Provided, however, That if within
the said period a general election is scheduled to be held, the special election
shall be held simultaneously with such general election. (Emphasis supplied)
Section 4 of Republic Act No. 7166 subsequently amended Section 2 of R.A. No.
6645, as follows:
Postponement, Failure of Election and Special Elections. x x x In case a
permanent vacancy shall occur in the Senate or House of Representatives at
least one (1) year before the expiration of the term, the Commission shall call
and hold a special election to fill the vacancy not earlier than sixty (60) days nor
longer than ninety (90) days after the occurrence of the vacancy. However, in
case of such vacancy in the Senate, the special election shall be held
simultaneously with the next succeeding regular election. (Emphasis supplied)
Thus, in case a vacancy arises in Congress at least one year before the
expiration of the term, Section 2 of R.A. No. 6645, as amended, requires
COMELEC: (1) to call a special election by fixing the date of the special election,
which shall not be earlier than sixty (60) days nor later than ninety (90) after the
occurrence of the vacancy but in case of a vacancy in the Senate, the special
election shall be held simultaneously with the next succeeding regular election;
and (2) to give notice to the voters of, among other things, the office or offices to
be voted for.
Did COMELEC, in conducting the special senatorial election simultaneously with
the 14 May 2001 regular elections, comply with the requirements in Section 2 of
R.A. No. 6645?
A survey of COMELECs resolutions relating to the conduct of the 14 May 2001
elections reveals that they contain nothing which would amount to a compliance,
either strict or substantial, with the requirements in Section 2 of R.A. No. 6645,
as amended. Thus, nowhere in its resolutions24 or even in its press releases25 did
COMELEC state that it would hold a special election for a single three-year term
Senate seat simultaneously with the regular elections on 14 May 2001. Nor did
COMELEC give formal notice that it would proclaim as winner the senatorial
candidate receiving the 13th highest number of votes in the special election.
The controversy thus turns on whether COMELECs failure, assuming it did fail,
to comply with the requirements in Section 2 of R.A. No. 6645, as amended,
invalidated the conduct of the special senatorial election on 14 May 2001 and
accordingly rendered Honasans proclamation as the winner in that special
election void. More precisely, the question is whether the special election is
invalid for lack of a "call" for such election and for lack of notice as to the office to
be filled and the manner by which the winner in the special election is to be
determined. For reasons stated below, the Court answers in the negative.
COMELECs Failure to Give Notice
of the Time of the Special Election Did Not
Negate the Calling of such Election
The calling of an election, that is, the giving notice of the time and place of its
occurrence, whether made by the legislature directly or by the body with the duty
to give such call, is indispensable to the elections validity.26 In a general election,
where the law fixes the date of the election, the election is valid without any call
by the body charged to administer the election.27
In a special election to fill a vacancy, the rule is that a statute that expressly
provides that an election to fill a vacancy shall be held at the next general
elections fixes the date at which the special election is to be held and operates
as the call for that election. Consequently, an election held at the time thus
prescribed is not invalidated by the fact that the body charged by law with the
duty of calling the election failed to do so.28 This is because the right and duty to
hold the election emanate from the statute and not from any call for the election
by some authority29 and the law thus charges voters with knowledge of the time
and place of the election.30
Conversely, where the law does not fix the time and place for holding a special
election but empowers some authority to fix the time and place after the
happening of a condition precedent, the statutory provision on the giving of notice
is considered mandatory, and failure to do so will render the election a nullity.31
In the instant case, Section 2 of R.A. No. 6645 itself provides that in case of
vacancy in the Senate, the special election to fill such vacancy shall be held
simultaneously with the next succeeding regular election. Accordingly, the special
election to fill the vacancy in the Senate arising from Senator Guingonas
appointment as Vice-President in February 2001 could not be held at any other
time but must be held simultaneously with the next succeeding regular elections
on 14 May 2001. The law charges the voters with knowledge of this statutory
notice and COMELECs failure to give the additional notice did not negate the
calling of such special election, much less invalidate it.
Our conclusion might be different had the present case involved a special
election to fill a vacancy in the House of Representatives. In such a case, the
holding of the special election is subject to a condition precedent, that is, the
vacancy should take place at least one year before the expiration of the term.
The time of the election is left to the discretion of COMELEC subject only to the
limitation that it holds the special election within the range of time provided in
Section 2 of R.A. No. 6645, as amended. This makes mandatory the requirement
in Section 2 of R.A. No. 6645, as amended, for COMELEC to "call x x x a special
election x x x not earlier than 60 days nor longer than 90 days after the
occurrence of the vacancy" and give notice of the office to be filled. The
COMELECs failure to so call and give notice will nullify any attempt to hold a
special election to fill the vacancy. Indeed, it will be well-nigh impossible for the
voters in the congressional district involved to know the time and place of the
special election and the office to be filled unless the COMELEC so notifies them.
No Proof that COMELECs
Failure to Give Notice of the Office
to be Filled and the Manner of
Determining the Winner in the Special
Election Misled Voters
The test in determining the validity of a special election in relation to the failure to
give notice of the special election is whether the want of notice has resulted in
misleading a sufficient number of voters as would change the result of the special
election. If the lack of official notice misled a substantial number of voters who
wrongly believed that there was no special election to fill a vacancy, a choice by a
small percentage of voters would be void.32
The required notice to the voters in the 14 May 2001 special senatorial election
covers two matters. First, that COMELEC will hold a special election to fill a
vacant single three-year term Senate seat simultaneously with the regular
elections scheduled on the same date. Second, that COMELEC will proclaim as
winner the senatorial candidate receiving the 13th highest number of votes in the
special election. Petitioners have neither claimed nor proved that COMELECs
failure to give this required notice misled a sufficient number of voters as would
change the result of the special senatorial election or led them to believe that
there was no such special election.
Instead, what petitioners did is conclude that since COMELEC failed to give such
notice, no special election took place. This bare assertion carries no value.
Section 2 of R.A. No. 6645, as amended, charged those who voted in the
elections of 14 May 2001 with the knowledge that the vacancy in the Senate
arising from Senator Guingonas appointment as Vice-President in February
2001 was to be filled in the next succeeding regular election of 14 May 2001.
Similarly, the absence of formal notice from COMELEC does not preclude the
possibility that the voters had actual notice of the special election, the office to be
voted in that election, and the manner by which COMELEC would determine the
winner. Such actual notice could come from many sources, such as media
reports of the enactment of R.A. No. 6645 and election propaganda during the
campaign.33
More than 10 million voters cast their votes in favor of Honasan, the party who
stands most prejudiced by the instant petition. We simply cannot disenfranchise
those who voted for Honasan, in the absence of proof that COMELECs omission
prejudiced voters in the exercise of their right of suffrage so as to negate the
holding of the special election. Indeed, this Court is loathe to annul elections and
will only do so when it is "impossible to distinguish what votes are lawful and
what are unlawful, or to arrive at any certain result whatever, or that the great
body of the voters have been prevented by violence, intimidation, and threats
from exercising their franchise."34
Otherwise, the consistent rule has been to respect the electorates will and let the
results of the election stand, despite irregularities that may have attended the
conduct of the elections.35 This is but to acknowledge the purpose and role of
elections in a democratic society such as ours, which is:
to give the voters a direct participation in the affairs of their government, either in
determining who shall be their public officials or in deciding some question of
public interest; and for that purpose all of the legal voters should be permitted,
unhampered and unmolested, to cast their ballot. When that is done and no
frauds have been committed, the ballots should be counted and the election
should not be declared null. Innocent voters should not be deprived of their
participation in the affairs of their government for mere irregularities on the part of
the election officers, for which they are in no way responsible. A different rule
would make the manner and method of performing a public duty of greater
importance than the duty itself.36 (Emphasis in the original)
Separate Documentation and Canvassing
not Required under Section 2 of R.A. No. 6645,
Neither is there basis in petitioners claim that the manner by which COMELEC
conducted the special senatorial election on 14 May 2001 is a nullity because
COMELEC failed to document separately the candidates and to canvass
separately the votes cast for the special election. No such requirements exist in
our election laws. What is mandatory under Section 2 of R.A. No. 6645 is that
COMELEC "fix the date of the election," if necessary, and "state, among others,
the office or offices to be voted for." Similarly, petitioners reliance on Section 73
of B.P. Blg. 881 on the filing of certificates of candidacy, and on Section 4(4) of
R.A. No. 6646 on the printing of election returns and tally sheets, to support their
claim is misplaced. These provisions govern elections in general and in no way
require separate documentation of candidates or separate canvass of votes in a
jointly held regular and special elections.
Significantly, the method adopted by COMELEC in conducting the special
election on 14 May 2001 merely implemented the procedure specified by the
Senate in Resolution No. 84. Initially, the original draft of Resolution No. 84 as
introduced by Senator Francisco Tatad ("Senator Tatad") made no mention of the
manner by which the seat vacated by former Senator Guingona would be filled.
However, upon the suggestion of Senator Raul Roco ("Senator Roco"), the
Senate agreed to amend Resolution No. 84 by providing, as it now appears, that
"the senatorial candidate garnering the thirteenth (13th) highest number of votes
shall serve only for the unexpired term of former Senator Teofisto T. Guingona,
Jr." Senator Roco introduced the amendment to spare COMELEC and the
candidates needless expenditures and the voters further inconvenience, thus:
S[ENATOR] T[ATAD]. Mr. President, I move that we now consider Proposed
Senate Resolution No. 934 [later converted to Resolution No. 84].
T[HE] P[RESIDENT]. Is there any objection? [Silence] There being none, the
motion is approved.
Consideration of Proposed Senate Resolution No. 934 is now in order. With the
permission of the Body, the Secretary will read only the title and text of the
resolution.
T[HE] S[ECRETARY]. Proposed Senate Resolution No. 934 entitled
RESOLUTION CERTIFYING TO THE EXISTENCE OF A VACANCY IN THE
SENATE AND CALLING ON THE COMMISSION ON ELECTIONS (COMELEC)
TO FILL UP SUCH VACANCY THROUGH ELECTION TO BE HELD
SIMULTANEOUSLY WITH THE REGULAR ELECTION ON MAY 14, 2001 AND
THE SENATOR THUS ELECTED TO SERVE ONLY FOR THE UNEXPIRED
TERM
WHEREAS, the Honorable Teofisto T. Guingona, Jr. was elected Senator of the
Philippines in 1998 for a term which will expire on June 30, 2004;
WHEREAS, on February 6, 2001, Her Excellency President Gloria Macapagal
Arroyo nominated Senator Guingona as Vice-President of the Philippines;
WHEREAS, the nomination of Senator Guingona has been confirmed by a
majority vote of all the members of both House of Congress, voting separately;
WHEREAS, Senator Guingona will take his Oath of Office as Vice-President of
the Philippines on February 9, 2001;
WHEREAS, Republic Act No. 7166 provides that the election for twelve (12)
Senators, all elective Members of the House of Representatives, and all elective
provincial city and municipal officials shall be held on the second Monday and
every three years thereafter; Now, therefore, be it
RESOLVED by the Senate, as it is hereby resolved, to certify, as it hereby
certifies, the existence of a vacancy in the Senate and calling the Commission on
Elections (COMELEC) to fill up such vacancy through election to be held
simultaneously with the regular election on May 14, 2001 and the Senator thus
elected to serve only for the unexpired term.
Adopted,
(Sgd.) FRANCISCO S. TATAD
Senator
S[ENATOR] T[ATAD]. Mr. President, I move for the adoption of this resolution.
S[ENATOR] O[SMEA] (J). Mr. President.
T[HE] P[RESIDENT]. Sen. John H. Osmea is recognized.
S[ENATOR] O[SMEA] (J). Thank you, Mr. President. Will the distinguished
Majority Leader, Chairman of the Committee on Rules, author of this resolution,
yield for a few questions?
S[ENATOR] T[ATAD]. With trepidation, Mr. President. [Laughter]
S[ENATOR] O[SMEA] (J). What a way of flattery. [Laughter]
Mr. President, I think I recall that sometime in 1951 or 1953, there was a special
election for a vacant seat in the Senate. As a matter of fact, the one who was
elected in that special election was then Congressman, later Senator Feli[s]berto
Verano.
In that election, Mr. President, the candidates contested the seat. In other words,
the electorate had to cast a vote for a ninth senator because at that time there
were only eight to elect a member or rather, a candidate to that particular seat.
Then I remember, Mr. President, that when we ran after the EDSA revolution,
twice there were 24 candidates and the first 12 were elected to a six-year term
and the next 12 were elected to a three-year term.
My question therefore is, how is this going to be done in this election? Is the
candidate with the 13th largest number of votes going to be the one to take a
three-year term? Or is there going to be an election for a position of senator for
the unexpired term of Sen. Teofisto Guingona?
S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving the
mechanics to the Commission on Elections. But personally, I would like to
suggest that probably, the candidate obtaining the 13th largest number of votes
be declared as elected to fill up the unexpired term of Senator Guingona.
S[ENATOR] O[SMEA] (J). Is there a law that would allow the Comelec to
conduct such an election? Is it not the case that the vacancy is for a specific
office? I am really at a loss. I am rising here because I think it is something that
we should consider. I do not know if we can No, this is not a Concurrent
Resolution.
S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate President.
T[HE] P[RESIDENT]. May I share this information that under Republic Act No.
6645, what is needed is a resolution of this Chamber calling attention to the need
for the holding of a special election to fill up the vacancy created, in this particular
case, by the appointment of our colleague, Senator Guingona, as Vice President.
It can be managed in the Commission on Elections so that a slot for the particular
candidate to fill up would be that reserved for Mr. Guingonas unexpired term. In
other words, it can be arranged in such a manner.
xxxx
S[ENATOR] R[OCO]. Mr. President.
T[HE] P[RESIDENT]. Sen. Raul S. Roco is recognized.
S[ENATOR] R[OCO]. May we suggest, subject to a one-minute caucus, wordings
to the effect that in the simultaneous elections, the 13th placer be therefore
deemed to be the special election for this purpose. So we just nominate 13 and it
is good for our colleagues. It is better for the candidates. It is also less expensive
because the ballot will be printed and there will be less disfranchisement.
T[HE] P[RESIDENT]. That is right.
S[ENATOR] R[OCO]. If we can just deem it therefore under this resolution to be
such a special election, maybe, we satisfy the requirement of the law.
T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance for the
Comelec.
S[ENATOR] R[OCO]. Yes.
T[HE] P[RESIDENT]. to implement.
S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility.
T[HE] P[RESIDENT]. That is right.
S[ENATOR] R[OCO]. We will already consider the 13th placer of the forthcoming
elections that will be held simultaneously as a special election under this law as
we understand it.
T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator Roco.
S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later, maybe it will
be better, Mr. President.
T[HE] P[RESIDENT]. What does the sponsor say?
S[ENATOR] T[ATAD]. Mr. President, that is a most satisfactory proposal because
I do not believe that there will be anyone running specifically
T[HE] P[RESIDENT]. Correct.
S[ENATOR] T[ATAD]. to fill up this position for three years and campaigning
nationwide.
T[HE] P[RESIDENT]. Actually, I think what is going to happen is the 13th
candidate will be running with specific groups.
S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13.
T[HE] P[RESIDENT]. I think we can specifically define that as the intent of this
resolution.
S[ENATOR] T[ATAD]. Subject to style, we accept that amendment and if there
will be no other amendment, I move for the adoption of this resolution.
xxxx
ADOPTION OF S. RES. NO. 934
If there are no other proposed amendments, I move that we adopt this resolution.
T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is there any
objection? [Silence] There being none, the motion is approved. 37
Evidently, COMELEC, in the exercise of its discretion to use means and methods
to conduct the special election within the confines of R.A. No. 6645, merely
chose to adopt the Senates proposal, as embodied in Resolution No. 84. This
Court has consistently acknowledged and affirmed COMELECs wide latitude of
discretion in adopting means to carry out its mandate of ensuring free, orderly,
and honest elections subject only to the limitation that the means so adopted are
not illegal or do not constitute grave abuse of discretion. 38 COMELECs decision
to abandon the means it employed in the 13 November 1951 and 8 November
1955 special elections and adopt the method embodied in Resolution No. 84 is
but a legitimate exercise of its discretion. Conversely, this Court will not interfere
should COMELEC, in subsequent special senatorial elections, choose to revert
to the means it followed in the 13 November 1951 and 8 November 1955
elections. That COMELEC adopts means that are novel or even disagreeable is
no reason to adjudge it liable for grave abuse of discretion. As we have earlier
noted:
The Commission on Elections is a constitutional body. It is intended to play a
distinct and important part in our scheme of government.1wphi1 In the
discharge of its functions, it should not be hampered with restrictions that would
be fully warranted in the case of a less responsible organization. The
Commission may err, so may this Court also. It should be allowed considerable
latitude in devising means and methods that will insure the accomplishment of
the great objective for which it was created free, orderly and honest elections.
We may not agree fully with its choice of means, but unless these are clearly
illegal or constitute gross abuse of discretion, this court should not interfere. 39
A Word to COMELEC
The calling of a special election, if necessary, and the giving of notice to the
electorate of necessary information regarding a special election, are central to an
informed exercise of the right of suffrage. While the circumstances attendant to
the present case have led us to conclude that COMELECs failure to so call and
give notice did not invalidate the special senatorial election held on 14 May 2001,
COMELEC should not take chances in future elections. We remind COMELEC to
comply strictly with all the requirements under applicable laws relative to the
conduct of regular elections in general and special elections in particular.
WHEREFORE, we DISMISS the petition for lack of merit.
SO ORDERED.
G.R. No. L-22335 December 31, 1965
AMANTE P. PURISIMA, petitioner,
vs.
HON. ANGELINO C. SALANGA, Judge of the Court of First Instance of
Ilocos Sur. THE PROVINCIAL BOARD OF CANVASSERS, THE COMMISSION
ON ELECTIONS and GREGORIO CORDERO, respondents.
Jose W. Diokno for petitioner.
Provincial Fiscal Juvenal K. Guerrero for respondent Provincial Board of
Canvassers
Antonio Barredo for respondents Judge Salanga and Gregorio Cordero
Ramon Barrios for respondent Commission on Elections.
Election laws; Petition for recount; Candidate affected can file petition alone.A
candidate affected can file a petition for recount alone, without the concurrence of
the provincial board of canvassers (Cawa vs. Del Rosario, L-16837-40 May 30,
1960). From the fact, therefore, that the provincial board of canvassers has not
petitioned for a recount it cannot be inferred that they were not convinced a
discrepancy existed.
Same; Same; Same; Commission on Elections' copies of election returns
authentic.The Commission on Elections' copies of election returns are
authentic copies within the meaning of Section 168 of the Revised Election Code
(Lawsin vs. Escalona, L-22540, July 31, 1964; Matanog vs. Alejandro, L22502-
03, June 30, 1964).

Same; Same; Erasures and superimpositions in the election returns; Duty of
board of canvassers to suspend canvass; Case at bar.Where, as in the case at
bar, there were patent erasures and superimpositions in words and figures on the
face of the election returns submitted to the board of canvassers, it was
imperative for said board to stop the canvass so as to allow time for verification
of authentic copies and recourse to the courts (Javier vs. Commission on
Elections, L22248, January 30, 1965). A canvass or proclamation made
notwithstanding such patent defects, without awaiting proper remedies, is null
and void (Ibid.).
Same; Same; Same; Failure to submit Commission on Elections' copies to the
board of canvassers.Where a candidate was prevented from securing the
Commission on Elections' copies of the returns to establish a discrepancy
between them and the Provincial Treasurer's copies, the failure to submit the said
copies to the board should not prejudice his right to petition for recount before the
court
Same; Interpretation of election laws.Interpretation of election laws should give
effect to the expressed will of the electorate- Patent erasures and
superimpositions in words and figures of the votes stated in the election returns
strike at the reliability of said returns as basis for canvass and proclamation. A
comparison with the other copies, and, in case of discrepancy, a recount, is the
only way to remove grave doubts as to the correctness of said returns as well as
of ascertaining that they reflect the will of the people.
BENGZON, J.P., J.:
In the election of November 12, 1963, Amante Purisima and Gregorio Cordero
were among the candidates for any of the three offices of Provincial Board
Member of Ilocos Sur. After the election or on November 25, 1963 the provincial
board of canvassers met and started canvassing the returns for said office.
Purisima noted during the canvass that the returns from some precincts, forty-
one (41) in all, showed on their face that the words and figures for Cordero's
votes had been "obviously and manifestly erased" and superimposed with other
words and figures. For purposes of comparison, the Nacionalista Party copies of
the returns for the aforesaid precincts were submitted to the board. A discrepancy
of 5,042 votes in favor of Cordero was thereby found, thus:
Provincial Treasurer's copy: 7,277 votes for Cordero
Nacionalista Party's copy 2,235 votes for Cordero
A request for suspension of the canvass was thereupon made by Purisima. The
board of canvassers denied said request upon the ground that it was not yet
ascertainable if the discrepancies would materially affect the result. Canvass
proceeded.
After the returns had all been read, the result for the office of third (and last)
member of the Provincial Board was the following:
Cordero 41,229 votes
Purisima 39,372 votes.
Difference 1,857 votes
Purisima again called attention to the erasures and discrepancies and asked for
suspension of canvass for him to have recourse to judicial remedy. Denying
said request, the board of canvassers finished the canvass and proclaimed
Cordero the winner, on November 28.
On November 29, Purisima filed a petition in the Commission on Elections to
annul the canvass and proclamation above-mentioned. The Commission on
Elections issued a resolution on November 30, annulling the canvass and
proclamation, as regards Cordero and Purisima.
Purisima, on December 10, filed in the Court of First Instance a petition for
recount under Section 163 of the Revised Election Code. Subsequently, motions
to dismiss the same were filed by the board of canvassers and by Cordero. In his
motion to dismiss, Cordero admitted the erasures and discrepancies on the face
of the returns from 41 precincts, but denied that said erasures were due to
tampering or falsification.
After a preliminary hearing on the motions to dismiss, the Court of First Instance,
on December 27, dismissed the petition for recount. And on December 28,
Cordero filed in the Commission on Elections a motion for resumption of the
canvass.
Purisima, on January 2, 1964, moved for reconsideration of the Court of First
Instance's order of dismissal. In the same case, he also filed, on January 8, a
petition for preliminary injunction to restrain the holding of another canvass.
Annexed to said petition were certified photostatic copies of the Comelec's
copies of the returns from the 41 precincts in question. Furthermore, Purisima
filed with the Commission on Elections, on January 11, an opposition to the
resumption of the canvass.
Alleging that the Commission on Elections was about to order the canvass
resumed, Purisima came to this Court, on January 17, 1964, by petition for
certiorari with preliminary injunction. Petitioner asked that the lower court's order
dismissing his petition for recount be set aside and that the Commission on
Elections be enjoined from ordering resumption of the canvass until after the
judicial recount.
On January 22, 1964 we ordered respondents to answer, and allowed
preliminary injunction to be issued as prayed for upon the posting of a bond of
P500.00. After respondents filed their answer the case was heard and submitted
for decision.
The requisites for judicial recount are set forth in Section 163 of the Revised
Election Code:
When statements of precinct are contradictory. In case it appears to
the provincial board of canvassers that another copy or other authentic
copies of the statement from an election precinct submitted to the board
give to a candidate a different number of votes and the difference affects
 the result of the election, the Court of First Instance of the province, upon
motion of the board or of any candidate affected, may proceed to recount
the votes cast in the precinct for the sole purpose of determining which is
the true statement or which is the true result of the count of the votes
cast in said precinct for the office in question. Notice of such proceeding
shall be given to all candidates affected.
In dismissing the petition for recount, respondent Judge stated that some of the
requisites were not present, namely: first, that it appears to the provincial board
of canvassers that a discrepancy exists; second, that said discrepancy is
between the copy submitted to the board and another authentic copy thereof;
third, that said authentic copy must also be submitted to the board.
First of all, it is not disputed that a candidate affected can file the petition for
recount, even if he does so alone, without the concurrence of the provincial
board of canvassers (Cawa v. Del Rosario, L-16837-40, May 30,1960). From the
fact, therefore, that the provincial board of canvassers has not petitioned for a
recount it cannot be inferred that they were not convinced a discrepancy existed.
In fact, when Purisima first called attention to the discrepancy between the
Nacionalista Party copies and the Provincial Treasurer's copies, the board of
canvassers admitted the discrepancy but stated that it was not yet ascertainable
whether the discrepancy would amount to enough votes as to affect the result.
There is no more question now that the number of votes involved in said
discrepancy is more than enough to alter the result.
Finally, in the motion to dismiss filed by the board of canvassers, the existence of
the discrepancy is not disputed, and the board merely raises the defense that the
recount is up to the court and not to said board (Annex D, Petition).
Passing on to the next point, the basis of the petition for recount was not merely
a discrepancy between the Nacionalista Party copies and the Provincial
Treasurer's copies of the returns. Paragraph 8 of said petition shows that, in
addition, the Commission on Elections' copies were relied upon:
That as a result of the aforesaid erasures, tampering and apparent
falsifications, there exist discrepancies between the Provincial
Treasurer's copies (the basis of the canvass) of the election returns in
the precincts in question, on one hand, and the copies pertaining to the
Nacionalista Party and those pertaining to the Commission on Elections,
on the other, and that said discrepancies materially affect the result of the
election as between herein petitioner and respondent Gregorio Cordero;
Accordingly, even assuming for the nonce a point we do not here decide
that the Nacionalista Party copies are not copies that may be the basis of a
petition for recount, the fact remains that the Commission on Elections' copies
were said to reflect the same discrepancy with the Provincial Treasurer's copies.
It is settled that the Commission on Elections' copies are authentic copies within
the meaning of Section 163 of the Revised Election Code (Laws in v. Escalona,
L-22540, July 31, 1964; Matanog v. Alejandro, L-22502-08, June 30, 1964.)
The trial court. however, ruled that the Commission on Elections' copies had no
application to the petition for recount because they were not submitted to the
board of canvassers. The record definitely shows that the reason why Purisima
was not able to submit to the board said Commission on Elections' copies was
because the board declined to suspend the canvass and proclamation.
It is the duty of the board of canvassers to suspend the canvass in case of patent
irregularity in the election returns. In the present case, there were patent
erasures and superimpositions, in words and figures on the face of the election
returns submitted to the board of canvassers. It was therefore imperative for the
board to stop the canvass so as to allow time for verification of authentic copies
and recourse to the courts (Javier v. Commission on Elections, L-22248, January
30, 1965). A canvass or proclamation made notwithstanding such patent defects,
without awaiting proper remedies, is null and void (Ibid.). In fact, as stated, the
Commission on Elections declared the canvass and proclamation, made by
respondent provincial board of canvassers, null and void.
Since the board of canvassers prevented Purisima from securing the
Commission on Elections' copies of the returns to establish a discrepancy
between them and the Provincial Treasurer's copies, the failure to submit the
Commission on Elections' copies to said board should not prejudice Purisima's
right to petition for recount before the court. It was therefore grave abuse of
discretion for respondent court to refuse to consider the Commission on
Elections' copies, regardless of the patent and admitted irregularities on the face
of the Provincial Treasurer's copies and the alleged discrepancy amounting to
thousands of votes sufficient to affect the results.
Interpretation of election laws should give effect to the expressed will of the
electorate. Patent erasures and superimpositions in words and figures of the
votes stated in the election returns strike at the reliability of said returns as basis
for canvass and proclamation. A comparison with the other copies, and, in case
of discrepancy, a recount, is the only way to remove grave doubts as to the
correctness of said returns as well as of ascertaining that they reflect the will of
the people.
WHEREFORE, the dismissal of the petition for recount is set aside, respondent
Judge is ordered to proceed with the petition for recount, and respondents
Commission on Elections and Provincial Board of Canvassers are enjoined, until
after the termination of proceedings in the petition for recount, from ordering or
holding another canvass and proclamation as between petitioner Purisima and
respondent Cordero.
G.R. No. L-25467 April 27, 1967
LUCAS V. CAUTON, petitioner,
vs.
COMMISSION ON ELECTIONS and PABLO SANIDAD, respondents.
Antonio Barredo for petitioner.
Ramon Barrios for respondent Commission on Elections.
Pablo C. Sanidad and F. D. Villanueva and Associates for respondent Sanidad.
Elections; Commission on Elections; Power over the conduct of elections.The
Commission has the power to decide all administrative questions affecting
elections, except the question involving the right to vote.
Same; Commissions power regarding canvass of election returns.The
Commission on Elections has the power to investigate and act on the propriety or
legality of the canvass of election returns made by the board of canvassers. The
power of the Commission in this respect is simply administrative and supervisory.
It is intended to secure the proclamation of the winning candidate based on the
true count of the votes cast.
Same; Object of the canvass.The object of the canvass is to .determine the
result of the elections based on the official election returns. In order that the
result of the canvass would ref lect the true expression of the peoples will, it
must be based on genuine and untampered election returns, The Commission
exercises its jurisdiction, relative to the conduct of elections, in order to attain that
result.
Same; Tampered election returns; Duty of the Commission.Once the
Commission on Elections is convinced that the election returns in the hands of
the board of canvassers do not constitute the proper basis in ascertaining the
true result of the elections. it is duty bound to take the necessary steps in order
that the proper basis for the canvass is made available. It would be absurd to say
the Commission has a legal duty to perform and at the same time it is denied the
necessary means to perform that duty.
Same; Power of Commission to order opening of ballot boxes.Where the three
copies of the election returns outside the ballot box do not constitute a reliable
basis for a canvass, then the Commission on Elections, in the exercise of its
power to administer and enforce the laws relative to the conduct of elections,
may order the opening of the ballot boxes to ascertain whether the copy inside
each ballot box, corresponding to each precinct, is also tampered like the three
copies outside the ballot box. The Commission may do this on its own initiative,
or upon petition by the proper party. That order does not affect the right to vote or
the validity of the votes cast.
Same; Purpose and effect of opening ballot boxes under the circumstances.
Once it is found that the copy of the election return inside the ballot box is
tampered, the Commission on Elections would then have accomplished two
things, namely: (1) secured a basis for the prosecution for the violation of the
laws relative to elections and (2) afforded the party aggrieved by the alteration of
the election returns outside the ballot box a basis for a judicial recount of the
votes.
Same; Purpose of Election Law.The purpose of the Revised Election Code is
to protect the integrity of elections and to suppress all evils that may violate its
purity and defeat the will of the-voters. The purity of elections is one of the
fundamental requisites of popular government.
Same; Choice of means to insure clean elections is discretionary on
Commission.The Commission on Elections, by constitutional mandate, must
do everything in its power to secure a fair and honest canvass of the votes cast in
the elections. In the performance of its duties, it must be given a considerable
latitude in adopting means and methods that will insure the accomplishment of
the great objective for which it was createdto promote free, orderly and honest
elections. The choice of means taken by the Commission, unless they are clearly
illegal or constitute grave abuse of discretion, should not be interfered with.
Technicalities, which may defeat the will of the sovereign people, as expressed in
their votes, should not be allowed to hamper the Commission in the performance
of its duties.
Same; When opening of the ballot box is allowable.The ballot boxes may be
opened in case there is an election contest. They may also be opened, even if
there is no election contest, when their contents have to be used as evidence in
the prosecution of election frauds. Moreover, they may be opened when they are
the subject of any official investigation which may be ordered by a competent
court or other competent authority. The competent authority must include the
Commission on Elections which is charged with the administration and
enforcement of the laws relative to the conduct of elections.
ZALDIVAR, J.:
In the national elections held on November 9, 1965, petitioner Lucas V. Cauton
and respondent Pablo Sanidad, along with Godofredo S. Reyes, were candidates
for the office of Representative in the second congressional district of Ilocos Sur.
During the canvass by the Provincial Board of Canvassers of Ilocos Sur of the
votes cast for the candidates for Representative in the second congressional
district of Ilocos Sur, and particularly after the Board had opened the envelopes
containing the copies of the election returns from each of the election precincts in
the municipalities of Candon, Santiago and Sta. Cruz that were presented by the
Provincial Treasurer of Ilocos Sur to the Board, respondent Sanidad brought to
the attention of the Board the fact that the entries of votes for the candidates for
Representative in those copies of the election returns that came from the
envelopes presented by the provincial treasurer differed from the entries
appearing in the copies of the returns from the same election precincts that were
in the possession of the Liberal Party.1wph1.t
Respondent Sanidad filed a petition with the Commission on Elections praying
for the opening of the ballot boxes in all the precincts of Candon, Santiago and
Sta. Cruz, in order to retrieve the election returns deposited therein so that those
election returns might be used in the canvass of the votes for the candidates for
Representative in the second district of Ilocos Sur, and that in the meantime the
Provincial Board of Canvassers of Ilocos Sur be ordered to refrain from
proclaiming the winning candidate for the office of Representative in said district.
The Commission on Elections issued the restraining order prayed for by
respondent Sanidad and set his petition for hearing.
After hearing, the Commission on Elections found "that it had been clearly
established that the copies of the election returns for the Municipal Treasurer, for
the Commission on Elections and for the Provincial Treasurer for the municipality
of Santa Cruz have uniform alterations in the entries of the votes cast for
representative showing different number of votes compared with the Liberal Party
copies, while the copies of the election returns for the Commission on Elections
and the Provincial Treasurer for the municipalities of Candon and Santiago have
likewise uniform alterations and showing different numbers compared with the
Liberal Party copies ...."1The copies of the election returns that were furnished
the municipal treasurers of Candon and Santiago were never verified because
the municipal treasurers of those two municipalities did not comply with the
subpoena duces tecum issued by the Commission on Elections directing them to
bring to the Commission the copies of the election returns of the precincts in their
respective municipalities that were in their possession.
On December 22, 1965, respondent Commission on Elections issued an order
providing, among others, that
... to enable the aggrieved party to establish discrepancy between copies
of the election returns provided by law in the aforementioned precincts
for the purpose of obtaining judicial remedy under the provisions of
Section 163 of the Revised Election Code, the Commission Resolved ...
to direct immediately the opening of the ballot boxes of the municipalities
of Candon, Sta. Cruz and Santiago which are now impounded and under
the custody of the Zone Commander of the 1st PC Zone in Camp Olivas,
San Fernando, Pampanga solely for the purpose of retrieving therefrom
the corresponding election returns, copies for the ballot box, in all the
precincts of said municipalities.
Pursuant to the instructions of respondent Commission, contained in the
resolution of December 22, 1965, the ballot boxes from all the precincts in the
municipalities of Candon, Sta. Cruz and Santiago were opened by the Chief of
the Law Enforcement Division of the Commission, Atty. Fernando Gorospe, Jr., in
the presence of witnesses, and the envelopes containing the election returns
found inside the ballot boxes were taken and brought to Manila on December 23,
1965.
On the same date, December 23, 1965, herein petitioner, Lucas V. Cauton, filed
before this Court a petition for certiorari and prohibition with preliminary
injunction, praying that the resolution of the respondent Commission on Elections
dated December 22, 1965 ordering the opening of the ballot boxes used in all the
precincts of Candon, Sta. Cruz and Santiago in the elections of November 9,
1965 be annulled and set aside. The petition further prays that the Commission
on Elections be restrained from opening, the envelopes containing the election
returns found in the afore-mentioned ballot boxes and be ordered to return the
said envelopes to the corresponding ballot boxes. In his petition, petitioner
alleges that the respondent Commission on Elections acted without or in excess
of its jurisdiction in issuing the resolution of December 22, 1965. This Court gave
due course to the petition, but did not issue the writ of preliminary injunction
prayed for. This petition is now the case before Us.
Upon instructions by respondent Commission on Elections, on December 28,
1966, the envelopes that were taken from the ballot boxes were opened and the
election returns were taken out and their contents examined and recorded by a
committee appointed by the Commission. This was done in a formal hearing with
notice to the parties concerned.
Respondent Pablo C. Sanidad filed his answer to instant petition on January 5,
1966, admitting some of the allegations and denying others, and maintaining that
the Commission on Elections had acted well within the bounds of its authority in
issuing the order of December 22, 1965. Respondent Commission on Elections
also filed its answer on January 5, 1966, maintaining that it has authority under
the law to order the opening of the ballot boxes as stated in its resolution of
December 22, 1965.
In the meantime, on the basis of the discrepancies in the entries of the votes for
the candidates for Representative, between the election returns taken out of the
ballot boxes that were opened by order of the Commission of Elections and the
election returns submitted by the Provincial Treasurer of Ilocos Sur to the
Provincial Board of Canvassers of Ilocos Sur, respondent Pablo C. Sanidad filed
a petition with the Court of First Instance of Ilocos Sur, docketed as Election
Case No. 16-N, for a recount of the votes in all the precincts of Candon, Sta.
Cruz and Santiago, pursuant to the provisions of Section 163 of the Revised
Election Code.
On February 14, 1966, petitioner filed before this Court in urgent motion, in this
case, praying for the issuance of an order enjoining the Court of First Instance of
Ilocos Sur (Branch II-Narvacan) from further proceeding with Election Case No.
16-N, abovementioned, pending final decision of the instance case, upon the
ground that the recount of the ballots in that case in the court below would render
the instant case moot and academic. This motion was denied by this Court in a
resolution dated February 17, 1966.
The principal issue in the present case revolves on the of the resolution of the
respondent Commission of Elections, dated December 22, 1965, which orders
the opening of the ballot boxes used in all the precincts in the municipalities of
Candon, Sta. Cruz and Santiago, Ilocos Sur, during the elections of November 9,
1965 for the purpose of retrieving therefrom the corresponding election returns,
copies for the ballot box, "to enable the aggrieved party to establish discrepancy
between copies of the election returns provided by law in the aforementioned
precincts for the purpose of obtaining judicial remedy under the provisions of
Section 163 of the Revised Election Code."
It is the stand of the petitioner that respondent Commission on Elections is
without jurisdiction to issue, or has acted in excess of jurisdiction in issuing, the
resolution in question, so that said resolution is null and void and should not be
given legal force and effect. The petitioner contends that under Section 157 of
the Revised Election Code the Commission on Elections has authority to order
the opening of the ballot boxes "only in connection with an investigation
conducted for the purpose of helping the prosecution of any violation of the
election laws or for the purely administrative purpose but not when the sole
purpose is, as in this case, to assist a party in trying to win the election ...." The
petitioner further, contends that "the mere fact that the copies of the returns in the
precincts in question in the possession of the Liberal Party do not tally with the
returns involving the same precincts in the possession of the Provincial
Treasurer, the Commission of Elections and the Nacionalista Party as well does
not legally support the validity of the resolution of the respondent Commission in
question ...."2
We cannot sustain the stand of the petitioner. We believe that in issuing the
resolution in question the Commission on Elections simply performed a function
as authorized by the Constitution, that is, to "have exclusive charge of the
enforcement and administration of all laws relative to the conduct of elections
and ... exercise all other functions which may be conferred upon it by law." The
Commission has the power to decide all administrative questions affecting
elections, except the question involving the right to vote. 3
This Court in a line of decisions has ruled that the Commission on Election has
the power to investigate and act on the propriety or legality of the canvass of
election returns made by the board of canvassers. In the case of Albano vs.
Arranz, L-19260, January 31, 1962, this Court, through Mr. Justice J.B.L. Reyes,
held as follows:
The suspension of the proclamation of the winning candidate pending an
inquiry into irregularities brought to the attention of the Commission on
Elections was well within its administrative jurisdiction, in view of the
exclusive authority conferred upon it by the Constitution (Art. X ) for the
administration and enforcement of all laws relative to elections. The
Commission certainly had the right to inquire whether or not
discrepancies existed between the various copies of election returns for
the precincts in question, and suspend the canvass all the meantime so
the parties could ask for a recount in case of variance ....'
What the respondent Commission on Elections did in the case now before Us is
just what is contemplated in the abovequoted ruling of this Court. The power of
the Commission on Elections in this respect is simply administrative and
supervisory intended to secure the proclamation of the winning candidate
based on the true count of the votes cast. When the Commission on Elections
exercises this power the purpose is not for the Commission to help a candidate
win the election but to bring about the canvass of the true results of the elections
as certified by the boards of election inspectors in every precinct. The object of
the canvass is to determine the result of the elections based on the official
election returns. In order that the result of the canvass would reflect the true
expression of the people's will in the choice of their elective officials, the canvass
must be based on true, genuine, correct, nay untampered, election returns. It is
in this proceedings that the Commission on Elections exercises its supervisory
and administrative power in the enforcement of laws relative to the conduct of
elections, by seeing to it that the canvass is based on the election returns as
actually certified by the members of the board of inspectors. Once the
Commission on Elections is convinced that the elections returns in the hands of
the board of canvassers do not constitute the proper basis in ascertaining the
true result of the elections, it should be its concern, nay its duty, to order the
taking of such steps as may be necessary in order that the proper basis for the
canvass is obtained or made available.
The election law requires the board of inspectors to prepare four copies of the
election return in each precinct one to be deposited in the ballot box, one to be
delivered to the municipal treasurer, one to be sent to the provincial treasurer,
and one to be sent to the Commission on Elections. In the case of the canvass of
the election returns for candidates for provincial or national offices, the election
returns received by the provincial treasurer from the boards of inspectors are
used. It is the duty of the provincial treasurer to turn over to the provincial board
of canvassers the election returns received by him from the boards of inspectors.
If the Commission on Elections is duly informed and it so finds, in appropriate
proceedings, that the election returns in the hands of the provincial treasurer are
tampered, then the Commission should afford the candidate adversely affected
by the tampering an opportunity to show that there exist authentic copies of the
same election returns which are not tampered. A recourse may be had to the
copies received by the Commission on Elections and to the copies received by
the municipal treasurer. If it is shown, that the copies in the hands of the
Commission on Elections and of the municipal treasurer are similarly tampered
as the copies in the hands of the provincial treasurer, then it becomes evident
that all the three copies of the election returns outside the ballot box do not
constitute a reliable basis for a canvass. The only copies left to be checked,
whether they are also tampered or not, are the ones inside the ballot boxes.
Certainly, the Commission on Elections, in the exercise of its power to administer
and enforce the laws relative to the conduct of elections, may order the opening
of the ballot boxes to ascertain whether the copy inside each ballot box is also
tampered like the three copies outside the ballot box, corresponding to each
precinct. The Commission on Elections may do this on its own initiative, or upon
petition by the proper party. Once it is found that the copy of the election return
inside the ballot box is untampered, the Commission on Elections would then
have accomplished two things, namely: (1) secured a basis for the prosecution
for the violation of the laws relative to elections, and (2) afforded the party
aggrieved by the alteration of the election returns outside the ballot box a basis
for a judicial recount of the votes as provided for in Section 163 of the Revised
Election Code. Thus, the Commission on Elections has thereby made available
the proper and reliable basis for the canvass of the votes that will lead to the
proclamation by the board of canvassers of the true winner in the elections. In so
doing the Commission on Elections, as we have said, had performed its
constitutional duty of administering and enforcing the laws relative to the conduct
of elections with a view to promoting clean and honest elections the very
purpose for which the Commission on Elections was created by constitutional
mandate.
In the case now before Us, the Commission on Elections issued the questioned
resolution "after hearing the arguments of the petitioner and the opposition
thereto and considering that it has been clearly established that the copies of the
election returns for the Municipal Treasurer, for the Commission on Elections and
for the Provincial Treasurer for the municipality of Sta. Cruz have uniform
alteration in the entries of the votes cast for representative showing different
number of votes compared with the Liberal Party copies, while the copies of the
election returns for the Commission of Elections and the Provincial Treasurer for
the municipalities of Candon and Santiago have likewise uniform alterations and
showing different numbers compared with the Liberal Party copies ..." 5Indeed, in
the face of this finding by the Commission on Elections, which indicates a clear
violation of the election law, and which indicates an attempt to procure the
proclamation of the winner in the elections for Representative in the second
congressional district of Ilocos Sur by the use of tampered election returns, can
the Commission on Elections be remiss in the performance of its duties as a
constitutional body committed with the exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections? The Revised
Election Code gives to the Commission on Elections the direct and immediate
supervision over provincial, municipal and city officials designated by law to
perform duties relative to the conduct of elections and included among these
officials are members of the provincial board of canvassers. 6The provincial board
of canvassers is enjoined by law to canvass all the votes cast for
Representatives on the basis of the election returns produced by the provincial
treasurer.7The Commission on Elections has a duty to enforce this law and it has
the duty to see to it that the election returns to be used for canvassing must be
genuine and authentic, not falsified or tampered with. Where the election returns
produced by the provincial treasurer have been shown to have been tampered,
and all the other copies outside the ballot boxes have also been shown to have
been tampered or falsified, it is certainly within the power of the Commission on
Elections to issue such order as would ascertain the existence of the genuine,
authentic and untampered election returns, and thus open the way for the
summary recount of the votes, in accordance with law, for the purposes only of
the canvass of the votes and the proclamation of the candidate found to have
obtained the highest number of votes. In the case now before Us, it is found by
the Commission on Elections that no other copies can be had except those
deposited in the ballot boxes. Hence, the necessity for the Commission to order
the retrieving of the copies of the election returns from the ballot boxes. An order
to this effect does not affect the right to vote or the validity of any vote cast, so
that it is perfectly within the power of the Commission on Elections to issue such
an order in the exercise of its exclusive power to administer and enforce the laws
relative to the conduct of elections. It would indeed be absurd to say that the
Commission on Elections has a legal duty to perform and at the same time it is
denied the necessary means to perform said duty.
The purpose of the Revised Election Code is to protect the integrity of elections
and to suppress all evils that may violate its purity and defeat the will of the
voters.8The purity of the elections is one of the most fundamental requisites of
popular government.9The Commission on Elections, by constitutional mandate,
must do everything in its power to secure a fair and honest canvass of the votes
cast in the elections. In the performance of its duties, the Commission must be
given a considerable latitude in adopting means and methods that will insure the
accomplishment of the great objective for which it was created to promote
free, orderly, and honest elections. The choice of means taken by the
Commission on Elections, unless they are clearly illegal or constitute grave
abuse of discretion, should not be interfered with. 10Technicalities, which are not
conducive to free, orderly and honest elections, but on the contrary may defeat
the will of the sovereign people as expressed in their votes, should not be
allowed to hamper the Commission on Elections in the performance of its duties.
To sustain the petitioner in the present case is to deny the Commission on
Elections the power to retrieve the copies of the election returns from the ballot
boxes in order that the true number of votes cast for a candidate may be known
and thus permit a canvass on the basis of election returns that are patently
falsified. We cannot, and We must not, sanction the stand of petitioner.
As We have adverted to, the Commission on Elections has the power to inquire
whether there exist discrepancies among the various copies of the election
returns.11Of all the copies prepared by the board of inspectors the copy least
susceptible to being tampered with is the one deposited in the ballot box. Where
the three copies outside the ballot boxes appear to have been uniformly altered,
there is no plausible reason why the copy deposited in the ballot box may not be
used to determine whether discrepancies exist in the various copies. Inasmuch
as the Commission on Elections has the right to determine whether said
discrepancies exist, it must also have the right to consult said returns, which
cannot be done unless the ballot boxes are opened. It is noteworthy that the
Revised Election Code does not provide that it is the courts that have the power
to order the opening of the ballot box in a situation like this.
Section 157 of the Revised Election Code, on which petitioner herein relies in
support of his stand in the present case, authorizes the opening of the ballot box
whenever it is the subject of an official investigation. It provides:
The municipal treasurer shall keep the boxes unopened in his
possession in a secure place and under his responsibility for three
months, unless they are the subject of an official investigation, or a
component court or tribunal shall demand them sooner, or the competent
authority shall order their preservation for a longer time in connection
with any pending contest or investigation.
Under this section the ballot boxes may be opened in case there is an election
contest. They may also be opened even if there is no election contest when their
contents have to be used as evidence in the prosecution of election
frauds.12Moreover, they may be opened when they are the subject of any official
investigation which may be ordered by a competent court or other competent
authority.13The "competent authority" must include the Commission on Elections
which is charged with the administration and enforcement of the laws relative to
the conduct of elections. In the instant case the Commission on Elections found
that it has been clearly established that the election returns outside the ballot
boxes, in all the precincts in the municipalities of Candon, Santiago and Sta.
Cruz, have been tampered with. It is within the power of the Commission to order
the investigation of that apparent anomaly that has connection with the conduct
of elections. The investigation may be in connection with the prosecution for the
violations of the election laws and at the same time to ascertain the condition of
the election returns inside the ballot boxes as compared with the election returns
outside the ballot boxes, for the same precincts. The opening of the ballot boxes
may, therefore, be prayed for by a candidate who is prejudiced by the apparent
falsification of the election returns outside the ballot boxes, and in ordering the
opening of the ballot boxes the purpose of the Commission is not to help a
particular candidate win an election but to properly administer and enforce the
laws relative to the conduct of elections.
From what has been said We hold that the order of December 22, 1965, being
questioned by the petitioner in the present case, was perfectly within the power
of the Commission on Elections to issue.
Wherefore, the petition for certiorari and prohibition in the present case is
dismissed, with costs against the petitioner. It is so ordered.
G.R. No. 188456 September 10, 2009
H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. BAGARES,
ALLAN JONES F. LARDIZABAL, GILBERT T. ANDRES, IMMACULADA D.
GARCIA, ERLINDA T. MERCADO, FRANCISCO A. ALCUAZ, MA. AZUCENA
P. MACEDA, and ALVIN A. PETERS, Petitioners,
vs.
COMMISSION ON ELECTIONS, Represented by HON. CHAIRMAN JOSE
MELO, COMELEC SPECIAL BIDS and AWARDS COMMITTEE, represented
by its CHAIRMAN HON. FERDINAND RAFANAN, DEPARTMENT OF
BUDGET and MANAGEMENT, represented by HON. ROLANDO ANDAYA,
TOTAL INFORMATION MANAGEMENT CORPORATION and SMARTMATIC
INTERNATIONAL CORPORATION, Respondents.
PETE QUIRINO-QUADRA, Petitioner-in-Intervention.
SENATE OF THE PHILIPPINES, represented by its President, JUAN PONCE
ENRILE, Movant-Intervenor.
Judicial Review; Locus Standi; The prescription on standing may be relaxed, as
the Court has often relaxed the rule for non-traditional plaintiffs, like ordinary
citizens and taxpayers, when the public interest so requires, such as when the
matter is of transcendental importance, of overarching significance to society, or
of paramount public interest; Where issues of public importance are presented,
there is no necessity to show that the suitor has experienced or is in actual
danger of suffering direct and personal injury as the requisite injury is assumed.
It is true, as postulated, that to have standing, one must, as a rule, establish
having suffered some actual or threatened injury as a result of the alleged illegal
government conduct; that the injury is fairly traceable to the challenged action;
and that the injury is likely to be redressed by a favorable action. The prescription
on standing, however, is a matter of procedure. Hence, it may be relaxed, as the
Court has often relaxed the rule for non-traditional plaintiffs, like ordinary citizens
and taxpayers, when the public interest so requires, such as when the matter is
of transcendental importance, of overarching significance to society, or of
paramount public interest. As we wrote in Chavez v. PCGG, 299 SCRA 744
(1998) where issues of public importance are presented, there is no necessity to
show that the suitor has experienced or is in actual danger of suffering direct and
personal injury as the requisite injury is assumed.
Same; Same; Hierarchy of Courts; The doctrinal formulation may vary, but the
bottom line is that the Court may except a particular case from the operations of
its rules when the demands of justice so require; designed to facilitate the
attainment of justice; The policy on the hierarchy of courts is not an iron-clad rule,
for, indeed, the Court has full discretionary power to take cognizance and
assume jurisdiction of special civil actions for certiorari and mandamus filed
directly with it for exceptionally compelling reasons or if warranted by the nature
of the issues clearly and specifically raised in the petition.The doctrinal
formulation may vary, but the bottom line is that the Court may except a particular
case from the operations of its rules when the demands of justice so require. Put
a bit differently, rules of procedure are merely tools designed to facilitate the
attainment of justice. Accordingly, technicalities and procedural barriers should
not be allowed to stand in the way, if the ends of justice would not be subserved
by a rigid adherence to the rules of procedure. This postulate on procedural
technicalities applies to matters of locus standi and the presently invoked
principle of hierarchy of courts, which discourages direct resort to the Court if the
desired redress is within the competence of lower courts to grant. The policy on
the hierarchy of courts, which petitioners indeed failed to observe, is not an iron-
clad rule. For indeed the Court has full discretionary power to take cognizance
and assume jurisdiction of special civil actions for certiorari and mandamus filed
directly with it for exceptionally compelling reasons or if warranted by the nature
of the issues clearly and specifically raised in the petition.
Same; Same; Same; Bids and Bidding; The requirement to comply with the
protest mechanism is imposed on the bidders.Respondents contend that
petitioners should have availed themselves of the otherwise mandatory protest
mechanism set forth in Sections 55 and 58 of the procurement law (Republic Act
No. 9184) and the counterpart provisions found in its Implementing Rules and
Regulations (IRR)-A before seeking judicial remedy. Insofar as relevant, Sec. 55
of Republic Act No. 9184 provides that decisions of the bids and awards
committee (BAC) in all stages of procurement may be protested, via a verified
position paper, to the head of the procuring agency. On the other hand, the
succeeding Sec. 58 states that court action may be resorted to only after the
protest contemplated in Sec. 55 shall have been completed. Petitioners except.
As argued, the requirement to comply with the protest mechanism, contrary to
what may have been suggested in Infotech, is imposed on the bidders.
Petitioners position is correct. As a matter of common sense, only a bidder is
entitled to receive a notice of the protested BAC action. Only a losing bidder
would be aggrieved by, and ergo would have the personality to challenge, such
action. This conclusion finds adequate support from the ensuing provisions of the
aforesaid IRR-A.
Election Law; Automated Election System; Bids and Bidding; The bidding ground
rules, as spelled out primarily in the Request for Proposal (RFP) and the
clarificatory bid bulletins does not require, for bidding purposes, that there be an
incorporation of the bidding joint ventures or consortiums.It may be, as
petitioners observed, that the TIM-Smartmatic joint venture remained an
unincorporated aggroupment during the bid-opening and evaluation stages. It
ought to be stressed, however, that the fact of non-incorporation was without a
vitiating effect on the validity of the tender offers. For the bidding ground rules, as
spelled out primarily in the RFP and the clarificatory bid bulletins, does not
require, for bidding purposes, that there be an incorporation of the bidding joint
ventures or consortiums. In fact, Bid Bulletin Nos. 19 and 20 recognize the
existence and the acceptability of proposals of unincorporated joint ventures. In
response to a poser, for example, regarding the 60% Filipino ownership
requirement in a joint venture arrangement, the SBAC, in its Bid Bulletin No. 22,
stated: In an unincorporated joint venture, determination of the required Filipino
participation may be made by examining the terms and conditions of the [JVA]
and other supporting financial documents submitted by the joint venture. (Em-
phasis ours.) Petitioners, to be sure, have not shown that incorporation is part of
the pass/fail criteria used in determining eligibility.
Same; Same; Same; There is no requirement under either Republic Act No.
8436, as amended, or the Request for Proposal (RFP), that all the suppliers,
manufacturers or distributors involved in the transaction should be part of the
joint ventureon the contrary, the Instruction to Bidders allows the bidder to
subcontract portions of the goods or services under the automation project.
Petitioners beef against the TIM-Smartmatic JVA is untenable. First off, the
Comelec knows the very entities whom they are dealing with, which it can hold
solidary liable under the automation contract, should there be contract violation.
Secondly, there is no requirement under either Republic Act No. 8436, as
amended, or the RFP, that all the suppliers, manufacturers or distributors
involved in the transaction should be part of the joint venture. On the contrary, the
Instruction to Biddersas petitioners themselves admitallows the bidder to
subcontract portions of the goods or services under the automation project.
Same; Same; The bottom line is that the required 2007 automation, be it viewed
in the concept of a pilot test or not, is not a mandatory requirement for the choice
of system in, or a prerequisite for, the full automation of the May 2010 elections.
From the practical viewpoint, the pilot testing of the technology in question in
an actual, scheduled electoral exercise under harsh conditions would have been
the ideal norm in computerized system implementation. The underscored proviso
of Sec. 6 of Republic Act No. 8436 is not, however, an authority for the
proposition that the pilot testing of the PCOS in the 2007 national elections in the
areas thus specified is an absolute must for the machines use in the 2010
national/local elections. The Court can concede that said proviso, with respect to
the May 2007 elections, commands the Comelec to automate in at least 12
defined areas of the country. But the bottom line is that the required 2007
automation, be it viewed in the concept of a pilot test or not, is not a mandatory
requirement for the choice of system in, or a prerequisite for, the full automation
of the May 2010 elections.
Same; Same; Statutory Construction; Sec. 6 of the amended Republic Act No.
8436, as couched, unmistakably conveys the idea of unconditional full
automation in the 2010 electionsa construal making pilot testing of the
Automated Election System (AES) a prerequisite or condition sine qua non to
putting the system in operation in the 2010 elections is tantamount to reading into
said section something beyond the clear intention of Congress, as expressed in
the provision itself.To argue that pilot testing is a condition precedent to a full
automation in 2010 would doubtless undermine the purpose of Republic Act No.
9369. For, as aptly observed during the oral arguments, if there was no political
exercise in May 2007, the country would theoretically be barred forever from
having full automation. Sec. 6 of the amended Republic Act No. 8436, as
couched, therefore, unmistakably conveys the idea of unconditional full
automation in the 2010 elections. A construal making pilot testing of the AES a
prerequisite or condition sine qua non to putting the system in operation in the
2010 elections is tantamount to reading into said section something beyond the
clear intention of Congress, as expressed in the provision itself. We reproduce
with approval the following excerpts from the comment of the Senate itself: The
plain wordings of Republic Act No. 9369 (that amended RA 8436) commands that
the 2010 elections shall be fully automated, and such full automation is not
conditioned on pilot testing in the May 2007 elections. Congress merely gave
COMELEC the flexibility to partially use the AES in some parts of the country for
the May 2007 elections.
Same; Same; Words and Phrases; Automated Election System (AES) and
Precinct-Count Optic Scan (PCOS), Defined.An AES is not synonymous to
and ought not to be confused with the PCOS. Sec. 2(a) of Republic Act No. 8436,
as amended, defines an AES as a system using appropriate technology which
has been demonstrated in the voting, counting, consolidating, canvassing and
transmission of election results, and other electoral processes. On the other
hand, PCOS refers to a technology wherein an optical ballot scanner, into which
optical scan paper ballots marked by hand by the voter are inserted to be
counted. What may reasonably be deduced from these definitions is that PCOS
is merely one of several automated voting, counting or canvassing technologies
coming within the term AES, implying in turn that the automated election system
or technology that the Comelec shall adopt in future elections need not, as a
matter of mandatory arrangement, be piloted in the adverted two highly
urbanized cities and provinces.
Same; Same; Any lingering doubt on the issue of whether or not full automation
of the 2010 regular elections can validly proceed without a pilot run of the
Automated Election System (AES) should be put to rest with the enactment in
March 2009 of Republic Act No. 9525, in which Congress appropriated PhP
11.301 billion to automate the 2010 electionsthe Republic Act No. 9525 is a
compelling indication that it was never Congress intent to make the pilot testing
of a particular automated election system in the 2007 elections a condition
precedent to its use or award of the 2010 Automation Project.Any lingering
doubt on the issue of whether or not full automation of the 2010 regular elections
can validly proceed without a pilot run of the AES should be put to rest with the
enactment in March 2009 of Republic Act No. 9525, in which Congress
appropriated PhP 11.301 billion to automate the 2010 elections, subject to
compliance with the transparency and accuracy requirements in selecting the
relevant technology of the machines, thus: Sec. 2. Use of Funds.x x x
Provided, however, That disbursement of the amounts herein appropriated or any
part thereof shall be authorized only in strict compliance with the Constitution, the
provisions of [RA] No. 9369 and other election laws incorporated in said Act as to
ensure the conduct of a free, orderly, clean, honest and credible election and
shall adopt such measures that will guaranty transparency and accuracy in the
selection of the relevant technology of the machines to be used on May 10, 2010
automated national and local elections. (Emphasis added.) It may safely be
assumed that Congress approved the bill that eventually became Republic Act
No. 9525, fully aware that the system using the PCOS machines were not piloted
in the 2007 electoral exercise. The enactment of Republic Act No. 9525 is to us a
compelling indication that it was never Congress intent to make the pilot testing
of a particular automated election system in the 2007 elections a condition
precedent to its use or award of the 2010 Automation Project. The comment-in-
intervention of the Senate says as much.
Same; Same; The first function of the Comelec under the Constitutionand the
Omnibus Election Code for that matterrelates to the enforcement and
administration of all laws and regulations relating to the conduct of elections to
public office to ensure a free, orderly and honest electoral exercise.The first
function of the Comelec under the Constitutionand the Omnibus Election Code
for that matterelates to the enforcement and administration of all laws and
regulations relating to the conduct of elections to public office to ensure a free,
orderly and honest electoral exercise. And how did petitioners come to their
conclusion about their abdication theory? By acceding to Art. 3.3 of the
automation contract, Comelec relinquished, so petitioners claim, supervision and
control of the system to be used for the automated elections. To a more specific
point, the loss of control, as may be deduced from the ensuing exchanges, arose
from the fact that Comelec would not be holding possession of what in IT jargon
are the public and private keys pair.
Same; Same; With the view the Court takes of the automation contract, the role
of Smartmatic TIM Corporation is basically to supply the goods necessary for the
automation project, such as but not limited to the Precint-Count Optic Scan
(PCOS) machines, PCs, electronic transmission devices and related equipment,
both hardware and software, and the technical services pertaining to their
operation.With the view we take of the automation contract, the role of
Smartmatic TIM Corporation is basically to supply the goods necessary for the
automation project, such as but not limited to the PCOS machines, PCs,
electronic transmission devices and related equipment, both hardware and
software, and the technical services pertaining to their operation. As lessees of
the goods and the back-up equipment, the corporation and its operators would
provide assistance with respect to the machines to be used by the Comelec
which, at the end of the day, will be conducting the election thru its personnel and
whoever it deputizes. And if only to emphasize a point, Comelecs contract is with
Smartmatic TIM Corporation of which Smartmatic is a 40% minority owner, per
the JVA of TIM and Smartmatic and the Articles of Incorporation of Smartmatic
TIM Corporation. Accordingly, any decision on the part or on behalf of Smartmatic
will not be binding on Comelec. As a necessary corollary, the board room voting
arrangement that Smartmatic and TIM may have agreed upon as joint venture
partners, inclusive of the veto vote that one may have power over the other,
should really be the least concern of the Comelec.
Same; Same; A voter, if so minded to preserve the secrecy of his ballot, will
always devise a way to do so; By the same token, one with least regard for
secrecy will likewise have a way to make his vote known.The contention that
the PCOS would infringe on the secrecy and sanctity of the ballot because, as
petitioners would put it, the voter would be confronted with a three feet long
ballot, does not commend itself for concurrence. Surely, the Comelec can put up
such infrastructure as to insure that the voter can write his preference in relative
privacy. And as demonstrated during the oral arguments, the voter himself will
personally feed the ballot into the machine. A voter, if so minded to preserve the
secrecy of his ballot, will always devise a way to do so. By the same token, one
with least regard for secrecy will likewise have a way to make his vote known.
Same; Same; Anti-Dummy Law (C.A. 108, as amended); The Anti-Dummy Law
has been enacted to limit the enjoyment of certain economic activities to Filipino
citizens or corporations; The Court is not aware of any constitutional or statutory
provision classifying as a nationalized activity the lease or provision of goods and
technical services for the automation of an election.The Anti-Dummy Law has
been enacted to limit the enjoyment of certain economic activities to Filipino
citizens or corporations. For liability for violation of the law to attach, it must be
established that there is a law limiting or reserving the enjoyment or exercise of a
right, franchise, privilege, or business to citizens of the Philippines or to
corporations or associations at least 60 per centum of the capital of which is
owned by such citizens. In the case at bench, the Court is not aware of any
constitutional or statutory provision classifying as a nationalized activity the lease
or provision of goods and technical services for the automation of an election. In
fact, Sec. 8 of Republic Act No. 8436, as amended, vests the Comelec with
specific authority to acquire AES from foreign sources, thus: SEC 12.
Procurement of Equipment and Materials.To achieve the purpose of this Act,
the Commission is authorized to procure, xxx, by purchase, lease, rent or other
forms of acquisition, supplies, equipment, materials, software, facilities, and other
services, from local or foreign sources xxx. (Emphasis added.) Petitioners cite
Executive Order No. (EO) 584, Series of 2006, purportedly limiting contracts for
the supply of materials, goods and commodities to government-owned or
controlled corporation, company, agency or municipal corporation to
corporations that are 60% Filipino. We do not quite see the governing relevance
of EO 584. For let alone the fact that Republic Act No. 9369 is, in relation to EO
584, a subsequent enactment and, therefore, enjoys primacy over the executive
issuance, the Comelec does fall under the category of a government-owned and
controlled corporation, an agency or a municipal corporation contemplated in the
executive order.
Same; Same; Even though the Automated Election System (AES) has its flaws,
Comelec and Smartmatic have seen to it that the system is well-protected with
sufficient security measures in order to ensure honest elections.With the AES,
the possibility of system hacking is very slim. The PCOS machines are only
online when they transmit the results, which would only take around one to two
minutes. In order to hack the system during this tiny span of vulnerability, a super
computer would be required. Noteworthy also is the fact that the memory card to
be used during the elections is encrypted and read-onlymeaning no illicit
program can be executed or introduced into the memory card. Therefore, even
though the AES has its flaws, Comelec and Smartmatic have seen to it that the
system is well-protected with sufficient security measures in order to ensure
honest elections.
Same; Same; Failure of all the machines would not necessarily translate into
failure of electionsmanual count tabulation and transmission can be done,
Precint-Count Optic Scan (PCOS) being a paper-ballot technology.The
disruption of the election process due to machine breakdown or malfunction may
be limited to a precinct only or could affect an entire municipal/city. The worst
case scenario of course would be the wholesale breakdown of the 82,000 PCOS
machines. Nonetheless, even in this most extreme case, failure of all the
machines would not necessarily translate into failure of elections. Manual count
tabulation and transmission, as earlier stated, can be done, PCOS being a
paper-ballot technology. If the machine fails for whatever reason, the paper
ballots would still be there for the hand counting of the votes, manual tabulation
and transmission of the ERs. Failure of elections consequent to voting machines
failure would, in fine, be a very remote possibility.
Same; Same; The first step is always difficulthardly anything works, let alone
ends up perfectly the first time around.The first step is always difficult. Hardly
anything works, let alone ends up perfectly the first time around. As has often
been said, if one looks hard enough, he will in all likelihood find a glitch in any
new system. It is no wonder some IT specialists and practitioners have
considered the PCOS as unsafe, not the most appropriate technology for
Philippine elections, and easily hackable, even. And the worst fear expressed is
that disaster is just waiting to happen, that PCOS would not work on election day.
Congress has chosen the May 2010 elections to be the maiden run for full
automation. And judging from what the Court has heard and read in the course of
these proceedings, the choice of PCOS by Comelec was not a spur-of-moment
affair, but the product of honest-to-goodness studies, consultations with CAC,
and lessons learned from the ARMM 2008 automated elections. With the backing
of Congress by way of budgetary support, the poll body has taken this historic, if
not ambitious, first step. It started with the preparation of the RFP/TOR, with a list
of voluminous annexes embodying in specific detail the bidding rules and
expectations from the bidders. And after a hotly contested and, by most
accounts, a highly transparent public bidding exercise, the joint venture of a
Filipino and foreign corporation won and, after its machine hurdled the end-to-
end demonstration test, was eventually awarded the contract to undertake the
automation project. Not one of the losing or disqualified bidders questioned, at
least not before the courts, the bona fides of the bidding procedures and the
outcome of the bidding itself.
Same; Same; The Comelec, in the discharge of its awesome functions as
overseer of fair elections, administrator and lead implementor of laws relative to
the conduct of elections, should not be stymied with restrictions that would
perhaps be justified in the case of an organization of lesser responsibility.The
Comelec is an independent constitutional body with a distinct and pivotal role in
our scheme of government. In the discharge of its awesome functions as
overseer of fair elections, administrator and lead implementor of laws relative to
the conduct of elections, it should not be stymied with restrictions that would
perhaps be justified in the case of an organization of lesser responsibility. It
should be afforded ample elbow room and enough wherewithal in devising
means and initiatives that would enable it to accomplish the great objective for
which it was createdto promote free, orderly, honest and peaceful elections.
This is as it should be for, too often, Comelec has to make decisions under
difficult conditions to address unforeseen events to preserve the integrity of the
election and in the process the voice of the people. Thus, in the past, the Court
has steered away from interfering with the Comelecs exercise of its power which,
by law and by the nature of its office properly pertain to it. Absent, therefore, a
clear showing of grave abuse of discretion on Comelecs part, as here, the Court
should refrain from utilizing the corrective hand of certiorari to review, let alone
nullify, the acts of that body.
PUNO (C.J.), Separate Concurring Opinion:
Election Law; Automated Election System; Separation of Powers; A touchstone of
our Constitution is that critical public policy judgments belong to the legislative
branch, and the Court must not unduly intrude into this exclusive domain.A
touchstone of our Constitution is that critical public policy judgments belong to
the legislative branch, and the Court must not unduly intrude into this exclusive
domain. In enacting RA 8436 (Election Modernization Act) on December 22,
1997, the legislature has clearly chosen the policy that an AES shall be used by
the COMELEC for the process of voting, counting of votes and
canvassing/consolidation of results of the national and local elections. It decided
to put an end to the manual conduct of our elections that has frustrated the
honest casting of votes by our sovereign people. In the pursuit of its objective,
the legislature defined what it considered an AES and provided the standards for
its implementation. It further determined the minimum functional capabilities of
the system and delegated to the COMELEC the development and adoption of a
system of evaluation to ascertain that the minimum system capabilities would be
met.
Same; Same; Statutory Construction; The interpretation of Section 5, Republic
Act No. 8436, as amended, is nothing less than a brain twisterit appears like a
Rorschach inkblot test, in which petitioners and respondents assign meaning to
certain words as though they were deciphering images formed by inkblots.
Whether the conduct of the pilot exercise of the AES is a condition precedent to
its nationwide implementation involves the correct interpretation of Section 5 of
RA 8436. The interpretation of Section 5, RA 8436, as amended, is nothing less
than a brain twister. It appears like a Rorschach inkblot test, in which petitioners
and respondents assign meaning to certain words as though they were
deciphering images formed by inkblots. Using the same word of the law, they
arrive at different conclusions.
Same; Same; Same; Words and Phrases; The conjunctions provided, that and
provided, further that and provided, finally that signify that the clauses that follow
the conjunction are a pre-requisite or a condition to the fulfillment of the previous
clausethe words provided, that mean the same as as long as, in order that,
and if only.The respondents reading of Section 5 disregards the tenor of the
entire provision. A rational reading of the entire provision will show that the
different parts isolated and then interpreted by the respondents are connected by
the conjunctions provided, that and provided, further that and provided, finally
that. These conjunctions signify that the clauses that follow the conjunction are a
pre-requisite or a condition to the fulfillment of the previous clause. The words
provided, that mean the same as as long as, in order that, and if only. other than those provided in Article 4.5 are concerned, Smartmatic does not
Same; Same; Same; Laws of Congress have equal intrinsic dignity and effect,
and the implied repeal of a prior by a subsequent law of that body must depend
upon its intention and purpose in enacting the subsequent law.In the case at
bar therefore, there is unmistakable evidence of the legislative intent to
implement a full nationwide automation of the May 2010 elections. It is
impossible to give effect to this intent and at the same time comply with the
condition precedent of conducting pilot exercises in selected areas. The
irreconcilability between Section 5 of RA 8436, as amended, and Section 2 of RA
9525 is apparent for Congress could not have maintained the requirement of a
pilot exercise as a condition precedent to full automation when it had made it
absolutely clear that it wanted to push through with a full nationwide AES this
May 2010. Laws of Congress have equal intrinsic dignity and effect; and the
implied repeal of a prior by a subsequent law of that body must depend upon its
intention and purpose in enacting the subsequent law. What is necessary is a
manifest indication of a legislative purpose to repeal. Repeal by implication
proceeds from the premise that where a statute of a later date clearly reveals an
intention on the part of the legislature to abrogate a prior act on the subject, that
intention must be given effect.
Same; Same; Judicial Power; The Courts judicial function is merely to check and
not to supplant the judgment of the Commission on Electionsto ascertain
merely whether it has gone beyond the limits prescribed by law, and not to
exercise the power vested in it or to determine the wisdom of its act.It should
be underscored that RA 8436, as amended by RA 9369, does not mandate the
use of any specific voting equipment. Instead, the law gave COMELEC the sole
power to prescribe the adoption of the most suitable technology of demonstrated
capability as it may deem appropriate and practical, taking into account the
situation prevailing in the area and the funds available for the purpose. Absent
any capricious and whimsical exercise of judgment on the part of the COMELEC,
its determination of the appropriate election technology, as well as the procedure
for its procurement, should be respected. Our judicial function is merely to check
and not to supplant the judgment of the COMELEC; to ascertain merely whether
it has gone beyond the limits prescribed by law, and not to exercise the power
vested in it or to determine the wisdom of its act.
Same; Same; Corporation Law; Smartmatics veto power in the Board of
Directors in respect of certain key financial and technical actions is but a fair and
reasonable check against possible abuses by the majority stockholder.The
petitioners find particularly repugnant Smartmatics veto power in the Board of
Directors in respect of certain key financial and technical actions. In my view,
however, this is but a fair and reasonable check against possible abuses by the
majority stockholder. As Smartmatic is the joint venture partner having the
greater experience in automated elections, it deemed it necessary to reserve to
itself the veto power on these important financial matters so as not to
compromise the technical aspects of the Automation Project. As far as matters
have any veto right. This is clear from Article 4.4.
Same; Same; Optical scan or Marksense technology has been used for
decades for standardized tests such as the Scholastic Aptitude Test (SAT)the
optical scan ballot is a paper-based technology that relies on computers in the
counting and canvassing process.The petitioners postulate that the PCOS
machines offered by the Smartmatic TIM Corporation have not been successfully
used in an electoral exercise in the Philippines or abroad, as required by Section
12 of RA 8436, as amended. A quick overview of the optical scan technology is in
order. Optical scan or Marksense technology has been used for decades for
standardized tests such as the Scholastic Aptitude Test (SAT). The optical scan
ballot is a paper-based technology that relies on computers in the counting and
canvassing process. Voters make their choices by using a pencil or a pen to
mark the ballot, typically by filling in an oval or by drawing a straight line to
connect two parts of an arrow. The ballots are counted by scanners, which may
be located either at the precinct (in precinct-count systems) or at some central
location (central-count systems). If ballots are counted at the polling place,
voters put the ballots into the tabulation equipment, which scans and tallies the
votes. These tallies can be captured in removable storage media, which are
transported to a central tally location or are electronically transmitted from the
polling place to the central tally location. If ballots are centrally counted, voters
drop ballots into sealed boxes; and, after the polls close, election officials transfer
the sealed boxes to the central location where they run the ballots through the
tabulation equipment.
Same; Same; The Supreme Court is neither constitutionally permitted nor
institutionally outfitted to conduct a cost-benefit analysis of the system or of the
nuances of the available technologyit is ill-equipped to deal with the complex
and difficult problems of election administration; The Commission on Elections,
an independent Constitutional Commission armed with specialized knowledge
born of years of experience in the conduct of elections, has the sole prerogative
to choose which Automated Election System (AES) to utilize.This Court is
neither constitutionally permitted nor institutionally outfitted to conduct a cost-
benefit analysis of the system or of the nuances of the available technology. It is
ill-equipped to deal with the complex and difficult problems of election
administration. This inordinately difficult undertaking requires expertise, planning,
and the commitment of resources, all of which are peculiarly within the province
of the legislative and the executive branches of government. The petitioners
contend that the PCOS machines do not comply with the minimum system
capabilities set forth by Section 6 of RA 8436, as amended. Then, in an entirely
speculative exercise, they conjure a perturbing series of doomsday scenarios
that would allegedly result from using this particular technology: unaddressed
logistical nightmares, failure of elections, and massive disenfranchisement. Let
me preface my discussion of this issue by accentuating once more the core of
RA 8346, as amended: the COMELEC, an independent Constitutional Commis-
sion armed with specialized knowledge born of years of experience in the
conduct of elections, has the sole prerogative to choose which AES to utilize. In
carrying out this mandate, Section 6 of the same law directs the COMELEC to
develop and adopt, with the assistance of the COMELEC Advisory Council, an
evaluation system to ascertain that the minimum system capabilities are met.
Same; Same; Hoary is the principle that the courts will not interfere in matters
that are addressed to the sound discretion of government agencies entrusted
with the regulation of activities coming under their special technical knowledge
and training; Politics is a practical matter, and political questions must be dealt
with realisticallynot from the standpoint of pure theory.I do not find any grave
abuse of discretion on the part of the COMELEC in awarding the Automation
Contract to the Smartmatic TIM Corporation. It has approved the PCOS system,
and we are bereft of the right to supplant its judgment. Hoary is the principle that
the courts will not interfere in matters that are addressed to the sound discretion
of government agencies entrusted with the regulation of activities coming under
their special technical knowledge and training. Our disquisition in the seminal
case Sumulong v. COMELEC, 73 Phil. 288 (1941), again finds cogent
application: The Commission on Elections is a constitutional body. It is intended
to play a distinct and important part in our scheme of government. In the
discharge of its functions, it should not be hampered with restrictions that would
be fully warranted in the case of a less responsible organization. The
Commission may err, so this court may also. It should be allowed considerable
latitude in devising means and methods that will insure the accomplishment of
the greater objective for which it was createdfree, orderly and honest elections.
We may not fully agree with its choice of means but unless these are clearly
illegal or constitute gross abuse of discretion, this court should not interfere.
Politics is a practical matter, and political questions must be dealt with realistically
not from the standpoint of pure theory. The Commission on Elections, because
of its fact-finding facilities, its contacts with political strategists, and its knowledge
derive from actual experience in dealing with political controversies, is in a
peculiarly advantageous position to decide complex political questions.
Same; Same; Separation of Powers; Checks and Balances; The system of
divided and interlocking powers of the branches of government are carefully
blended so as to produce a complex system of checks and balances that
preserve the autonomy of each branch, without which independence can become
supremacy.As the ultimate guardian of the Constitution, we have the
distinguished but delicate duty of determining and defining constitutional
meaning, divining constitutional intent, and deciding constitutional disputes.
Nonetheless, this power does not spell judicial superiority (for the judiciary is co-
equal with the other branches) or judicial tyranny (for it is supposed to be the
least dangerous branch). Thus, whenever the Court exercises its function of
checking the excesses of any branch of government, it is also duty-bound to
check itself. The system of divided and interlocking powers of the branches of
government are carefully blended so as to produce a complex system of checks
and balances that preserve the autonomy of each branch, without which
independence can become supremacy.
Same; Same; Same; Same; The art of good government requires cooperation
and harmony among the branches.The COMELEC is a constitutional body,
mandated to play a distinct and important role in the governmental scheme. In
the performance of its constitutional duties, it must be given a range of authority
and flexibility, for the art of good government requires cooperation and harmony
among the branches. We may not agree fully with the choices and decisions that
the COMELEC makes, but absent any constitutional assault, statutory breach or
grave abuse of discretion, we should never substitute our judgment for its own.
Same; Same; Delegation of Powers; The Commission on Election has not
abdicated its constitutional and legal mandate to control and supervise the
electionsSmartmatic and TIM are merely service providers or lessors of goods
and services to the Commission.The COMELEC identified the type of
technology, specifications and capabilities of the system to be used in the 2010
elections; and the bidders were required to submit their bids in accordance with
the COMELECs stipulations. All the choices made by the winning bidder were to
be subject to approval by the COMELEC, and the final design and functionality
of the system shall still be subject to [its] final customization requirements. It is
clear that the COMELEC has not abdicated its constitutional and legal mandate
to control and supervise the elections. Smartmatic and TIM are merely service
providers or lessors of goods and services to the Commission. Indeed, Article 6.7
of the Automation Contract, provides that the entire process of voting, counting,
transmission, consolidation and canvassing of votes shall be conducted by
COMELECs personnel and officials.
Same; Same; Same; The power and duty of the Commission on Elections
(COMELEC) to administer election laws and to have control and supervision over
the automated elections is not incompatible with the decision to subcontract
services that may be better performed by those who are well-equipped to handle
complex technological matters with respect to the implementation of the
Automated Election System (AES).The power and duty of the COMELEC to
administer election laws and to have control and supervision over the automated
elections is not incompatible with the decision to subcontract services that may
be better performed by those who are well-equipped to handle complex
technological matters with respect to the implementation of the AES. The
subcontractor cannot act independently of the COMELEC.
CARPIO,J., Dissenting Opinion:
Election Law; Automated Election System; Contrary to the Commission on
Elections (COMELEC) view that Section 5 of Republic Act No. 8436, as
amended, merely envisions an initial limited use of an automated system in the
2007 elections, both the text of the law and the intent behind its enactment show
a legislative design to use an automated system following a staggered, dual-
phased implementation scheme: the first phase calls for the use of an automated
system on a partial or limited scale involving selected, voter-dense areas in each
of our three major island groupings while the second phase calls for the full use
of an automated system nationwide.Contrary to the COMELECs view that
Section 5, as amended, merely envisions an initial limited use of an automated
system in the 2007 elections, both the text of the law and the intent behind its
enactment show a legislative design to use an automated system following a
staggered, dual-phased implementation scheme: the first phase calls for the use
of an automated system on a partial or limited scale involving selected, voter-
dense areas in each of our three major island groupings while the second phase
calls for the full use of an automated system nationwide. Textually, this is made
mandatory by the uniform use of the word shall when Section 5 mandated that
the AES shall be used in at least two highly urbanized cities and two provinces
each in Luzon, Visayas and Mindanao, to be chosen by the Commission (phase
one) and In succeeding regular national or local elections, the AES shall be
implemented nationwide (phase 2). The word shall operates to impose a duty. mandated under Section 5, as amended, may be dispensed with.The phrase
Same; Same; One need not search far and wide to see the wisdom, logic and
practicality for this legislative insistence on transforming our electoral processes
from manual to automated gradually in phases.The framework of using an
automated election system in a staggered, dual-phased manner in RA 9369 is
not novel. The same legislative scheme was adopted by Congress in RA 8436,
although the controlled variable in the first phase of RA 8436 was not the scope
of the electoral area but the positions included in the automated tallying. Thus,
instead of limiting the use of an automation system in highly urbanized areas and
provinces in the first phase, RA 8436 mandated the use of an automated system
in the 11 May 1998 elections to canvass the votes cast only for the positions of
president, vice-president, senators, and parties, organizations or coalitions
participating under the party-list system. One need not search far and wide to
see the wisdom, logic and practicality for this legislative insistence on
transforming our electoral processes from manual to automated gradually in
phases. As Senator Gordon puts it, the ultimate goal is to take the kinks out of
the system before deploying it full scale. Indeed, in systems implementation, a
pilot run or a parallel run before full turn-over to the new system is a norm. Thus,
even as Congress gave the COMELEC discretion in choosing the appropriate
technology, Congress insisted on a phased implementation involving local
government units from each of our three major island groupings cognizant as it
was of the difficulties inherent in automating elections in an archipelago as
dispersed as ours, with an average nationwide telecommunications coverage of
not more than 75%.
Same; Same; Compliance with the requirement in Republic Act No. 9369 for pre-
election field test and mock election cannot serve the same purpose as the initial
staggered or partial implementation of the automated system.Nor can it be said
that compliance with the requirement in RA 9369 for pre-election field test and
mock election, stipulated in the Contract, serves the same purpose as the initial
staggered or partial implementation of the automated system. Congress treated
both mechanisms differently by separately providing for partial implementation in
Section 5, as amended, and for a field test and mock election report by the
Technical Evaluation Committee in Section 11. Indeed, field tests and mock
elections can never replicate actual conditions on election day.
Same; Same; Statutory Construction; The office of statutory interpretation has
never been to privilege the letter of the law over its spirit; Use of language, while
a mark of civilization, remains susceptible to error as the Court knows all too well
after having reviewed in the past imprecisely drafted legislation.The office of
statutory interpretation has never been to privilege the letter of the law over its
spirit. On the contrary, it has been and always will be the other way aroundto
breathe life to the legislative intent even to the extent of ignoring the text. This is
because use of language, while a mark of civilization, remains susceptible to
error as the Court knows all too well after having reviewed in the past imprecisely
drafted legislation.
Same; Same; Same; Section 12 of Republic Act No. 8436, as amended, is no
authority to support respondents proposition that the phased automation
[p]articipation in the 2007 pilot exercise appears in Section 12 of RA 8436, as
amended by RA 9369, under the sub-heading Procurement of Equipment and
Materials. The phrase refers to the participation of a bidder in the 2007 elections,
which participation is not conclusive that the bidders system of equipment and
materials is fit and suitable for the 2010 nationwide electoral exercise. This
phrase does not mean that the pilot or partial automation in Section 5, as
amended, can be dispensed with prior to a nationwide automated electoral
exercise. The requirement of a pilot or partial automation in Section 5, as
amended, is a totally different requirement from the requirement of fitness of a
bidders system in the procurement of equipment and materials under Section
12, as amended. Consequently, Section 12, as amended, is no authority to
support respondents proposition that the phased automation mandated under
Section 5, as amended, may be dispensed with. Indeed, Section 12 has nothing
to do with the issue. Section 5 and Section 12, as amended, are separate
mechanisms of the law, governing different aspects of the automation project, but
commonly intended to ensure the conduct of secure, accurate, and reliable
automated elections.
Same; Same; Same; Neither the text nor purpose of Republic Act No. 9525
supports the submission that Republic Act No. 9525 has repealed Section 5 of
Republic Act No. 8436, as amendedan implementing statute cannot repeal
what it intends to enforce.Neither the text nor purpose of RA 9525 supports
respondents submission that RA 9525 has repealed Section 5 of RA 8436, as
amended. On the contrary, the proviso in Section 2 of RA 9525 states that the
disbursement of the amounts herein appropriated or any part thereof shall be
authorized only in strict compliance with the Constitution [and] the provisions of
Republic Act No. 9369 x x x. Thus, the COMELEC is authorized to spend the
appropriated amount only in strict compliance with RA 9369, which mandates a
partial automation. The statement in Section 2 that such measures that will
guaranty transparency and accuracy in the selection of the relevant technology of
the machines to be used in the May 10, 2010 automated national and local
election shall be adopted should be read with the rest of Section 2. At any rate,
RA 9525 funds the implementation of RA 8436, as amended by RA 9369. An
implementing statute cannot repeal what it intends to enforce.
Same; Same; Whoever controls the access keys controls the electionscontrol
of the access keys means the capacity to instantaneously change the election
results in any precinct in the country.Items (1) and (3) are unmistakably
repugnant to Section 26 of RA 8426. Whoever controls the access keys controls
the elections. Control of the access keys means the capacity to instantaneously
change the election results in any precinct in the country. Giving to the Provider
the access keysboth the private and public access keysis like giving to the
system administrator of Yahoo or Hotmail ones private password to his or her
email account. The private key is supposed to be private to the Chair of the
Board of Election Inspectors, generated by him and unknown to the Provider.
Otherwise, the Provider will have the capacity to alter the election results at the
precinct level. Worse, even the private keys at the canvassing level are
generated by the Provider, allowing the Provider to change the election results at
the canvassing level. Clearly, the COMELEC has abdicated control over the
elections to the Provider, putting the integrity and outcome of the 10 May 2010
elections solely in the hands of the Provider. Moreover, the polling places and
canvassing centers, which are the critical operational areas during the elections,
must be under the full control of the COMELEC.
Same; Same; Republic Act No. 8436 does not bifurcate control and supervision
along technical and non-technical linesSection 26 requires no less than
complete and exclusive control and supervision by the Commission on Elections
(COMELEC) over the automated system.What Section 26 confines to the
COMELECs exclusive control and supervision, the COMELEC in the Contract
relinquishes to Smartmatic. By designating Smartmatic as the entity in charge
of the crucial technical aspects of the automated systems operation beginning the 2010 elections. The provisos of Section 5 merely prescribe the
equipment security and installation and results canvassing and transmission
the COMELEC contented itself with taking charge over the systems non-
technical, that is, manual aspects. However, RA 8436 does not bifurcate control
and supervision along technical and non-technical lines. On the contrary, Section
26 treated the entire automated system wholistically by mandating that [t]he
System shall be under the exclusive supervision and control of the Commission.
Section 26 requires no less than complete and exclusive control and supervision
by the COMELEC over the automated system. The regime of partial, non-
exclusive COMELEC control over the automated system under the Contract falls
short of Section 26s stringent standard.
Same; Same; No automated election system is perfect, but we also cannot take
chances with our fragile democracy.The COMELECs lack of experience in
nationwide automation, its non-familiarity with its chosen technology, the gaps in
security features of the system, the scale of its operation, Smartmatics control
over the automation aspects of the system, and the not more than 75% network
coverage currently available in this archipelago of more than 7,000 islands all
combine to create a gaping black hole of unknown risks which can crash the
untested system come 10 May 2010. Undoubtedly, no automated election system
is perfect. But we also cannot take chances with our fragile democracy. After all,
what these machines count are not the days earnings of a general merchandise
store. They tabulate the rawest expression of the sovereign will of every voter in
this polity. This is why Congress saw fit to use technologys benefits gingerly. Lost
in the headlong rush to switch this countrys electoral system from fully manual to
fully automated overnight is the sobering thought that if, for any reason relating to
the implementation of the Contract, there is a failure of elections and no
President and Vice-President are proclaimed, and no Senate President and
Speaker of the House are chosen, by noon of 30 June 2010, a power vacuum is
certain to emerge. This is the surest way to defeat the purpose of the entire
electoral exercise, and put at unnecessary risk our hard-earned democracy.
CORONA,J., Separate Opinion:
Election Law; Automated Election System; Neither Section 5 nor Section 12 of
Republic Act No. 8436 removes or constrains the mandate of the Comelec to
implement an Automated Election System (AES) nationwide beginning the 2010
elections.Citing the proceedings of the Senate on Senate Bill No. 2231 (from
which RA 9329 originated), petitioners posit that Sections 5 and 12 of RA 8436,
as amended, impose the restriction that no AES can be implemented in the 2010
elections unless the said AES shall have been pilot-tested in at least two highly
urbanized cities and two provinces each in Luzon, Visayas and Mindanao during
the 2007 elections. Petitioners claim that the impugned notice of award and
contract contravene Sections 5 and 12 of RA 8436, as amended, because they
authorize the use of PCOS machines that have never undergone pilot-testing.
The view of petitioners is, however, at odds with the plain language of the law
and the proceedings of the Senate. The aforecited provisions do not limit or
restrict the statutory mandate of the Comelec to implement a nationwide AES
minimum scope of, as well as the conditions for, the implementation of an AES by
the Comelec in the 2007 elections. On the other hand, Section 12 simply
regulates the capability of the supplies, equipment, materials, software, facilities
and other services which the Comelec can procure. Neither provision, however,
removes or constrains the mandate of the Comelec to implement an AES
nationwide beginning the 2010 elections.
Same; Same; The directive of the law itself is clear: the nationwide
implementation of the Automated Election System (AES) commences in the 2010
elections.In the event that no AES was implemented in the 2007 elections,
Section 5 does not prohibit the Comelec from implementing an AES nationwide
starting in the 2010 elections. Rather, the last clause of Section 5 is categorical
that in succeeding regular national or local elections, an AES shall be
implemented nationwide. And the 2010 elections were the elections that
immediately followed the 2007 elections, the regular elections held immediately
after effectivity of [RA 9369]. In other words, the directive of the law itself is clear:
the nationwide implementation of the AES commences in the 2010 elections.
Same; Same; Statutory Construction; Laws are to be interpreted in a way that will
render them effective, not in a manner that will make them inoperativeto insist
that no nationwide Automated Election System (AES) can be implemented in the
2010 elections because no AES was implemented in the 2007 elections is to
disregard the categorical language of the law.Laws are to be interpreted in a
way that will render them effective, not in a manner that will make them
inoperative. To insist, as petitioners do, that no nationwide AES can be
implemented in the 2010 elections because no AES was implemented in the
2007 elections is to disregard the categorical language of the law. It frustrates
and defeats the legislative intent to fully automate the 2010 elections. Indeed, if
petitioners argument were to be pursued to its (not-so-) logical conclusion, RA
8436, as amended by RA 9369, would be a dead law. Under petitioners theory,
no AES can be implemented in any future election unless Congress enacts
another law. This is so because, according to petitioners themselves, the
condition precedent for any nationwide implementation of the AESthe
implementation of the AES in at least two highly urbanized cities and two
provinces each in Luzon, Visayas and Mindanao in the 2007 electionswas not
complied with.
Same; Same; Same; Considering that Republic Act No. 9369 took effect only on
February 10, 2007, it was almost impossible to utilize an Automated Election
System (AES) even in at least two highly urbanized cities and two provinces
each in Luzon, Visayas and Mindanao during the May 14, 2007 elections; The
law obliges no one to perform an impossibilitylaws and rules must be
interpreted in a way that they are in accordance with logic, common sense,
reason and practicality.Considering that RA 9369 took effect only on February
10, 2007, it was almost impossible to utilize an AES even in at least two highly
urbanized cities and two provinces each in Luzon, Visayas and Mindanao during
the May 14, 2007 elections. Considering that, from the effectivity date of RA
9369, there was only a little over three months left before the 2007 elections, the
additional burden (on the preparations for the 2007 elections) of the procurement
process for and implementation of even a partial AES of the said elections would
have been a superhuman task. More significantly, the 2007 appropriations for the
Comelec did not include a budget for AES. The convergence of time and funding
constraints made the implementation of any AES in the 2007 elections
impossible for the Comelec to conduct. Nemo tenetur ad impossibile. The law
obliges no one to perform an impossibility. Laws and rules must be interpreted in
a way that they are in accordance with logic, common sense, reason and
practicality.
Same; Same; Same; Government Procurement Reform Act (Republict Act No.
9184); Bids and Bidding; Joint Venture Agreements; Republict Act No. 9184 and
its implementing rules only require that the Joint Venture Agreements (JVA) be
valid and notarizedincorporation of a JVA under the Corporation Code through
registration with the SEC is not essential for the validity of a JVA; To hold that the
Joint Venture Agreements (JVA) ought to be accompanied by articles of
incorporation is to unduly add to the requirement of the law and its implementing
regulations, in the guise of interpretation or construction.RA 9184 and its
implementing rules only require that the JVA be valid and notarized. Incorporation
of a JVA under the Corporation Code through registration with the SEC is not
essential for the validity of a JVA. So long as it meets the essential requisites of a
contract and is embodied in a public document, a JVA is valid regardless of its
incorporation through registration with the SEC. Where the law makes no
distinction, no distinction need be made. Since the validity of the JVA is separate
and distinct from its incorporation, I cannot subscribe to petitioners position that
the incorporation of the Smartmatic and TIM JVA must also be required for
purposes of the bidding. To hold that the JVA ought to be accompanied by
articles of incorporation is to unduly add to the requirement of the law and its
implementing regulations, in the guise of interpretation or construction.
Same; Same; Same; Same; Same; Direct contracting or single source
procurement does not require elaborate bidding because all the supplier needs to
do is submit a price quotation, which offer may then be accepted immediately,
subject to certain conditions; Clearly, the intention of Republic Act No. 9184 is not
to compel government agencies to deal with every copyright-holder, exclusive
manufacturer and exclusive distributor, otherwise, it will restrict the mode of
procurement to direct contracting only.RA 9184 provides under Article XVI for
direct contracting as one of the alternative methods of procurement. Direct
contracting or single source procurement does not require elaborate bidding
because all the supplier needs to do is submit a price quotation, which offer may
then be accepted immediately, but only under the following conditions: (a) when
the goods may be obtained only from the proprietary source because patents,
trade secrets and copyrights prohibit others from manufacturing the same item;
(b) when procurement of critical components from a specific manufacturer,
supplier or distributor is a condition precedent to hold a contractor to guarantee
its project performance and (c) those sold by an exclusive dealer or
manufacturer, which does not have a sub-dealer selling. Clearly then, the
intention of RA 9184 is not to compel government agencies to deal with every
copyright-holder, exclusive manufacturer and exclusive distributor; otherwise, it
will restrict the mode of procurement to direct contracting only. Thus, there is no
compulsion under the law for the Comelec to contract with Dominion as the
holder of the copyright to the PCOS machine or with Jarltech as the
manufacturer thereof or 2Go as the transporter/distributor of the PCOS
machines. What is crucial is that Smartmatic-TIM assumes solidary liability for
the principal prestation of the July 10, 2009 contract and the RFP, and that it
stipulates (under Article 3.3 of the contract) that the performance of portions
thereof by other persons or entities not parties to this Contract shall not relieve [it]
of said obligations and concomitant liabilities.
Same; Same; Corporation Law; Joint Venture Agreements; As the source of the
authority, the stockholders may by auto-limitation impose restraints or restrictions
on their own powers.It is not the management but the ownership of the joint
venture Smartmatic-TIM which is required to be at least 60% Filipino. The board
of directors of a corporation is a creation of the stockholders and, as such, the
board controls and directs the affairs of the corporation by delegation of the
stockholders. Hence, the authority to be exercised by the board of directors of
the joint venture of Smartmatic-TIM is actually the authority of the stockholders of
TIM and Smartmatic from which the joint venture derives its authority. As the
source of the authority, the stockholders may by auto-limitation impose restraints
or restrictions on their own powers such as that allegedly done by TIM in its joint
venture with Smartmatic. Besides, issues on the distribution of management
powers in the joint venture are a purely business prerogative in which the Court
would rather not meddle.
Same; Same; International Standards Operation (ISO) Certification; An
International Standards Operation (ISO) certificate is intended to assure the
Comelec that the manufacturing process of the solution provider complies with
international standards, which purpose is nevertheless still achieved if the
Precinct-Count Optical Scan (PCOS) machines are produced by a facility that
has an ISO 9000 certification.The Comelec also did not err in accepting the
ISO 9000 and EPA certifications submitted by Smartmatic-TIM. Though not
required under RA 9184, ISO 9000 and EPA certificates are required under the
RFP. An ISO certificate is intended to assure the Comelec that the
manufacturing process of the solution provider complies with international
standards. This purpose is nevertheless still achieved if the PCOS machines are
produced by a facility that has an ISO 9000 certification. It is of record that the
PCOS machines to be procured by the Comelec are manufactured for
Smartmatic by its subsidiary Jarltech. Thus, the ISO certification of Jarltech
provides sufficient assurance that the PCOS machines are manufactured
according to international standards.
Same; Same; Well-designed and carefully-crafted contracts will represent neither
an abdication of the Commission on Elections (Comelecs) mandate nor a
restraint on the Comelecs oversight powers, but rather a valid reconfiguration
much needed in election administration.With the advent of electronic voting,
procurement contracts will be accompanied by concerns about their tendency to
obscure traditional lines of responsibility. Nonetheless, well-designed and
carefully-crafted contracts will represent neither an abdication of the Comelecs
mandate nor a restraint on the Comelecs oversight powers, but rather a valid
reconfiguration much needed in election administration. The Comelec took pains
to draft a contract that preserves its constitutional and statutory responsibilities
and at the same time meets the novel contingencies resulting from the
automation of elections.
Same; Same; The basic contents of the ballot as required by Congress dictate
the size and form of the ballot that the Commission on Elections (Comelec) shall
prescribefor as long as the requirements are met, the system of secrecy and
sanctity of the ballot adopted by Congress under Republict Act No. 9369 is
deemed observed by the Comelec.While delegating to the Comelec the
determination of the size and form of the ballot, Congress prescribed the
following minimum requirements of its content: (1) that it shall contain the titles of
the position to be filled and/or the proposition to be voted upon in an initiative,
referendum or plebiscite; (2) that under each position to be filled, the names of
candidates shall be arranged alphabetically by surname and uniformly indicated
using the same type size and (3) that the voter must see all of the ballot options
on all pages before completing his or her vote and to allow the voter to review
and change all ballot choices prior to completing and casting his or her ballot. In
effect, the basic contents of the ballot as required by Congress dictate the size
and form of the ballot that the Comelec shall prescribe. For as long as the
requirements are met, the system of secrecy and sanctity of the ballot adopted
by Congress under RA 9369 is deemed observed by the Comelec.
Same; Same; There is no inherent flaw in the voting procedure adopted by the
Commission on Elections (Comelec) whereby each voter must manually feed the
ballot into the Precinct-Count Optical Scan (PCOS) machine; The law can only
do so much in protecting the ballots sanctity.There is no inherent flaw in the
voting procedure adopted by the Comelec whereby each voter must manually
feed the ballot into the PCOS machine. There are sufficient safeguards to the
secrecy of the voting process in that the voter alone will hold the ballot and feed it
to the PCOS machine. It is all up to the voter whether to discard caution and
disclose the contents of the ballot. The law can only do so much in protecting its
sanctity. Besides, assuming that the requirement under the contract between the
Comelec and Smartmatic-TIM as to the size of the ballot poses concerns in
connection with the secrecy of the ballot, the Comelec is not without power to
issue the necessary rules and regulations that will effectively address them. Such
rules and regulations may include the specific manner on how assistance on
feeding the ballot to a PCOS machine may be rendered to a voter to avoid
compromising the secrecy of the ballot.
Same; Same; Administrative Law; There are highly technical, specialized
interstitial matters that Congress does not decide itself but delegates to
specialized agencies to decide.Petitioners are alarmed that the digital
signature, security keys, source code and removable memory card are at the
disposal of Smarmatic-TIM. They argue that all this puts Smartmatic-TIM in
control not only of the process but also the outcome of the election. There are
highly technical, specialized interstitial matters that Congress does not decide
itself but delegates to specialized agencies to decide. In RA 9369, Congress
delegated to not just one but four specialized bodies the duty to ensure that the
AES to be adopted for the 2010 elections will be the most appropriate and
secure. These are the Comelec itself, the Comelec-ITD, the Advisory Council and
the Technical Evaluation Committee. I am not prepared to say that we should
doubt their ability and their dedication to ensure compliance with the minimum
capabilities and features of the AES, as prescribed under Sections 6 and 7 of RA
9369.
Same; Same; Judicial Review; Judicial Restraint; The Court has to exercise
judicial restraint and not pretend to be an expert in something it is not really
familiar withits function is merely to decide if automation and its implementing
contract(s) are legal or not, not to find fault in it and certainly, not to determine to
what extent the law should be or should not be implemented.It has not been
satisfactorily shown that the Advisory Council and the Technical Evaluation
Committee have shirked their duties. They have not even been given the chance
to perform them yet they are already being torpedoed. At this point, the Court
should not even attempt to interfere in the work of these specialized bodies and
arrogate their functions by deciding highly technical issues that are within their
expertise and knowledge, and which the law itself has assigned to them for
determination. The Court has to exercise judicial restraint and not pretend to be
an expert in something it is not really familiar with. Our function is merely to
decide if automation and its implementing contract(s) are legal or not. It is not to
find fault in it and certainly, not to determine to what extent the law should be or
should not be implemented. After a half century of electoral debacle, there looms
in the horizon the dawn of a truly honest, systematic and modern electoral
system. But we have to cast our fears and insecurities aside, and take the first
stepunsure as it may beto witness its coming.
Same; Same; Same; No worst-case scenarios painted by doomsayers, no
speculative political catastrophe should be the basis of invalidating the Comelecs
official actsonly when the exercise by the Comelec of its discretion is done with
grave abuse will this Court nullify the challenged discretionary act.Congress
has vested the Comelec with the authority to modernize the Philippine electoral
system through the adoption of an AES. In the exercise of the said authority and
considering the nature of the office of the Comelec as an independent
constitutional body specifically tasked to enforce and administer all laws relative
to the conduct of elections, the Comelec enjoys wide latitude in carrying out its
mandate. No worst-case scenarios painted by doomsayers, no speculative
political catastrophe should be the basis of invalidating the Comelecs official
acts. Only when the exercise by the Comelec of its discretion is done with grave
abuse will this Court nullify the challenged discretionary act. Otherwise, the
institutional independence of the Comelec will be unduly restricted and eroded,
and its constitutional and statutory prerogatives encroached upon. This Court
should not allow that in any situation. This Court should not allow that in this
case. Let us welcome the significant change in our electoral system that is the
automated election system. The future is upon us. It beckons as it poses the
challenge of spurring technological innovation and safeguarding values like
accuracy and transparency in our electoral system. Let us not turn our backs on
it simply out of speculation and fear. Let us give it a chance.
BRION,J., Dissenting Opinion:
Election Law; Automated Election System; Judicial Review; The Commission on
Elections (COMELEC) reigns supreme in determining how automation shall be
phased in, how it shall affect all aspects of our electoral exercise, and how it shall
operate, subject only to our intervention when our own constitutional duty calls
for enforcement.The automation question now before us, like any other
COMELEC administration and enforcement matter, is a concern that COMELEC
is entitled by law to handle on its own without any interference from any outside
agency, not even from this Court, except pursuant to the allocation of powers that
the Constitution has mandated. In other words, the COMELEC reigns supreme in
determining how automation shall be phased in, how it shall affect all aspects of
our electoral exercise, and how it shall operate, subject only to our intervention
when our own constitutional duty calls for enforcement. Specifically, we cannot
close our eyes when a grave abuse of discretion amounting to lack or excess of
jurisdiction has been committed, such as when the COMELEC acts outside the
contemplation of the Constitution and of the law. Consistent with this view, I do
not aim to question the bidding the COMELEC undertook and its compliance with
our automation lawsRepublic Act (RA) Nos. 8436 and 9369in the absence of
any violation sufficiently gross to amount to the proscribed grave abuse of
discretion amounting to lack or excess of jurisdiction. My focus, rather, is on the
gut issues that really strike at the heart of the right of suffrage and place the
integrity of our electoral process at risk.
Same; Same; The Commission on Elections (COMELEC), contrary to the
Constitution and the law, now shares automation responsibilities with
SMARTMATIC-TIM under their Automation Contract.Despite the above
conclusion, I still take exception to the present implementation of election
automation, as it involves another more fundamental violation: the COMELEC,
contrary to the Constitution and the law, now shares automation responsibilities
with SMARTMATIC-TIM under their Automation Contract. In my view, this is a
violation that transgresses the Constitution, at the same time that it is an action
plainly outside the contemplation of the law. Based on this characterization, this
sharing of responsibility over automation is a grave abuse of discretion on the
part of the COMELEC that calls for the active intervention of this Court, pursuant
to the second paragraph of Section 1, Article VIII of the Constitution. I take this
view in light of Section 2, Article IX-C of the Constitution that commands the
COMELEC to enforce and administer all laws and regulations relative to the
conduct of an election and thereby gives the COMELEC sole authority to
undertake enforcement and administrative actions in the conduct of elections.
Same; Same; Under Section 26 of Republic Act No. 8436, the mandate of the
law is clearthe operative word used is exclusive, which means that the
automation responsibility given to the Commission on Elections (COMELEC)
cannot be shared with any other entity.Under Section 26, the mandate of the
law is clearthe operative word used is exclusive,which means that the
automation responsibility given to the COMELEC cannot be shared with any
other entity. Specifically, it means that the COMELEC, through its ITD, shall have
full and exclusive control over the entire process of voting, counting,
transmission, consolidation and canvassing of votes, including their performance
and completion and the final results. No special interpretative skill is necessary to
appreciate the meaning of exclusive. Supervision and control, on the other
hand, are terms that have practically attained technical legal meaning from
jurisprudence. Control as the established cases signify means to exercise
restraining or directing influence over; to dominate, regulate; hence, to hold from
action; to curb; to subject; also to overpower. In any interpretation of Section 26,
these are key terms and the standards that should predominate in determining
whether this Section has been complied with. The ponencia, unfortunately does
not appear to have considered this Section at all.
Same; Same; What exists is not the exclusive supervision and control of the
automation process by the Commission on Elections (COMELEC), but a shared
responsibility between the contracting parties to achieve this end.Based on all
these considerations drawn from the RFP and the Automation Contract, I cannot
escape the conclusion that what exists is not the exclusive supervision and
control of the automation process by the COMLEC, but a shared responsibility
between the contracting parties to achieve this end. To point out the obvious,
SMARTMATIC-TIM takes care of project management, with the PMO relegated
to the blurry role of overseeing the Projects execution and implementation and
with no other clearly defined role in the automation project. ITD does not even
exist insofar as the project documents are concerned. Thus, while the COMELEC
retains its traditional role with respect to the running of the election itself, a new
election process is in place that is substantially affected by automation. Stated
otherwise, while the COMELEC truly controls the BEI, the BOC, and the
administrative and adjudicative staff attending to the election process, the voters
themselves, and even the BEI and the BOC, must yield to the process that
automation calls for, which process is essentially technical and is in the hands of
SMARTMATIC-TIM, the provider who wholly supplies the hardware and the
software that controls the voting, counting, canvassing, consolidation and
transmission of results, and who expressly has control and custody over the
election equipment to be used in the voting, with no reserve power whatsoever
on the part of the COMELEC in this regard. Not to be forgotten is that
SMARTMATIC-TIM also provides the necessary services that run across voting,
counting, canvassing, consolidation and transmission activities. These
arrangements, viewed from all sides, does not indicate an exclusive supervision
and control situation over the automation process. To be exact, they involve
shared responsibilities that, however practical they may be from the business
and technical perspectives, are arrangements that Philippine law does not allow.
Same; Same; Commission on Elections (COMELEC); By placing solely in the
hands of SMARTMATIC-TIM the discretion to assign the digital signatures, the
Commission on Elections (COMELEC) has effectively surrendered control of the
May 10, 2010 elections and violated its constitutional mandate to administer the
conduct of elections in the country.The digital signatures are crucial since
Section 22 of the RA No. 8436 as amended provides that the election returns
transmitted electronically and digitally signed shall be considered as official
election results and shall be used as the basis for the canvassing of votes and
the proclamation of a candidate. Thus, by placing solely in the hands of
SMARTMATIC-TIM the discretion to assign the digital signatures, the
COMELEC has effectively surrendered control of the May 10, 2010 elections and
violated its constitutional mandate to administer the conduct of elections in the
country. Significantly, even the counsel for SMARTMATIC-TIM admitted during
the oral arguments that the COMELEC should not have given to SMARTMATIC-
TIM the possession and control of the public and private keys.
Same; Same; To be wary of giving control of the critical elements of our election
process to an entity other than the Commission on Elections (COMELEC) cannot
and should not be regarded as an unhealthy skepticism that we should shy away
fromwariness should be our mindset, particularly on legal matters bearing on
elections and their automation, given the constitutional and legal guidelines that
foist on us the standard of a fair, clean, honest and credible election.Section 26
clearly provides that the ITD shall have exclusive supervision and control of the
AES and shall carry out the full administration and implementation of the system.
To fully implement this statutory requirement, the COMELEC should have
stipulated in the automation contract that it is the ITD, and not SMARTMATIC-
TIM, that should be made in charge of the technical aspects of the automated
May 10, 2010 elections, consistent with its constitutional mandate as well as
Section 26 of RA No. 8436. Under the present contract, the exclusive supervision
and control over the AES that the law in its wisdom has put in place, has simply
been negated. To be wary of giving control of the critical elements of our election
process to an entity other than the COMELEC cannot and should not be
regarded as an unhealthy skepticism that we should shy away from. On the
contrary, wariness should be our mindset, particularly on legal matters bearing on
elections and their automation, given the constitutional and legal guidelines that
foist on us the standard of a fair, clean, honest and credible election. We must be
wary, too, because we are not wanting in warnings from those who have waded
ahead of us into the waters of automation.
VELASCO, JR., J.:
In a democratic system of government, the peoples voice is sovereign.
Corollarily, choosing through the ballots the men and women who are to govern
the country is perhaps the highest exercise of democracy. It is thus the interest of
the state to insure honest, credible and peaceful elections, where the sanctity of
the votes and the secrecy of the ballots are safeguarded, where the will of the
electorate is not frustrated or undermined. For when the popular will itself is
subverted by election irregularities, then the insidious seeds of doubt are sown
and the ideal of a peaceful and smooth transition of power is placed in jeopardy.
To automate, thus breaking away from a manual system of election, has been
viewed as a significant step towards clean and credible elections, unfettered by
the travails of the long wait and cheating that have marked many of our electoral
exercises.
The Commission on Elections (Comelec), private respondents, the National
Computer Center and other computer wizards are confident that nationwide
automated elections can be successfully implemented. Petitioners and some
skeptics in the information technology (IT) industry have, however, their
reservations, which is quite understandable. To them, the automated election
system and the untested technology Comelec has chosen and set in motion are
pregnant with risks and could lead to a disastrous failure of elections. Comelec,
they allege, would not be up to the challenge. Cheating on a massive scale, but
this time facilitated by a machine, is perceived to be a real possibility.
In this petition for certiorari, prohibition and mandamus with prayer for a
restraining order and/or preliminary injunction, petitioners H. Harry L. Roque,
Jr., et al., suing as taxpayers and concerned citizens, seek to nullify respondent
Comelecs award of the 2010 Elections Automation Project (automation project)
to the joint venture of Total Information Management Corporation (TIM) and
Smartmatic International Corporation (Smartmatic)1 and to permanently prohibit
the Comelec, TIM and Smartmatic from signing and/or implementing the
corresponding contract-award.
By Resolution2 of July 14, 2009, the Court directed the respondents as well as
the University of the Philippines (UP) Computer Center, National Computer
Center (NCC) and Information Technology Foundation of the Philippines
(Infotech, hereinafter) to submit their collective or separate comments to the
petition on or before July 24, 2009. Before any of the comments could actually be
filed, Atty. Pete Quirino-Quadra sought leave to intervene. In another resolution,
the Court allowed the intervention and admitted the corresponding petition-in-
intervention.3
On July 29, 2009, the Court heard the principal parties in oral arguments which
was followed by the submission of their and the resource persons instructive,
albeit clashing, memoranda. The Senate, through the Senate President, would
later join the fray via a Motion for Leave to Intervene. In a Resolution of August
25, 2009, the Court admitted the Senates comment-in-intervention.
From the petition, the separate comments thereon, with their respective annexes,
and other pleadings, as well as from admissions during the oral arguments, the
Court gathers the following facts:
On December 22, 1997, Congress enacted Republic Act No. (RA) 8436
authorizing the adoption of an automated election system (AES) in the May 11,
1998 national and local elections and onwards. The 1998, 2001, and 2004
national and local polls, however, came and went but purely manual elections
were still the order of the day. On January 23, 2007, the amendatory RA
93694 was passed authorizing anew the Comelec to use an AES. Of particular
relevance are Sections 6 and 10 of RA 9369originally Secs. 5 and 8,
respectively of RA 8436, as amendedeach defining Comelecs specific project.23 Meanwhile, Congress enacted RA 9525 appropriating some PhP 11.3
mandates insofar as automated elections are concerned. The AES was not
utilized in the May 10, 2000 elections, as funds were not appropriated for that
purpose by Congress and due to time constraints.
RA 9369 calls for the creation of the Comelec Advisory Council5 (CAC). CAC is to
recommend, among other functions, the most appropriate, applicable and cost-
effective technology to be applied to the AES.6 To be created by Comelec too is
the Technical Evaluation Committee (TEC)7 which is tasked to certify, through an
established international certification committee, not later than three months
before the elections, by categorically stating that the AES, inclusive of its
hardware and software components, is operating properly and accurately based
on defined and documented standards.8
In August 2008, Comelec managed to automate the regional polls in the
Autonomous Region of Muslim Mindanao9 (ARMM), using direct recording
electronics (DRE) technology10 in the province of Maguindanao; and the optical
mark reader/recording (OMR) system, particularly the Central Count Optical
Scan (CCOS),11 in the rest of ARMM.12 What scores hailed as successful
automated ARMM 2008 elections paved the way for Comelec, with some
prodding from senators,13 to prepare for a nationwide computerized run for the
2010 national/local polls, with the many lessons learned from the ARMM
experience influencing, according to the NCC, the technology selection for the
2010 automated elections.14
Accordingly, in early March 2009, the Comelec released the Request for
Proposal (RFP), also known as Terms of Reference (TOR), for the nationwide
automation of the voting, counting, transmission, consolidation and canvassing of
votes for the May 10, 2010 Synchronized National and Local Elections. What is
referred to also in the RFP and other contract documents as the 2010 Elections
Automation Project (Automation Project) consists of three elaborate components,
as follows:
Component 1: Paper-Based AES.15 1-A. Election Management System
(EMS); 1-B Precinct-Count Optic Scan (PCOS) 16 System and 1-C.
Consolidation/Canvassing System (CCS);
Component 2: Provision for Electronic Transmission of Election Results
using Public Telecommunications Network; and
Component 3: Overall Project Management
And obviously to address the possibility of systems failure, the RFP required
interested bidders to submit, among other things: a continuity plan17 and a back-
up plan. 18
Under the two-envelope system designed under the RFP,19 each participating
bidder shall submit, as part of its bid, an Eligibility Envelope 20 that should inter
alia establish the bidders eligibility to bid. On the other hand, the second
envelope, or the Bid Envelope itself, shall contain two envelopes that, in turn,
shall contain the technical proposal and the financial proposal, respectively.21
Subsequently, the Comelec Special Bids and Awards Committee (SBAC), earlier
constituted purposely for the aforesaid project, caused the publication in different
newspapers of the Invitation to Apply for Eligibility and to Bid22 for the
procurement of goods and services to be used in the automation
billion as supplemental budget for the May 10, 2010 automated national and local
elections.
Of the ten (10) invitation-responding consortia which obtained the bid documents,
only seven (7) submitted sealed applications for eligibility and bids 24 which, per
Bid Bulletin No. 24, were to be opened on a pre-set date, following the convening
of the pre-bid conference. Under the RFP, among those eligible to participate in
the bidding are manufacturers, suppliers and/or distributors forming themselves
into a joint venture. A joint venture is defined as a group of two or more
manufacturers, suppliers and/or distributors that intend to be jointly and severally
responsible or liable for a particular contract.25
Among the submitted bids was that of the joint venture (JV) of TIM and
Smartmatic, the former incorporated under the Corporation Code of the
Philippines. Smartmatic, on the other hand, was organized under the laws of
Barbados.26 For a stated amount, said JV proposed to undertake the whole
automation project, inclusive of the delivery of 82,200 PCOS machines. After the
conclusion of the eligibility evaluation process, only three consortia 27 were found
and thus declared as eligible. Further on, following the opening of the passing
bidders Bid Envelope and evaluating the technical and financial proposals
therein contained, the SBAC, per its Res. No. 09-001, s.-2009, declared the
above-stated bid of the JV of TIM-Smartmatic as the single complying calculated
bid.28As required by the RFP, the bid envelope contained an outline of the joint
ventures back-up and continuity or contingency plans, 29 in case of a systems
breakdown or any such eventuality which shall result in the delay, obstruction or
nonperformance of the electoral process.
After declaring TIM-Smartmatic as the best complying bidder, the SBAC then
directed the joint venture to undertake post-qualification screening, and its PCOS
prototype machinesthe Smarmatic Auditable Electronic System (SAES)
1800to undergo end-to-end30 testing to determine compliance with the pre-set
criteria.
In its Memorandum of June 01, 2009, on the Subject: Systems Evaluation
Consolidated Report and Status Report on the Post-Qualification Evaluation
Procedures, the SBAC Technical Working Group (TWG) stated that it was
undertaking a 4-day (May 27 to May 30, 2009) test evaluation of TIM and
Smartmatics proposed PCOS project machines. Its conclusion: "The demo
systems presented PASSED all tests as required in the 26-item criteria specified
in the [RFP]" with 100% accuracy rating.31 The TWG also validated the eligibility,
and technical and financial qualifications of the TIM-Smartmatic joint venture.
On June 9, 2009, Comelec, upon the recommendation of its SBAC, the CAC and
other stakeholders, issued Resolution No. (Res.) 8608 32 authorizing the SBAC to
issue, subject to well-defined conditions, the notice of award and notice to
proceed in favor of the winning joint venture.
Soon after, TIM wrote Comelec expressing its desire to quit the JV partnership. In
time, however, the parties were able to patch up what TIM earlier described as
irreconcilable differences between partners.
What followed was that TIM and Smartmatic, pursuant to the Joint Venture
Agreement (JVA),33 caused the incorporation of a joint venture corporation (JVC)
that would enter into a contract with the Comelec. On July 8, 2009, the Securities
and Exchange Commission issued a certificate of incorporation in favor of
Smartmatic TIM Corporation. Two days after, or on July 10, 2009, Comelec and
Smartmatic TIM Corporation, as provider, executed a contract 34 for the lease of
goods and services under the contract for the contract amount of PhP
7,191,484,739.48, payable as the "Goods and Services are delivered and/or
progress is made in accordance [with pre-set] Schedule of Payments." 35 On the
same date, a Notice to Proceed36 was sent to, and received by, Smartmatic TIM
Corporation.
Meanwhile, or on July 9, 2009, petitioners interposed the instant recourse which,
for all intents and purposes, impugns the validity and seeks to nullify the July 10,
2009 Comelec-Smartmatic-TIM Corporation automation contract adverted to.
Among others, petitioners pray that respondents be permanently enjoined from
implementing the automation project on the submission that:
PUBLIC RESPONDENTS COMELEC AND COMELEC-SBAC COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN AWARDING THE 2010 ELECTIONS AUTOMATION
PROJECT TO PRIVATE RESPONDENTS TIM AND SMARTMATIC FOR THE
FOLLOWING REASONS:
x x x COMELEC DID NOT CONDUCT ANY PILOT TESTING OF THE x x x
PCOS MACHINES OFFERED BY PRIVATE RESPONDENTS SMARTMATIC
AND TIM, IN VIOLATION OF [RA] 8436 (AS AMENDED BY [RA] 9369)
THE [PCOS] MACHINES [THUS] OFFERED BY PRIVATE RESPONDENTS x x
x DO NOT SATISFY THE MINIMUM SYSTEM CAPABILITIES SET BY [RA] NO.
8436 (AS AMENDED BY [RA] 9369).
PRIVATE RESPONDENTS x x x DID NOT SUBMIT THE REQUIRED
DOCUMENTS DURING THE BIDDING PROCESS THAT SHOULD ESTABLISH
THE DUE EXISTENCE, COMPOSITION, AND SCOPE OF THEIR JOINT
VENTURE, IN VIOLATION OF THE SUPREME COURTS HOLDING
IN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, vs.
COMELEC (G.R. No. 159139, Jan. 13, 2004).
THERE WAS NO VALID JOINT VENTURE AGREEMENT [JVA] BETWEEN
PRIVATE RESPONDENTS SMARTMATIC AND TIM DURING THE BIDDING, IN
VIOLATION OF THE SUPREME COURTS HOLDING IN INFORMATION
TECHNOLOGY FOUNDATION OF THE PHILIPPINES vs. COMELEC x x x
WHICH REQUIRES A JOINT VENTURE TO INCLUDE A COPY OF ITS [JVA]
DURING THE BIDDING.
THE ALLEGED JOINT VENTURE COMPOSED OF PRIVATE RESPONDENTS
SMARTMATIC AND TIM, DOES NOT SATISFY THE SUPREME COURTS
DEFINITION OF A "JOINT VENTURE" IN INFORMATION TECHNOLOGY
FOUNDATION OF THE PHILIPPINES vs. COMELEC x x x WHICH "REQUIRES
A COMMUNITY OF INTEREST IN THE PERFORMANCE OF THE SUBJECT
MATTER."
Filed as it was before contract signing, the petition understandably did not
implead Smartmatic TIM Corporation, doubtless an indispensable party to these
proceedings, an incident that did not escape Comelecs notice. 37
As a preliminary counterpoint, either or both public and private respondents
question the legal standing or locus standi of petitioners, noting in this regard that
the petition did not even raise an issue of transcendental importance, let alone a
constitutional question.
As an additional point, respondents also urge the dismissal of the petition on the
ground of prematurity, petitioners having failed to avail themselves of the
otherwise mandatory built-in grievance mechanism under Sec. 55 in relation to
Sec. 58 of RA 9184, also known as the Government Procurement Reform Act, as
shall be discussed shortly.
PROCEDURAL GROUNDS
The Court is not disposed to dismiss the petition on procedural grounds
advanced by respondents.
Locus Standi and Prematurity
It is true, as postulated, that to have standing, one must, as a rule, establish
having suffered some actual or threatened injury as a result of the alleged illegal
government conduct; that the injury is fairly traceable to the challenged action;
and that the injury is likely to be redressed by a favorable action. 38 The
prescription on standing, however, is a matter of procedure. Hence, it may be
relaxed, as the Court has often relaxed the rule for non-traditional plaintiffs, like
ordinary citizens and taxpayers, when the public interest so requires, such as
when the matter is of transcendental importance, of overarching significance to
society, or of paramount public interest.39 As we wrote in Chavez v.
PCGG,40 where issues of public importance are presented, there is no necessity
to show that the suitor has experienced or is in actual danger of suffering direct
and personal injury as the requisite injury is assumed.
Petitioners counsel, when queried, hedged on what specific constitutional
proscriptions or concepts had been infringed by the award of the subject
automation project to Smartmatic TIM Corporation, although he was heard to say
that "our objection to the system is anchored on the Constitution itself a violation
[sic] of secrecy of voting and the sanctity of the ballot." 41 Petitioners also depicted
the covering automation contract as constituting an abdication by the Comelec of
its election-related mandate under the Constitution, which is to enforce and
administer all laws relative to the conduct of elections. Worse still, according to
the petitioners, the abdication, with its anti-dummy dimension, is in favor of a
foreign corporation that will be providing the hardware and software
requirements.42 And when pressed further, petitioners came out with the
observation that, owing in part to the sheer length of the ballot, the PCOS would
not comply with Art. V, Sec. 2 of the Constitution43 prescribing secrecy of voting
and sanctity of the ballot.44
There is no doubt in our mind, however, about the compelling significance and
the transcending public importance of the one issue underpinning this petition:
the successand the far-reaching grim implications of the failureof the
nationwide automation project that will be implemented via the challenged
automation contract.
The doctrinal formulation may vary, but the bottom line is that the Court may
except a particular case from the operations of its rules when the demands of
justice so require.45 Put a bit differently, rules of procedure are merely tools
designed to facilitate the attainment of justice.46 Accordingly, technicalities and
procedural barriers should not be allowed to stand in the way, if the ends of
justice would not be subserved by a rigid adherence to the rules of
procedure.47 This postulate on procedural technicalities applies to matters
of locus standi and the presently invoked principle of hierarchy of courts, which
discourages direct resort to the Court if the desired redress is within the
competence of lower courts to grant. The policy on the hierarchy of courts, which
petitioners indeed failed to observe, is not an iron-clad rule. For indeed the Court
has full discretionary power to take cognizance and assume jurisdiction of special
civil actions for certiorari and mandamus filed directly with it for exceptionally
compelling reasons48 or if warranted by the nature of the issues clearly and
specifically raised in the petition.49
The exceptions that justify a deviation from the policy on hierarchy appear to
obtain under the premises. The Court will for the nonce thus turn a blind eye to
the judicial structure intended, first and foremost, to provide an orderly
dispensation of justice.
Hierarchy of Courts
At this stage, we shall dispose of another peripheral issue before plunging into
the core substantive issues tendered in this petition.
Respondents contend that petitioners should have availed themselves of the
otherwise mandatory protest mechanism set forth in Sections 55 and 58 of the
procurement law (RA 9184) and the counterpart provisions found in its
Implementing Rules and Regulations (IRR)-A before seeking judicial remedy.
Insofar as relevant, Sec. 55 of RA 9184 provides that decisions of the bids and
awards committee (BAC) in all stages of procurement may be protested, via a
"verified position paper," to the head of the procuring agency. On the other hand,
the succeeding Sec. 58 states that court action may be resorted to only after the
protest contemplated in Sec. 55 shall have been completed. Petitioners except.
As argued, the requirement to comply with the protest mechanism, contrary to
what may have been suggested in Infotech, is imposed on the bidders. 50
Petitioners position is correct. As a matter of common sense, only a bidder is
entitled to receive a notice of the protested BAC action. Only a losing bidder
would be aggrieved by, and ergo would have the personality to challenge, such
action. This conclusion finds adequate support from the ensuing provisions of the
aforesaid IRR-A:
55.2. The verified position paper shall contain the following documents:
a) The name of bidder;
b) The office address of the bidder x x x.
SUBSTANTIVE ISSUES
We now turn to the central issues tendered in the petition which, in terms of
subject matter, revolved around two concerns, viz: (1) the Joint Venture
Agreement (JVA) of Smartmatic and TIM; and (2) the PCOS machines to be
used. Petitioners veritably introduced another issue during the oral arguments, as
amplified in their memorandum, i.e. the constitutionality and statutory flaw of the
automation contract itself. The petition-in-intervention confined itself to certain
features of the PCOS machines.
The Joint Venture Agreement: Its Existence and Submission
The issue respecting the existence and submission of the TIM-Smartmatic JVA
does not require an extended disquisition, as repairing to the records would
readily provide a satisfactory answer. We note in fact that the petitioners do not
appear to be earnestly pressing the said issue anymore, as demonstrated by
their counsels practically cavalier discussion thereof during the oral argument.
When reminded, for instance, of private respondents insistence on having in fact
submitted their JVA dated April 23, 2009, petitioners counsel responded as
follows: "We knew your honor that there was, in fact, a joint venture agreement
filed. However, because of the belated discovery that [there] were irreconcilable
differences, we then made a view that this joint venture agreement was a sham,
at best pro forma because it did not contain all the required stipulations in order
to evidence unity of interest x x x."51
Indeed, the records belie petitioners initial posture that TIM and Smartmatic, as
joint venture partners, did not include in their submitted eligibility envelope a copy
of their JVA. The SBACs Post Qualification Evaluation Report (Eligibility) on TIM-
Smartmatic, on page 10, shows the following entry: "Valid Joint Venture
Agreement, stating among things, that the members are jointly and severally
liable for the whole obligation, in case of joint venture Documents verified
compliance."52
Contrary to what the petitioners posit, the duly notarized JVA, as couched,
explained the nature and the limited purpose53 of the joint venture and expressly
defined, among other things, the composition, scope, and the 60-40 capital
structure of the aggroupment.54 The JVA also contains provisions on the
management55 and division of profits.56 Article 357 of the JVA delineates the
respective participations and responsibilities of the joint venture partners in the
automation project.
Given the foregoing perspective, the Court is at a loss to understand how
petitioners can assert that the Smartmatic-TIM consortium has failed to prove its
joint venture existence and/or to submit evidence as would enable the Comelec
to know such items as who it is dealing with, which between the partners has
control over the decision-making process, the amount of investment to be
contributed by each partner, the parties shares in the profits and like details. Had
petitioners only bothered to undertake the usual due diligence that comes with
good judgment and examined the eligibility envelope of the Smartmatic-TIM joint
venture, they would have discovered that their challenge to and arguments
against the joint venture and its JVA have really no factual basis.
It may be, as petitioners observed, that the TIM-Smartmatic joint venture
remained an unincorporated aggroupment during the bid-opening and evaluation
stages. It ought to be stressed, however, that the fact of non-incorporation was
without a vitiating effect on the validity of the tender offers. For the bidding
ground rules, as spelled out primarily in the RFP and the clarificatory bid
bulletins, does not require, for bidding purposes, that there be an incorporation of
the bidding joint ventures or consortiums. In fact, Bid Bulletin Nos. 19 and 20
recognize the existence and the acceptability of proposals of unincorporated joint
ventures. In response to a poser, for example, regarding the 60% Filipino
ownership requirement in a joint venture arrangement, the SBAC, in its Bid
Bulletin No. 22, stated: "In an unincorporated joint venture, determination of
the required Filipino participation may be made by examining the terms and
conditions of the [JVA] and other supporting financial documents submitted by
the joint venture." (Emphasis ours.) Petitioners, to be sure, have not shown that
incorporation is part of the pass/fail criteria used in determining eligibility.
Petitioners have made much of the Courts ruling in Information Technology
Foundation of the Philippines [Infotech] v. Comelec,58 arguing in relation thereto
that the partnership of Smartmatic and TIM does not meet the Courts definition
of a joint venture which requires "community of interest in the performance of the
subject matter."
Petitioners invocation of Infotech is utterly misplaced. Albeit Infotech and this
case are both about modernizing the election process and bidding joint ventures,
the relevant parallelism ends there. Cast as they are against dissimilar factual
milieu, one cannot plausibly set Infotech side with and contextually apply to this
case the ratio of Infotech. Suffice it to delve on the most glaring of differences. In
Infotech, the winning bid pertained to the consortium of Mega Pacific, a purported
joint venture. Extant records, however, do not show the formation of such joint
venture, let alone its composition. To borrow from the ponencia of then Justice,
later Chief Justice, Artemio Panganiban, "there is no sign whatsoever of any
[JVA], consortium agreement [or] memorandum agreement x x x executed
among the members of the purported consortium." 59 There was in fine no
evidence to show that the alleged joint venture partners agreed to constitute
themselves into a single entity solidarily responsible for the entirety of the
automation contract. Unlike the purported Mega Pacific consortium in Infotech,
the existence in this case of the bidding joint venture of Smarmatic and TIM is
properly documented and spread all over the bid documents. And to stress, TIM
and Smartmatic, in their JVA, unequivocally agreed between themselves to
perform their respective undertakings. And over and beyond their commitments
to each other, they undertook to incorporate, if called for by the bidding results, a
JVC that shall be solidarily liable with them for any actionable breach of the
automation contract.
In Infotech, the Court chastised the Comelec for dealing with an entity, the full
identity of which the poll body knew nothing about. Taking a cue from this
holding, petitioners tag the TIM-Smartmatic JVA as flawed and as one that would
leave the Comelec "hanging" for the non-inclusion, as members of the joint
venture, of three IT providers. The three referred to are Jarltech International, Inc.
(Jarltech), a subsidiary of Smartmatic that manufactures the Smartmatic voting
machines; Dominion Voting Systems (Domino), the inventor of said PCOS
machines; and 2GO Transportation System Corporation (2GO), the
subcontractor responsible for the distribution of the PCOS machines throughout
the country.
Petitioners beef against the TIM-Smartmatic JVA is untenable. First off, the
Comelec knows the very entities whom they are dealing with, which it can hold
solidary liable under the automation contract, should there be contract violation.
Secondly, there is no requirement under either RA 8436, as amended, or the
RFP, that all the suppliers, manufacturers or distributors involved in the
transaction should be part of the joint venture. On the contrary, the Instruction to
Biddersas petitioners themselves admit60allows the bidder to subcontract
portions of the goods or services under the automation project. 61
To digress a bit, petitioners have insisted on the non-existence of a bona fide JVA
between TIM and Smarmatic. Failing to gain traction for their indefensible
posture, they would thrust on the Court the notion of an invalid joint venture due
to the non-inclusion of more companies in the existing TIM-Smartmatic joint
venture. The irony is not lost on the Court.
This brings us to the twin technical issues tendered herein bearing on the PCOS
machines of Smartmatic.
At its most basic, the petition ascribes grave abuse of discretion to the Comelec
for, among other things, awarding the automation project in violation of RA 8436,
as amended. Following their line, no pilot test of the PCOS technology
Smartmatic-TIM offered has been undertaken; hence, the Comelec cannot
conduct a nationwide automation of the 2010 polls using the machines thus
offered. Hence, the contract award to Smartmatic-TIM with their untested PCOS
machines violated RA 8436, as amended by RA 9369, which mandates that with
respect to the May 2010 elections and onwards, the system procured must have
been piloted in at least 12 areas referred to in Sec. 6 of RA 8436, as amended.
What is more, petitioners assert, private respondents PCOS machines do not
satisfy the minimum system capabilities set by the same law envisaged to ensure
transparent and credible voting, counting and canvassing of votes. And as earlier
narrated, petitioners would subsequently add the abdication angle in their bid to
nullify the automation contract.
Pilot Testing Not Necessary
Disagreeing, as to be expected, private respondents maintain that there is
nothing in the applicable law requiring, as a pre-requisite for the 2010 election
automation project award, that the prevailing bidders automation system, the
PCOS in this case, be subjected to pilot testing. Comelec echoes its co-
respondents stance on pilot testing, with the added observation that nowhere in
the statutory provision relied upon are the words "pilot testing" used. 62 The
Senates position and its supporting arguments match those of private
respondents.
The respondents thesis on pilot testing and the logic holding it together are well
taken. There can be no argument about the phrase "pilot test" not being found in
the law. But does it necessarily follow that a pilot test is absolutely not
contemplated in the law? We repair to the statutory provision petitioners cited as
requiring a pilot run, referring to Sec. 6 of RA 8436, as amended by RA 9369,
reading as follows:
Sec. 5. Authority to use an Automated Election System.- To carry out the above
stated-policy, the [Comelec], x x x is hereby authorized to use an automated
election system or systems in the same election in different provinces, whether
paper-based or a direct recording electronic election system as it may deem
appropriate and practical for the process of voting, counting of votes and
canvassing/consolidation and transmittal of results of electoral
exercises: Provided, that for the regular national and local elections, which shall
be held immediately after the effectivity of this Act, the AES shall be used in at
least two highly urbanized cities and two provinces each in Luzon, Visayas, and
Mindanao to be chosen by the [Comelec]: Provided, further, That local
government units whose officials have been the subject of administrative charges
within sixteen (16) month prior to the May 14, 2007 elections shall not be
chosen. Provided, finally, That no area shall be chosen without the consent of the
Sanggunian of the local government unit concerned. The term local government
unit as used in this provision shall refer to a highly urbanized city or province. In
succeeding regular national or local elections, the AES shall be implemented.
(Emphasis and underscoring added.)
RA 9369, which envisages an AES, be it paper-based or direct-recording
electronic, took effect in the second week of February 2007 or thereabout. 63 The
"regular national and local elections" referred to after the "effectivity of this Act"
can be no other than the May 2007 regular elections, during which time the AES
shall, as the law is worded, be used in at least two highly urbanized cities and
provinces in Luzon, Visayas and Mindanao. The Court takes judicial notice that
the May 2007 elections did not deploy AES, evidently due to the mix of time and
funding constraints.
To the petitioners, the underscored portion of the aforequoted Sec. 6 of RA 8436
is the pilot-testing provision that Comelec failed to observe.
We are not persuaded.
From the practical viewpoint, the pilot testing of the technology in question in an
actual, scheduled electoral exercise under harsh conditions would have been the
ideal norm in computerized system implementation. The underscored proviso of
Sec. 6 of RA 8436 is not, however, an authority for the proposition that the pilot
testing of the PCOS in the 2007 national elections in the areas thus specified is
an absolute must for the machines use in the 2010 national/local elections. The
Court can concede that said proviso, with respect to the May 2007 elections,
commands the Comelec to automate in at least 12 defined areas of the country.
But the bottom line is that the required 2007 automation, be it viewed in the
concept of a pilot test or not, is not a mandatory requirement for the choice of
system in, or a prerequisite for, the full automation of the May 2010 elections.
As may be noted, Sec. 6 of RA 8436 may be broken into three essential parts,
the first partaking of the nature of a general policy declaration: that Comelec is
authorized to automate the entire elections. The second part states that for the
regular national and local elections that shall be held in May 2007, Comelec shall
use the AES, with an option, however, to undertake automation, regardless of the
technology to be selected, in a limited area or, to be more precise, in at least two
highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao
to be chosen by the Comelec. On the other hand, the last part, phrased sans
reference to the May 2007 elections, commands thus: "[I]n succeeding regular
national or local elections, the [automated election system] shall be
implemented." Taken in its proper context, the last part is indicative of the
legislative intent for the May 2010 electoral exercise to be fully automated,
regardless of whether or not pilot testing was run in the 2007 polls.
To argue that pilot testing is a condition precedent to a full automation in 2010
would doubtless undermine the purpose of RA 9369. For, as aptly observed
during the oral arguments, if there was no political exercise in May 2007, the
country would theoretically be barred forever from having full automation.
Sec. 6 of the amended RA 8436, as couched, therefore, unmistakably conveys
the idea of unconditional full automation in the 2010 elections. A construal
making pilot testing of the AES a prerequisite or condition sine qua non to putting
the system in operation in the 2010 elections is tantamount to reading into said
section something beyond the clear intention of Congress, as expressed in the
provision itself. We reproduce with approval the following excerpts from the
comment of the Senate itself:
The plain wordings of RA 9369 (that amended RA 8436) commands that the
2010 elections shall be fully automated, and such full automation is not
conditioned on "pilot testing" in the May 2007 elections. Congress merely gave
COMELEC the flexibility to partially use the AES in some parts of the country for
the May 2007 elections.64
Lest it be overlooked, an AES is not synonymous to and ought not to be
confused with the PCOS. Sec. 2(a) of RA 8436, as amended, defines an AES as
"a system using appropriate technology which has been demonstrated in the
voting, counting, consolidating, canvassing and transmission of election results,
and other electoral processes." On the other hand, PCOS refers to a technology
wherein an optical ballot scanner, into which optical scan paper ballots marked
by hand by the voter are inserted to be counted. 65 What may reasonably be
deduced from these definitions is that PCOS is merely one of several automated
voting, counting or canvassing technologies coming within the term AES,
implying in turn that the automated election system or technology that the
Comelec shall adopt in future elections need not, as a matter of mandatory
arrangement, be piloted in the adverted two highly urbanized cities and
provinces.
In perspective, what may be taken as mandatory prerequisite for the full
automation of the 2010 regular national/ local elections is that the system to be
procured for that exercise be a technology tested either here or abroad. The
ensuing Section 8 of RA 8436, as amended, says so.
SEC 12. Procurement of Equipment and Materials. To achieve the purpose of
this Act, the Commission is authorized to procure, xxx, by purchase, lease, rent
or other forms of acquisition, supplies, equipment, materials, software, facilities,
and other services, from local or foreign sources xxx. With respect to the May 10,
2010 elections and succeeding electoral exercises, the system procured must
have demonstrated capability and been successfully used in prior electoral
exercise here or abroad. Participation in the 2007 pilot exercise shall not be
conclusive of the systems fitness. (Emphasis supplied).
While the underscored portion makes reference to a "2007 pilot exercise," what it
really exacts is that, for the automation of the May 2010 and subsequent
elections, the PCOS or any AES to be procured must have demonstrated its
capability and success in either a local or a foreign electoral exercise. And as
expressly declared by the provision, participation in the 2007 electoral exercise is
not a guarantee nor is it conclusive of the systems fitness. In this regard, the
Court is inclined to agree with private respondents interpretation of the
underscored portion in question: "The provision clearly conveys that the [AES] to
be used in the 2010 elections need not have been used in the 2007 elections,
and that the demonstration of its capability need not be in a previous Philippine
election. Demonstration of the success and capability of the PCOS may be in an
electoral exercise in a foreign jurisdiction."66 As determined by the Comelec, the
PCOS system had been successfully deployed in previous electoral exercises in
foreign countries, such as Ontario, Canada; and New York, USA, 67 albeit
Smartmatic was not necessarily the system provider. But then, RA 9369 does not
call for the winning bidder of the 2010 automation project and the deploying
entity/provider in the foreign electoral exercise to be one and the same entity.
Neither does the law incidentally require that the system be first used in an
archipelagic country or with a topography or a voting population similar to or
approximating that of the Philippines.
At any event, any lingering doubt on the issue of whether or not full automation of
the 2010 regular elections can validly proceed without a pilot run of the AES
should be put to rest with the enactment in March 2009 of RA 9525, 68 in which
Congress appropriated PhP 11.301 billion to automate the 2010 elections,
subject to compliance with the transparency and accuracy requirements in
selecting the relevant technology of the machines, thus:
Sec. 2. Use of Funds. x x x Provided, however, That disbursement of the
amounts herein appropriated or any part thereof shall be authorized only in strict
compliance with the Constitution, the provisions of [RA] No. 9369 and other
election laws incorporated in said Act as to ensure the conduct of a free, orderly,
clean, honest and credible election and shall adopt such measures that will
guaranty transparency and accuracy in the selection of the relevant technology of
the machines to be used on May 10, 2010 automated national and local
elections. (Emphasis added.)
It may safely be assumed that Congress approved the bill that eventually
became RA 9525, fully aware that the system using the PCOS machines were
not piloted in the 2007 electoral exercise. The enactment of RA 9525 is to us a
compelling indication that it was never Congress intent to make the pilot testing
of a particular automated election system in the 2007 elections a condition
precedent to its use or award of the 2010 Automation Project. The comment-in-
intervention of the Senate says as much.
Further, the highly charged issue of whether or not the 2008 ARMM elections
covering, as NCC observed, three conflict-ridden island provincesmay be
treated as substantial compliance with the "pilot test" requirement must be
answered in the affirmative. No less than Senator Richard J. Gordon himself, the
author of the law, said that "the system has been tried and tested in the ARMM
elections last year, so we have to proceed with the total implementation of the
law."69
We note, though, the conflicting views of the NCC70 and ITFP71 on the matter.
Suffice it to state at this juncture that the system used in the 2008 ARMM election
exercise bears, as petitioners to an extent grudgingly admit, 72 a similarity with
the PCOS. The following, lifted from the Comelecs comment, is to us a fair
description of how the two systems (PCOS and CCOS) work and where the
difference lies:
xxx the elections in the [ARMM] utilized the Counting Center Optical Scan
(CCOS), a system which uses the Optical Mark Reader (OMR), the same
technology as the PCOS.
Under the CCOS, the voters cast their votes by shading or marking the circles in
the paper ballots which corresponded to the names of their chosen candidates
[like in PCOS]. Thereafter, the ballot boxes were brought to the counting centers
where they were scanned, counted and canvassed.
xxx Under the PCOS, the counting, consolidation and canvassing of the votes
are done at the precinct level. The election results at the precincts are then
electronically transmitted to the next level, and so on. xxx PCOS dispenses with
the physical transportation of ballot boxes from the precincts to the counting
centers.73
Moreover, it has been proposed that a partial automation be implemented for the
May 2010 elections in accordance with Section 5 of RA 8436, as amended by RA
9369 instead of full automation. The Court cannot agree as such proposition has
no basis in law. Section 5, as worded, does not allow for partial automation. In
fact, Section 5 clearly states that "the AES shall be implemented nationwide." 74 It
behooves this Court to follow the letter and intent of the law for full automation in
the May 2010 elections.
PCOS Meets Minimum Capabilities Standards
As another ground for the nullification of the automation contract, petitioners posit TIM/Smartmatics proposed systems and machines PASSED all the end-to-end
the view that the PCOS machines do not satisfy the minimum system capabilities demo tests using the aforementioned 26-item criteria, inclusive of the accuracy
prescribed by RA 8436, as amended. To a specific point, they suggest that the rating test of at least 99.955%. As appearing in the SBAC-TWG report, the
PCOS system offered and accepted lacks the features that would assure corresponding answers/remarks to each of the 26 individual items are as herein
accuracy in the recording and reading of votes, as well as in the tabulation, indicated:79
consolidation/canvassing, electronic transmission, storage results and accurate REQUIREMENT REMARK/DESCRIPTION
ballot counting.75 In this particular regard, petitioners allege that, based on
Smartmatics website, the PCOS has a margin of error of from 2% to 10%, way Does the system allow manual Yes. The proposed PCOS machine
beyond that of the required 99.99% accuracy in the counting of votes. 76 feeding of a ballot into the accepted the test ballots which were
The minimum system capabilities provision cited is Sec. 7 of RA 8436, as PCOS machine? manually fed one at a time.
amended, and the missing features referred to by petitioners are pars. (b) and (j).
In full, Sec. 7 of RA 8436, as amended, reads: Does the system scan a ballot Yes. A 30-inch ballot was used in this test.
SEC. 6. Minimum System Capabilities. - The automated election system must at sheet at the speed of at least Scanning the 30-inch ballot took 2.7
least have the following functional capabilities: 2.75 inches per second? seconds, which translated to 11.11inches
(a) Adequate security against unauthorized access; per second.
(b) Accuracy in recording and reading of votes as well as in the Is the system able to capture Yes the system captured the images of the
tabulation, consolidation/canvassing, electronic transmission, and and store in an encrypted 1,000 ballots in encrypted format. Each of
storage of results; format the digital images of the the 1,000 images files contained the images
(c) Error recovery in case of non-catastrophic failure of device; ballot for at least 2,000 ballot of the front and back sides of the ballot,
(d) System integrity which ensures physical stability and functioning of sides (1,000 ballots, with back totaling to 2,000 ballot side.
the vote recording and counting process; to back printing)? To verify the captured ballot images,
(e) Provision for voter verified paper audit trail; decrypted copies of the encrypted files were
(f) System auditability which provides supporting documentation for also provided. The same were found to be
verifying the correctness of reported election results; digitized representations of the ballots cast.
(g) An election management system for preparing ballots and programs
for use in the casting and counting of votes and to consolidate, report Is the system a fully integrated Yes. The proposed PCOS is a fully
and display election result in the shortest time possible; single device as described in integrated single device, with built-in printer
(h) Accessibility to illiterates and disabled voters; item no. 4 of Component 1-B? and built-in data communications ports
(i) Vote tabulating program for election, referendum or plebiscite; (Ethernet and USB).
(j) Accurate ballot counters;
(k) Data retention provision; Does the system have a Yes. A portion of a filled up marked oval was
(l) Provide for the safekeeping, storing and archiving of physical or paper scanning resolution of at least blown up using image editor software to
resource used in the election process; 200 dpi? reveal the number of dots per inch. The
(m) Utilize or generate official ballots as herein defined; sample image showed 200 dpi.
(a) Provide the voter a system of verification to find out whether or not File properties of the decrypted image file
the machine has registered his choice; and also revealed 200 dpi.
(o) Configure access control for sensitive system data and function. Does the system scan in Yes. 30 shades of gray were scanned in the
In the procurement of this system, the Commission shall develop and adopt an grayscale? test PCOS machine, 20 of which were
evaluation system to ascertain that the above minimum system capabilities are required, exceeding the required 4-bit/16
met. The evaluation system shall be developed with the assistance of an levels of gray as specified in the Bid Bulletin
advisory council. No. 19.
From the records before us, the Court is fairly satisfied that the Comelec has
adopted a rigid technical evaluation mechanism, a set of 26-item/check list Does the system require Yes. The system required the use of a
criteria, as will be enumerated shortly, to ensure compliance with the above authorization and security key with different sets of
minimum systems capabilities. authentication of all operators, passwords/PINs for Administrator and
The SBAC Memorandum77 of June 03, 2009, as approved by Comelec Res. such as, but not limited to, Operator users.
8608,78 categorically stated that the SBAC-TWG submitted its report that usernames and passwords,
with multiple user access
levels?
Does the system have an
electronic display?
Does the system employ error
handling procedures, including,
but not limited to, the use of
error prompts and other related
instructions?
Does the system count the
voters vote as marked on the
ballot with an accuracy rating of
at least 99.995%?
Does the system detect and
reject fake or spurious, and
previously scanned ballots?
Does the system scan both
sides of a ballot and in any
orientation in one pass?
Yes. The PCOS machine makes use of an
LCD display to show information:
if a ballot may be inserted into the
machine;
if a ballot is being processed; if a ballot is
being rejected;
on other instructions and information to
the voter/operator.
Yes. The PCOS showed error messages on
its screen whenever a ballot is rejected by
the machine and gives instructions to the
voter on what to do next, or when there was
a ballot jam error.
Yes. The two rounds of tests were
conducted for this test using only valid
marks/shades on the ballots. 20,000 marks
were required to complete this test, with only
one (1) allowable reading error.
625 ballots with 32 marks each were used
for this test. During the comparison of the
PCOS-generated results with the manually
prepared/predetermined results, it was
found out that there were seven (7) marks
which were inadvertently missed out during
ballot preparation by the TWG. Although the
PCOS-generated results turned out to be
100% accurate, the 20,000-mark was not
met thereby requiring the test to be
repeated.
To prepare for other possible missed out
marks,650 ballots with (20,800 marks) were
used for the next round of test, which also
yielded 100% accuracy.
Yes. This test made use of one (1)
photocopied ballot and one (1) "re-created"
ballot. Both were rejected by the PCOS.
Yes. Four (4) ballots with valid marks were
fed into the PCOS machine in the four (4)
portrait orientations specified in Bid Bulletin
No. 4 (either back or front, upside down or
right side up), and all were accurately
Does the system have
necessary safeguards to
determine the authenticity of a
ballot, such as, but not limited
to, the use of bar codes,
holograms, color shifting ink,
micro printing, to be provided
on the ballot, which can be
recognized by the system?
Are the names of the
candidates pre-printed on the
ballot?
Does each side of the ballot
sheet accommodate at least
300 names of candidates with a
minimum font size of 10, in
addition to other mandatory
information required by law?
Does the system recognize full
shade marks on the
appropriate space on the ballot
opposite the name of the
candidate to be voted for?
Does the system recognize
partial shade marks on the
appropriate space on the ballot
opposite the name of the
captured.
Yes. The system was able to recognize if the
security features on the ballot are "missing".
Aside from the test on the fake or spurious
ballots (Item No. 11), three (3) test ballots
with tampered bar codes and timing marks
were used and were all rejected by the
PCOS machine.
The photocopied ballot in the test for Item
No. 11 was not able to replicate the UV ink
pattern on top portion of the ballot causing
the rejection of the ballot.
Yes. The Two sample test ballots of different
lengths were provided: one (1) was 14
inches long while the other was 30 inches
long. Both were 8.5 inches wide.
The first showed 108 pre-printed candidate
names for the fourteen (14)
contests/positions, including two (2) survey
questions on gender and age group, and a
plebiscite question.
The other showed 609 pre-printed candidate
names, also for fourteen (14) positions
including three (3) survey questions.
Yes. The 30-inch ballot, which was used to
test Item No. 2, contained 309 names for the
national positions and 300 names for local
positions. The total pre-printed names on
the ballot totaled 609.
This type of test ballot was also used for test
voting by the public, including members of
the media.
Arial Narrow, font size 10, was used in the
printing of the candidate names.
Yes. The ballots used for the accuracy test
(Item No. 10), which made use of full shade
marks, were also used in this test and were
accurately recognized by the PCOS
machine.
Yes. Four (4) test ballots were used with one
(1) mark each per ballot showing the
following pencil marks:
top half shade;
candidate to be voted for? bottom half shade;
left half shade; and
right half shade
These partial shade marks were all
recognized by the PCOS machine
Does the system recognize Yes. One (1) test ballot with one check ()
check ()marks on the mark, using a pencil, was used for this test.
appropriate space on the ballot The mark was recognized successfully.
opposite the name of the
candidate to be voted for?
Does the system recognize x Yes. One (1) test ballot with one x mark,
marks on the appropriate space using a pencil, was used for this test.
on the ballot opposite the name The mark was recognized successfully.
of the candidate to be voted
for?
Does the system recognize Yes. The 1000 ballots used in the accuracy
both pencil and ink marks on test (Item No. 10) were marked using the
the ballot? proposed marking pen by the bidder.
A separate ballot with one (1) pencil mark
was also tested. This mark was also
recognized by the PCOS machine.
Moreover, the tests for Items No. 17, 18 and
19 were made using pencil marks on the
ballots.
In a simulation of a system shut Yes. Five (5) ballots were used in this test.
down, does the system have The power cord was pulled from the PCOS
error recovery features? while the 3rd ballot was in the middle of the
scanning procedure, such that it was left
"hanging" in the ballot reader.
After resumption of regular power supply,
the PCOS machine was able to restart
successfully with notification to the operator
that there were two (2) ballots already cast
in the machine. The "hanging" 3rd ballot
was returned to the operator and was able
to be re-fed into the PCOS machine. The
marks on all five (5) were all accurately
recognized.
Does the system have Yes. The PCOS was able to transmit to the
transmission and CCS during the end-to-end demonstration
consolidation/canvassing using GLOBE prepaid Internet kit.
capabilities?
Does the system generate a Yes. The PCOS saves a backup copy of the
backup copy of the generated
reports, in a removable data
storage device?
Does the system have
alternative power sources,
which will enable it to fully
operate for at least 12 hours?
Is the system capable of
generating and printing
reports?
Did the bidder successfully
demonstrate EMS, voting
counting,
consolidation/canvassing and
transmission?
ERs, ballot images, statistical report and
audit log into a Compact Flash (CF) Card.
Yes. A 12 bolt 18AH battery lead acid was
used in this test. The initial test had to be
repeated due to a short circuit, after seven
(7) hours from start-up without ballot
scanning. This was explained by TIM-
Smartmatic to be caused by non-compatible
wiring of the battery to the PCOS. A smaller
wire than what is required was inadvertently
used, likening the situation to incorrect
wiring of a car battery. Two (2) COMELEC
electricians were called to confirm TIM-
Smartmatics explanation. The PCOS
machine was connected to regular power
and started successfully. The following day,
the "re-test" was completed in 12 hours and
40 minutes xxx 984 ballots were fed into the
machine. The ER, as generated by the
PCOS was compared with predetermined
result, showed 100% accuracy.
Yes. The PCOS prints reports via its built-in
printer which includes:
1. Initialization Report; 2. Election Returns
(ER); 3. PCOS Statistical Report; 4. Audit
Log.
Yes. An end-to-end demonstration of all
proposed systems was presented covering:
importing of election data into the EMS;
creation of election configuration data for the
PCOS and the CCS using EMS; creation of
ballot faces using EMS; configuring the
PCOS and the CCS using the EMS-
generated election configuration file;
initialization, operation, generation of reports
and backup using the PCOS; electronic
transmission of results to the: [1] from the
PCOS to city/municipal CCS and the central
server. [2] from the city/municipal CCS to
the provincial CCS. [3] from the provincial
CCS to the national CCS; receipt and
canvass of transmitted results: [1] by the
city/municipal CCS from the PCOS. [2] by
 the provincial CCS from the city/municipal
CCS. [3] by the national CCS from the
provincial CCS; receipt of the transmittal
results by the central server from the PCOS.
Given the foregoing and absent empirical evidence to the contrary, the Court,
presuming regularity in the performance of regular duties, takes the demo-testing
thus conducted by SBAC-TWG as a reflection of the capability of the PCOS
machines, although the tests, as Comelec admits,80 were done literally in
the Palacio del Governador building, where a room therein simulated a town, the
adjoining room a city, etc. Perusing the RFP, however, the real worth of the
PCOS system and the machines will of course come after they shall have been
subjected to the gamut of acceptance tests expressly specified in the RFP,
namely, the lab test, field test, mock election test, transmission test and, lastly,
the final test and sealing procedure of all PCOS and CCS units using the actual
Election Day machine configuration.811avvph!1
Apropos the counting-accuracy feature of the PCOS machines, petitioners no
less impliedly admit that the web page they appended to their petition, showing a
2% to 10% failing rate, is no longer current.82 And if they bothered to examine the
current website of Smartmatic specifically dealing with its SAES 1800, the PCOS
system it offered, they would have readily seen that the advertised accuracy
rating is over "99.99999%."83 Moreover, a careful scrutiny of the old webpage of
Smarmatic reveals that the 2% to 10% failure rate applied to "optical scanners"
and not to SAES. Yet the same page discloses that the SAES has "100%"
accuracy. Clearly, the alleged 2% to 10% failing rate is now irrelevant and the
Court need not belabor this and the equally irrelevant estoppel principle
petitioners impose on us.
Intervenor Cuadras concern relates to the auditability of the election results. In
this regard, it may suffice to point out that PCOS, being a paper-based
technology, affords audit since the voter would be able, if need be, to verify if the
machine had scanned, recorded and counted his vote properly. Moreover, it
should also be noted that the PCOS machine contains an LCD screen, one that
can be programmed or configured to display to the voter his votes as read by the
machine. 84
No Abdication of Comelecs Mandate and Responsibilty
As a final main point, petitioners would have the Comelec-Smartmatic-TIM
Corporation automation contract nullified since, in violation of the Constitution, it
constitutes a wholesale abdication of the poll bodys constitutional mandate for
election law enforcement. On top of this perceived aberration, the mechanism of
the PCOS machines would infringe the constitutional right of the people to the
secrecy of the ballot which, according to the petitioners, is provided in Sec. 2, Art.
V of the Constitution.85
The above contention is not well taken.
The first function of the Comelec under the Constitution 86and the Omnibus
Election Code for that matterrelates to the enforcement and administration of
all laws and regulations relating to the conduct of elections to public office to
ensure a free, orderly and honest electoral exercise. And how did petitioners
come to their conclusion about their abdication theory? By acceding to Art. 3.3 of
the automation contract, Comelec relinquished, so petitioners claim, supervision
and control of the system to be used for the automated elections. To a more
specific point, the loss of control, as may be deduced from the ensuing
exchanges, arose from the fact that Comelec would not be holding possession of
what in IT jargon are the public and private keys pair.
CHIEF JUSTICE: Well, more specifically are you saying that the main course of
this lost of control is the fact that SMARTMATIC holds the public and private keys
to the sanctity of this system?
ATTY. ROQUE: Yes, Your Honor, as well as the fact that they control the program
embedded in the key cost that will read their votes by which the electorate may
verify that their votes were counted.
CHIEF JUSTICE: You are saying that SMARTMATIC and not its partner TIM who
hold these public and private keys?
ATTY. ROQUE: Yes, Your Honor.
The Court is not convinced. There is to us nothing in Art 3.3 of the automation
contract, even if read separately from other stipulations and the provisions of the
bid documents and the Constitution itself, to support the simplistic conclusion of
abdication of control pressed on the Court. Insofar as pertinent, Art 3.3 reads:
3.3 The PROVIDER shall be liable for all its obligations under this Project and the
performance of portions thereof by other persons or entities not parties to this
Contract shall not relieve the PROVIDER of said obligations and concomitant
liabilities.
SMARTMATIC, as the joint venture partner with the greater track record in
automated elections, shall be in charge of the technical aspects of the
counting and canvassing software and hardware, including transmission
configuration and system integration. SMARTMATIC shall also be primarily
responsible for preventing and troubleshooting technical problems that may arise
during the elections. (Emphasis added.)
The proviso designating Smartmatic as the joint venture partner in charge of the
technical aspect of the counting and canvassing wares does not to us translate,
without more, to ceding control of the electoral process to Smartmatic. It bears to
stress that the aforesaid designation of Smartmatic was not plucked from thin air,
as it was in fact an eligibility requirement imposed, should the bidder be a joint
venture. Part 5, par. 5.4 (e) of the Instruction to Bidders on the subject Eligible
Bidders, whence the second paragraph of aforequoted Art. 3.3 came from, reads:
5.4 A JV of two or more firms as partners shall comply with the following
requirements.
xxxx
(e) The JV member with a greater track record in automated elections, shall be
in-charge of the technical aspects of the counting and canvassing software and
hardware, including transmission configuration and system integration
And lest it be overlooked, the RFP, which forms an integral part of the automation
contract,87 has put all prospective bidders on notice of Comelecs intent to
automate and to accept bids that would meet several needs, among which is "a
complete solutions provider which can provide effective overall nationwide
project management service under COMELEC supervision and control, to
ensure effective and successful implementation of the [automation]
Project."88 Complementing this RFP advisory as to control of the election process
is Art. 6.7 of the automation contract, providing:
6.7 Subject to the provisions of the General Instructions to be issued by the
Commission En Banc, the entire processes of voting, counting, transmission,
consolidation and canvassing of votes shall be conducted by COMELECs
personnel and officials, and their performance, completion and final results
according to specifications and within the specified periods shall be the shared
responsibility of COMELEC and the PROVIDER. (Emphasis added.)
But not one to let an opportunity to score points pass by, petitioners rhetorically
ask: "Where does Public Respondent Comelec intend to get this large number of
professionals, many of whom are already gainfully employed abroad?" 89 The
Comelec, citing Sec. 390 and Sec. 5 of RA 8436,91 as amended, aptly answered
this poser in the following wise:
x x x [P]ublic respondent COMELEC, in the implementation of the automated
project, will forge partnerships with various entities in different fields to bring
about the success of the 2010 automated elections.
Public respondent COMELEC will partner with Smartmatic TIM Corporation for
the training and hiring of the IT personnel as well as for the massive voter-
education campaign. There is in fact a budget allocation x x x for these
undertakings. x x x
As regards the requirement of RA 9369 that IT-capable personnel shall be
deputized as a member of the BEI and that another IT-capable person shall
assist the BOC, public respondent COMELEC shall partner with DOST and other
agencies and instrumentalities of the government.
In not so many words during the oral arguments and in their respective
Memoranda, public and private respondents categorically rejected outright
allegations of abdication by the Comelec of its constitutional duty. The petitioners,
to stress, are strangers to the automation contract. Not one participated in the
bidding conference or the bidding proper or even perhaps examined the bidding
documents and, therefore, none really knows the real intention of the parties. As
case law tells us, the court has to ferret out the real intent of the parties. What is
fairly clear in this case, however, is that petitioners who are not even privy to the
bidding process foist upon the Court their own view on the stipulations of the
automation contract and present to the Court what they think are the parties true
intention. It is a study of outsiders appearing to know more than the parties do,
but actually speculating what the parties intended. The following is self-
explanatory:
CHIEF JUSTICE: Why did you say that it did not, did you talk with the Chairman
and Commissioners of COMELEC that they failed to perform this duty, they did
not exercise this power of control?
ATTY. ROQUE : Your Honor, I based it on the fact that it was the COMELEC in
fact that entered into this contract .
CHIEF JUSTICE : Yes, but my question is did you confront the COMELEC
officials that they forfeited their power of control in over our election process?
ATTY. ROQUE : We did not confront, your Honor. We impugned their acts, Your
Honor.92
Just as they do on the issue of control over the electoral process, petitioners also
anchor on speculative reasoning their claim that Smartmatic has possession and
control over the public and private keys pair that will operate the PCOS
machines. Consider: Petitioners counsel was at the start cocksure about
Smartmatics control of these keys and, with its control, of the electoral process. 93
Several questions later, his answers had a qualifying tone:
JUSTICE NACHURA: And can COMELEC under the contract not demand that it
have access, that it be given access to and in fact generate its own keys
independently with SMARTMATIC so that it would be COMELEC and not
SMARTMATIC that would have full control of the technology insofar as the keys
are concerned xxx?
ATTY. ROQUE: I do not know if COMELEC will be in a position to generate these
keys, xxx. 94
And subsequently, the speculative nature of petitioners position as to who would
have possession and control of the keys became apparent.
CHIEF JUSTICE: Yes, but did you check with the COMELEC who will be holding
these two keys x x x did you check with COMELEC whether this system is
correct?
ATTY.ROQUE: We have not had occasion to do so, x x x Your Honor.
xxxx
CHIEF JUSTICE: Why do you make that poor conclusion against the COMELEC
x x x May not the COMELEC hire the services of experts in order for the
institution to be able to discharge its constitutional functions?
ATTY. ROQUE: That is true, but x x x there is too much reliance on individuals
who do not have the same kind of accountability as public officers x x x
CHIEF JUSTICE: Are you saying that the COMELEC did not consult with
available I.T. experts in the country before it made the bidding rules before it
conducted the bidding and make the other policy judgments?
ATTY. ROQUE: Your Honor, what I am sure is that they did not confer with the I.T.
Foundation x x x.
CHIEF JUSTICE: But is that foundation the only expert, does it have a monopoly
of knowledge?95
The Court, to be sure, recognizes the importance of the vote-security issue
revolving around the issuance of the public and private keys pair to the Board of
Election Inspectors, including the digital signatures. The NCC comment on the
matter deserves mention, appearing to hew as it does to what appear on the
records. The NCC wrote:
The RFP/TOR used in the recent bidding for the AES to be used in the 2010
elections specifically mandated the use of public key cryptography. However, it
was left to the discretion of the bidder to propose an acceptable manner of
utilization for approval/acceptance of the Comelec. Nowhere in the RFP/TOR
was it indicated that COMELEC would delegate to the winning bidder the full
discretion, supervision and control over the manner of PKI [Public Key
Infrastructure] utilization.
With the view we take of the automation contract, the role of Smartmatic TIM
Corporation is basically to supply the goods necessary for the automation
project, such as but not limited to the PCOS machines, PCs, electronic
transmission devices and related equipment, both hardware and software, and
the technical services pertaining to their operation. As lessees of the goods and
the back-up equipment, the corporation and its operators would provide
assistance with respect to the machines to be used by the Comelec which, at the
end of the day, will be conducting the election thru its personnel and whoever it
deputizes.
And if only to emphasize a point, Comelecs contract is with Smartmatic TIM
Corporation of which Smartmatic is a 40% minority owner, per the JVA of TIM
and Smartmatic and the Articles of Incorporation of Smartmatic TIM Corporation.
Accordingly, any decision on the part or on behalf of Smartmatic will not be
binding on Comelec. As a necessary corollary, the board room voting
arrangement that Smartmatic and TIM may have agreed upon as joint venture
partners, inclusive of the veto vote that one may have power over the other,
should really be the least concern of the Comelec.
Parenthetically, the contention that the PCOS would infringe on the secrecy and
sanctity of the ballot because, as petitioners would put it, the voter would be
confronted with a "three feet" long ballot,96 does not commend itself for
concurrence. Surely, the Comelec can put up such infrastructure as to insure that
the voter can write his preference in relative privacy. And as demonstrated during
the oral arguments, the voter himself will personally feed the ballot into the
machine. A voter, if so minded to preserve the secrecy of his ballot, will always
devise a way to do so. By the same token, one with least regard for secrecy will
likewise have a way to make his vote known.
During the oral arguments, the notion of a possible violation of the Anti-Dummy
Law cropped up, given the RFP requirement of a joint venture bidder to be at
least be 60% Filipino. On the other hand, the winning bidder, TIM-Smartmatic
joint venture, has Smartmatic, a foreign corporation, owning 40% of the equity in,
first, the joint venture partnership, and then in Smartmatic TIM Corporation.
The Anti-Dummy Law97 pertinently states:
Section 1. Penalty. In all cases in which any constitutional or legal provision
requires Philippine or any other specific citizenship as a requisite for the exercise
or enjoyment of a right, franchise or privilege, any citizen of the Philippines or of
any other specific country who allows his name or citizenship to be used for the
purpose of evading such provision, and any alien or foreigner profiting thereby,
shall be punished by imprisonment xxx and by a fine xxx.
SECTION 2. Simulation of minimum capital stock In all cases in which a
constitutional or legal provision requires that a corporation or association may
exercise or enjoy a right, franchise or privilege, not less than a certain per
centum of its capital must be owned by citizens of the Philippines or any other
specific country, it shall be unlawful to falsely simulate the existence of such
minimum stock or capital as owned by such citizen for the purpose of evading
such provision. xxx
SECTION 2-A. Unlawful use, Exploitation or Enjoyment. Any person, corporation,
or association which, having in its name or under its control, a right, franchise,
privilege, property or business, the exercise or enjoyment of which is expressly
reserved by the Constitution or the laws to citizens of the Philippines or of any
other specific country, or to corporations or associations at least sixty per centum
of the capital of which is owned by such citizens, permits or allows the use,
exploitation or enjoyment thereof by a person, corporation, or association not
possessing the requisites prescribed by the Constitution or the laws of the
Philippines; or leases, or in any other way, transfers or conveys said right,
franchise, privilege, property or business to a person, corporation or association
not otherwise qualified under the Constitution xxx shall be punished by
imprisonment xxx (Emphasis added.)
The Anti-Dummy Law has been enacted to limit the enjoyment of certain
economic activities to Filipino citizens or corporations. For liability for violation of
the law to attach, it must be established that there is a law limiting or reserving
the enjoyment or exercise of a right, franchise, privilege, or business to citizens
of the Philippines or to corporations or associations at least 60 per centum of the
capital of which is owned by such citizens. In the case at bench, the Court is not
aware of any constitutional or statutory provision classifying as a nationalized
activity the lease or provision of goods and technical services for the automation
of an election. In fact, Sec. 8 of RA 8436, as amended, vests the Comelec with
specific authority to acquire AES from foreign sources, thus:
SEC 12. Procurement of Equipment and Materials. To achieve the purpose of
this Act, the Commission is authorized to procure, xxx, by purchase, lease, rent
or other forms of acquisition, supplies, equipment, materials, software, facilities,
and other services, from local or foreign sources xxx. (Emphasis added.)
Petitioners cite Executive Order No. (EO) 584, 98 Series of 2006, purportedly
limiting "contracts for the supply of materials, goods and commodities to
government-owned or controlled corporation, company, agency or municipal
corporation" to corporations that are 60% Filipino. We do not quite see the
governing relevance of EO 584. For let alone the fact that RA 9369 is, in relation
to EO 584, a subsequent enactment and, therefore, enjoys primacy over the
executive issuance, the Comelec does fall under the category of a government-
owned and controlled corporation, an agency or a municipal corporation
contemplated in the executive order.
A view has been advanced regarding the susceptibility of the AES to hacking, just
like the voting machines used in certain precincts in Florida, USA in the Gore-
Bush presidential contests. However, an analysis of post-election reports on the
voting system thus used in the US during the period material and the AES to be
utilized in the 2010 automation project seems to suggest stark differences
between the two systems. The first relates to the Source Code, defined in RA
9369 as "human readable instructions that define what the computer equipment
will do."99The Source Code for the 2010 AES shall be available and opened for
review by political parties, candidates and the citizens arms or their
representatives;100 whereas in the US precincts aforementioned, the Source
Code was alleged to have been kept secret by the machine manufacture
company, thus keeping the American public in the dark as to how exactly the
machines counted their votes. And secondly, in the AES, the PCOS machines
found in the precincts will also be the same device that would tabulate and
canvass the votes; whereas in the US, the machines in the precincts did not
count the votes. Instead the votes cast appeared to have been stored in a
memory card that was brought to a counting center at the end of the day. As a
result, the hacking and cheating may have possibly occurred at the counting
center.
Additionally, with the AES, the possibility of system hacking is very slim. The
PCOS machines are only online when they transmit the results, which would only
take around one to two minutes. In order to hack the system during this tiny span
of vulnerability, a super computer would be required. Noteworthy also is the fact
that the memory card to be used during the elections is encrypted and read-
onlymeaning no illicit program can be executed or introduced into the memory
card.
Therefore, even though the AES has its flaws, Comelec and Smartmatic have
seen to it that the system is well-protected with sufficient security measures in
order to ensure honest elections.
And as indicated earlier, the joint venture provider has formulated and put in
place a continuity and back-up plans that would address the understandable
apprehension of a failure of elections in case the machines falter during the
actual election. This over-all fall-back strategy includes the provisions for 2,000
spare PCOS machines on top of the 80,000 units assigned to an equal number
precincts throughout the country. The continuity and back-up plans seek to
address the following eventualities: (1) The PCOS fails to scan ballots; (2) The
PCOS scans the ballots, but fails to print election returns (ERs); and/or (3) The
PCOS prints but fails to transmit the ERs. In the event item #1 occurs, a spare
PCOS, if available, will be brought in or, if not available, the PCOS of another
precinct (PCOS 2 for clarity), after observing certain defined
requirements,101 shall be used. Should all the PCOS machines in the entire
municipality/city fail, manual counting of the paper ballots and the manual
accomplishment of ERs shall be resorted to in accordance with Comelec
promulgated rules on appreciation of automated ballots. 102 In the event item #2
occurs where the PCOS machines fail to print ERs, the use of spare PCOS and
the transfer of PCOS-2 shall be effected. Manual counting of ERs shall be
resorted to also if all PCOS fails in the entire municipality. And should eventuality
#3 transpire, the following back-up options, among others, may be availed of:
bringing PCOS-1 to the nearest precinct or polling center which has a functioning
transmission facility; inserting transmission cable of functioning transmission line
to PCOS-1 and transmitting stored data from PCOS-1 using functioning
transmission facility.
The disruption of the election process due to machine breakdown or malfunction
may be limited to a precinct only or could affect an entire municipal/city. The
worst case scenario of course would be the wholesale breakdown of the 82,000
PCOS machines. Nonetheless, even in this most extreme case, failure of all the
machines would not necessarily translate into failure of elections. Manual count
tabulation and transmission, as earlier stated, can be done, PCOS being a
paper-ballot technology. If the machine fails for whatever reason, the paper
ballots would still be there for the hand counting of the votes, manual tabulation
and transmission of the ERs. Failure of elections consequent to voting machines
failure would, in fine, be a very remote possibility.
A final consideration.
The first step is always difficult. Hardly anything works, let alone ends up
perfectly the first time around. As has often been said, if one looks hard enough,
he will in all likelihood find a glitch in any new system. It is no wonder some IT
specialists and practitioners have considered the PCOS as unsafe, not the most
appropriate technology for Philippine elections, and "easily hackable," even. And
the worst fear expressed is that disaster is just waiting to happen, that PCOS
would not work on election day.
Congress has chosen the May 2010 elections to be the maiden run for full
automation. And judging from what the Court has heard and read in the course of
these proceedings, the choice of PCOS by Comelec was not a spur-of-moment
affair, but the product of honest-to-goodness studies, consultations with CAC,
and lessons learned from the ARMM 2008 automated elections. With the backing
of Congress by way of budgetary support, the poll body has taken this historic, if
not ambitious, first step. It started with the preparation of the RFP/TOR, with a list
of voluminous annexes embodying in specific detail the bidding rules and
expectations from the bidders. And after a hotly contested and, by most
accounts, a highly transparent public bidding exercise, the joint venture of a
Filipino and foreign corporation won and, after its machine hurdled the end-to-
end demonstration test, was eventually awarded the contract to undertake the
automation project. Not one of the losing or disqualified bidders questioned, at
least not before the courts, the bona fides of the bidding procedures and the
outcome of the bidding itself.
Assayed against the provisions of the Constitution, the enabling automation law,
RA 8436, as amended by RA 9369, the RFP and even the Anti-Dummy Law,
which petitioners invoked as an afterthought, the Court finds the project award to
have complied with legal prescriptions, and the terms and conditions of the
corresponding automation contract in question to be valid. No grave abuse of
discretion, therefore, can be laid on the doorsteps of respondent Comelec. And
surely, the winning joint venture should not be faulted for having a foreign
company as partner.
The Comelec is an independent constitutional body with a distinct and pivotal
role in our scheme of government. In the discharge of its awesome functions as
overseer of fair elections, administrator and lead implementor of laws relative to
the conduct of elections, it should not be stymied with restrictions that would
perhaps be justified in the case of an organization of lesser responsibility.103 It
should be afforded ample elbow room and enough wherewithal in devising
means and initiatives that would enable it to accomplish the great objective for
which it was createdto promote free, orderly, honest and peaceful elections.
This is as it should be for, too often, Comelec has to make decisions under
difficult conditions to address unforeseen events to preserve the integrity of the
election and in the process the voice of the people. Thus, in the past, the Court
has steered away from interfering with the Comelecs exercise of its power which,
by law and by the nature of its office properly pertain to it. Absent, therefore, a
clear showing of grave abuse of discretion on Comelecs part, as here, the Court
should refrain from utilizing the corrective hand of certiorari to review, let alone
nullify, the acts of that body. This gem, while not on all fours with, is lifted from,
the Courts holding in an old but oft-cited case:
x x x We may not agree fully with [the Comelecs] choice of means, but unless
these are clearly illegal or constitute gross abuse of discretion, this court should
not interfere. Politics is a practical matter, and political questions must be dealt
with realisticallynot from the standpoint of pure theory [or speculation]. x x x
xxxx
There are no ready-made formulas for solving public problems. Time and
experience are necessary to evolve patterns that will serve the ends of good
government. In the matter of the administration of the laws relative to the conduct
of elections, x x x we must not by any excessive zeal take away from the
[Comelec] the initiative which by constitutional and legal mandates properly
belongs to it. Due regard to the independent character of the Commission x x x
requires that the power of this court to review the acts of that body should, as a
general proposition, be used sparingly, but firmly in appropriate cases. 104 x x x
The Court, however, will not indulge in the presumption that nothing would go
wrong, that a successful automation election unmarred by fraud, violence, and
like irregularities would be the order of the moment on May 10, 2010. Neither will
it guarantee, as it cannot guarantee, the effectiveness of the voting machines and
the integrity of the counting and consolidation software embedded in them. That
task belongs at the first instance to Comelec, as part of its mandate to ensure
clean and peaceful elections. This independent constitutional commission, it is
true, possesses extraordinary powers and enjoys a considerable latitude in the
discharge of its functions. The road, however, towards successful 2010
automation elections would certainly be rough and bumpy. The Comelec is
laboring under very tight timelines. It would accordingly need the help of all
advocates of orderly and honest elections, of all men and women of goodwill, to
smoothen the way and assist Comelec personnel address the fears expressed
about the integrity of the system. Like anyone else, the Court would like and wish
automated elections to succeed, credibly.
WHEREFORE, the instant petition is hereby DENIED.
SO ORDERED.
G.R. No. 188456 February 10, 2010
H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. BAGARES,
ALLAN JONES F. LARDIZABAL, GILBERT T. ANDRES, IMMACULADA D.
GARCIA, ERLINDA T. MERCADO, FRANCISCO A. ALCUAZ, MA. AZUCENA
P. MACEDA, and ALVIN A. PETERS, Petitioners,
vs.
COMMISSION ON ELECTIONS, Represented by HON. CHAIRMAN JOSE
MELO, COMELEC SPECIAL BIDS and AWARDS COMMITTEE, represented
by its CHAIRMAN HON. FERDINAND RAFANAN, DEPARTMENT OF
BUDGET and MANAGEMENT, represented by HON. ROLANDO ANDAYA,
TOTAL INFORMATION MANAGEMENT CORPORATION and SMARTMATIC
INTERNATIONAL CORPORATION, Respondents.
PETE QUIRINO-QUADRA, Petitioner-in-Intervention.
SENATE OF THE PHILIPPINES, represented by its President, JUAN PONCE
ENRILE, Movant-Intervenor.
Civil Procedure; Appeals; Theories, issues, and arguments not raised in the
original proceedings cannot be brought out on review. Basic considerations of fair
play impel this rule. The imperatives of orderly, if not speedy, justice frown on a
piecemeal presentation of evidence and on the practice of parties of going to trial
haphazardly.As a matter of sound established practice, points of law, theories,
issues, and arguments not raised in the original proceedings cannot be brought
out on review. Basic considerations of fair play impel this rule. The imperatives of
orderly, if not speedy, justice frown on a piecemeal presentation of evidence and
on the practice of parties of going to trial haphazardly.
RESOLUTION
VELASCO, JR., J.:
By Decision dated September 10, 2009, the Court denied the petition of H. Harry
L. Roque, Jr., et al. for certiorari, prohibition, and mandamus to nullify the
contract-award of the 2010 Election Automation Project to the joint venture of
Total Information Management Corporation (TIM) and Smartmatic International
Corporation (Smartmatic). The Court also denied the petition-in-intervention of
Pete Q. Quadra, praying that the respondents be directed to implement the
minimum requirements provided under pars. (f) and (g), Section 6 of Republic Act
No. (RA) 8436, or the Election Modernization Act, as amended by RA 9369.
Petitioners Roque, et al. are again before the Court on a motion for
reconsideration, as supplemented, praying, as they did earlier, that the contract
award be declared null and void on the stated ground that it was made in
violation of the Constitution, statutes, and jurisprudence. 1 Intervening petitioner
also interposed a similar motion, but only to pray that the Board of Election
Inspectors be ordered to manually count the ballots after the printing and
electronic transmission of the election returns.
To both motions, private respondents TIM and Smartmatic, on the one hand, and
public respondents Commission on Elections (Comelec), et al., on the other,
have interposed their separate comments and/or oppositions.
As may be recalled, the underlying petition for certiorari, etc. on its face assailed
the award by Comelec of the poll automation project to the TIM-Smartmatic joint
venture, the challenge basically predicated on the non-compliance of the contract
award with the pilot-testing requirements of RA 9369 and the minimum system
capabilities of the chosen automated election system (AES), referring to the
Precinct Count Optical Scan (PCOS) system. The non-submission of documents
to show the existence and scope of a valid joint venture agreement between TIM
and Smartmatic was also raised as a nullifying ground, albeit later abandoned or
at least not earnestly pursued.
The Court, in its September 10, 2009 Decision, dismissed the petition and the
petition-in-intervention on the following main grounds: (1) RA 8436, as amended,
does not require that the AES procured or, to be used for the 2010 nationwide
fully automated elections must, as a condition sine qua non, have been pilot-
tested in the 2007 Philippine election, it being sufficient that the capability of the
chosen AES has been demonstrated in an electoral exercise in a foreign
jurisdiction; (2) Comelec has adopted a rigid technical evaluation mechanism to
ensure compliance of the PCOS with the minimum capabilities standards
prescribed by RA 8436, as amended, and its determination in this regard must be
respected absent grave abuse of discretion; (3) Comelec retains under the
automation arrangement its supervision, oversight, and control mandate to
ensure a free, orderly, and honest electoral exercise; it did not, by entering into
the assailed automation project contract, abdicate its duty to enforce and
administer all laws relative to the conduct of elections and decide, at the first
instance, all questions affecting elections; and (4) in accordance with contract
documents, continuity and back-up plans are in place to be activated in case the
PCOS machines falter during the actual election exercise.
Petitioners Roque, et al., as movants herein, seek a reconsideration of the
September 10, 2009 Decision on the following issues or grounds:
1. The Comelecs public pronouncements show that there is a "high
probability" that there will be failure of automated elections;
2. Comelec abdicated its constitutional functions in favor of Smartmatic;
3. There is no legal framework to guide the Comelec in appreciating
automated ballots in case the PCOS machines fail;
4. Respondents cannot comply with the requirements of RA 8436 for a
source code review;
5. Certifications submitted by private respondents as to the successful
use of the machines in elections abroad do not fulfill the requirement of
Sec. 12 of RA 8436;
6. Private respondents will not be able to provide telecommunications
facilities that will assure 100% communications coverage at all times
during the conduct of the 2010 elections; and
7. Subcontracting the manufacture of PCOS machines to Quisdi violates
the Comelecs bidding rules.
Both public and private respondents, upon the other hand, insist that petitioners
motion for reconsideration should be held devoid of merit, because the motion,
for the most part, either advances issues or theories not raised in the petition for
certiorari, prohibition, and mandamus, and argues along speculative and
conjectural lines.
Upon taking a second hard look into the issues in the case at bar and the
arguments earnestly pressed in the instant motions, the Court cannot grant the
desired reconsideration.
Petitioners threshold argument delves on possibilities, on matters that may or
may not occur. The conjectural and speculative nature of the first issue raised is
reflected in the very manner of its formulation and by statements, such as "the
public pronouncements of public respondent COMELEC2 x x x clearly show that
there is a high probability that there will be automated failure of elections"; 3 "there
is a high probability that the use of PCOS machines in the May 2010 elections
will result in failure of elections";4 "the unaddressed logistical nightmaresand
the lack of contingency plans that should have been crafted as a result of a pilot
testmake an automated failure of elections very probable"; 5 and "COMELEC
committed grave abuse of discretion when it signed x x x the contract for full
automation x x x despite the likelihood of a failure of elections." 6
Speculations and conjectures are not equivalent to proof; they have little, if any,
probative value and, surely, cannot be the basis of a sound judgment.
Petitioners, to support their speculative venture vis--vis the possibility of
Comelec going manual, have attributed certain statements to respondent
Comelec Chairman Melo, citing for the purpose a news item on Inquirer.net,
posted September 16, 2009.7
Reacting to the attribution, however, respondents TIM and Smartmatic, in their
comment, described the Melo pronouncements as made in the context of
Comelecs contingency plan. Petitioners, however, the same respondents added,
put a misleading spin to the Melo pronouncements by reproducing part of the
news item, but omitting to make reference to his succeeding statements to arrive
at a clearer and true picture.
Private respondents observation is well-taken. Indeed, it is easy to selectively
cite portions of what has been said, sometimes out of their proper context, in
order to assert a misleading conclusion. The effect can be dangerous. Improper
meaning may be deliberately attached to innocent views or even occasional
crude comments by the simple expediency of lifting them out of context from any
publication. At any event, the Court took it upon itself to visit the website, whence
petitioners deduced their position on the possible failure of automated elections
in problem areas and found the following items:
Allaying fears of failure of elections in 2010, the x x x [Comelec] said it will
prepare for manual balloting, especially for areas with problems in electricity and
telecommunications network coverage. x x x
"Aside from preparations for poll automation, Comelec is also preparing for
manual elections sa mga liblib na lugar [in remote places] x x x, provinces with
no electricity and would have issues in electronic transmission. We are ready for
manual polls in at least 30 percent or 50 percent of the country as a last
contingency measure in case the contingency plans for automation are difficult to
implement," said Melo.
The poll chief was reacting to statements expressing the possibility of
failure of elections due to the novelty of poll automation.
"The occurrence of nationwide failure of elections as alleged by doomsayers is
impossible. Under the laws of probability, all 80,000 PCOS machines nationwide
cannot breakdown. Maybe several would but we have standby units for this and
we also have preparations for manual elections," he said. 8 (Emphasis added.)
Petitioners next maintain that the Comelec abdicated its constitutional
mandate9 to decide all questions affecting elections when, under Article 3.3 10 of
the poll automation contract, it surrendered control of the system and technical
aspects of the 2010 automated elections to Smartmatic in violation of Sec. 26 11 of
RA 8436. Comelec, so petitioners suggest, should have stipulated that its
Information Technology (IT) Department shall have charge of the technical
aspects of the elections.
Petitioners above contention, as well as the arguments, citations, and premises
holding it together, is a rehash of their previous position articulated in their
memorandum12 in support of their petition. They have been considered, squarely
addressed, and found to be without merit in the Decision subject hereof. The
Court is not inclined to embark on another extended discussion of the same
issue again. Suffice it to state that, under the automation contract, Smartmatic is
given a specific and limited technical task to assist the Comelec in implementing
the AES. But at the end of the day, the Smarmatic-TIM joint venture is merely a
service provider and lessor of goods and services to the Comelec, which shall
have exclusive supervision and control of the electoral process. Art. 6.7 of the
automation contract could not have been more clear:
6.7 Subject to the provisions of the General Instructions to be issued by the
Commission En Banc, the entire process of voting, counting, transmission,
consolidation and canvassing of votes shall [still] be conducted by COMELECs
personnel and officials and their performance, completion and final results
according to specifications and within specified periods shall be the shared
responsibility of COMELEC and the PROVIDER. (Emphasis added.)
The aforequoted provision doubtless preserves Comelecs constitutional and
statutory responsibilities. But at the same time, it realistically recognizes the
complexity and the highly technical nature of the automation project and
addresses the contingencies that the novelty of election automation brings.
Petitioners posture anent the third issue, i.e, there no is legal framework to guide
Comelec in the appreciation of automated ballots or to govern manual count
should PCOS machines fail, cannot be accorded cogency. First, it glosses over
the continuity and back-up plans that would be implemented in case the PCOS
machines falter during the 2010 elections.13 The overall fallback strategy and
options to address even the worst-case scenariothe wholesale breakdown of
the 80,000 needed machines nationwide and of the 2,000 reserved unitshave
been discussed in some detail in the Decision subject of this recourse. The Court
need not belabor them again.
While a motion for reconsideration may tend to dwell on issues already resolved
in the decision sought to be reconsideredand this should not be an obstacle for
a reconsiderationthe hard reality is that petitioners have failed to raise matters
substantially plausible or compellingly persuasive to warrant the desired course
of action.
Second, petitioners position presupposes that the Comelec is, in the meanwhile,
standing idly by, totally unconcerned with that grim eventuality and the scenarios
petitioners envision and depict. Comelec, to reiterate, is the constitutional body
tasked to enforce and administer all laws and regulations relative to the conduct
of an election. In the discharge of this responsibility, Comelec has been afforded
enough latitude in devising means and methods that would enable it to
accomplish the great objective for which it was created. In the matter of the
administration of laws relative to the conduct of elections, the Courtor
petitioners for that mattermust not, by any preemptive move or any excessive
zeal, take away from Comelec the initiative that by law pertains to it. 14 It should
not be stymied with restrictions that would perhaps be justified in the case of an
organization of lesser responsibility.15
Significantly, petitioners, in support of their position on the lack-of-legal-
framework issue, invoke the opinion of Associate, later Chief, Justice Artemio
Panganiban in Loong v. Comelec,16 where he made the following observations:
"Resort to manual appreciation of the ballots is precluded by the basic features of
the automated election system,"17 and "the rules laid down in the Omnibus
Election Code (OEC) for the appreciation and counting of ballots cast in a
manual election x x x are inappropriate, if not downright useless, to the proper
appreciation and reading of the ballots used in the automated system." 18 Without
delving on its wisdom and validity, the view of Justice Panganiban thus cited
came by way of a dissenting opinion. As such, it is without binding effect, a
dissenting opinion being a mere expression of the individual view of a member of
the Court or other collegial adjudicating body, while disagreeing with the
conclusion held by the majority.19
Petitioners insist next that public respondents cannot comply with the
requirement of a source code20 review as mandated by Sec. 14 of RA 8436, as
amended, which provides:
SEC. 14. Examination and Testing of Equipment or Device of the AES and
Opening of the Source Code of Review.Once an AES Technology is selected
for implementation, the Commission shall promptly make the source code of that
technology available and open to any interested political party or groups which
may conduct their own review thereof.
Pursuing the point, after citing a commentary of an IT expert on the importance of
a source code review, petitioners state the observation that "there are strong
indications of [the inability] to comply x x x since the source code, which runs the
PCOS machines, will effectively be kept secret from the people." 21
Again, petitioners engage in an entirely speculative exercise, second- guessing
what the Comelec can and will probably do, or what it cannot and probably will
not do, with respect to the implementation of a statutory provision. The fact that a
source code review is not expressly included in the Comelec schedule of
activities is not an indication, as petitioners suggest, that Comelec will not
implement such review. Comelec, in its Comment on the Motion for
Reconsideration, manifests its intention to make available and open the source
code to all political and interested parties, but under a controlled environment to
obviate replication and tampering of the source code, thus protecting, in the
process, the intellectual proprietary right of Smartmatic to the source code.
Absent compelling proof to the contrary, the Court accords the Comelec, which
enjoys the presumption of good faith in the performance of its duties in the first
place, the benefit of the doubt.
And going to another but recycled issue, petitioners would have the Court
invalidate the automation contract on the ground that the certifications submitted
by Smartmatic during the bidding, showing that the PCOS technology has been
used in elections abroad, do not comply with Sec. 12 22 of RA 8436.
We are not convinced.
As stressed in our September 10, 2009 Decision, the AES chosen by Comelec
for the 2010 elections has been successfully deployed in previous electoral
exercises in foreign countries, such as Ontario, Canada and New York,
USA,23 albeit Smartmatic was not necessarily the system provider.
Roque, et al., in their petition, had questioned the certifications to this effect,
arguing that these certifications were not issued to respondent TIM-Smartmatic,
but to a third party, Dominion Voting Systems. Resolving the challenge, the
Court, in effect, said that the system subject of the certifications was the same
one procured by Comelec for the 2010 elections. And besides, the Licensing
Agreement between Smartmatic and the Dominion Voting Systems indicates that
the former is the entity licensed by the latter to use the system in the Philippines.
Presently, petitioners assert that the system certified as having been used in New
York was the Dominion Image Cast, a ballot marking device.
Petitioners have obviously inserted, at this stage of the case, an entirely new
factual dimension to their cause. This we cannot allow for compelling reasons.
For starters, the Court cannot plausibly validate this factual assertion of
petitioners. As it is, private respondents have even questioned the reliability of
the website24 whence petitioners base their assertion, albeit the former, citing the
same website, state that the Image Cast Precinct tabulation device refers to the
Dominions PCOS machines.
Moreover, as a matter of sound established practice, points of law, theories,
issues, and arguments not raised in the original proceedings cannot be brought
out on review. Basic considerations of fair play impel this rule. The imperatives of
orderly, if not speedy, justice frown on a piecemeal presentation of
evidence25 and on the practice of parties of going to trial haphazardly.26
Moving still to another issue, petitioners claim that "there are very strong
indications that Private Respondents will not be able to provide for
telecommunication facilities for areas without these facilities." 27 This argument,
being again highly speculative, is without evidentiary value and hardly provides a
ground for the Court to nullify the automation contract. Surely, a possible breach
of a contractual stipulation is not a legal reason to prematurely rescind, much
less annul, the contract.1avvphi1
Finally, petitioners argue that, based on news reports,28 the TIM-Smartmatic joint
venture has entered into a new contract with Quisdi, a Shanghai-based company,
to manufacture on its behalf the needed PCOS machines to fully automate the
2010 elections.29 This arrangement, petitioners aver, violates the bid rules
proscribing sub-contracting of significant components of the automation project.
The argument is untenable, based as it is again on news reports. Surely,
petitioners cannot expect the Court to act on unverified reports foisted on it. And,
of course, the Court is at a loss to understand how the sub-contract would, in the
scheme of things, constitute grave abuse of discretion on the part of Comelec so
as to nullify the contract award of the automation project. As petitioners
themselves acknowledge, again citing news reports, "Smartmatic has unilaterally
made the new subcontract to the Chinese company." 30 Petitioners admit too,
albeit with qualification, that RA 9184 allows subcontracting of a portion of the
automation project.31
The motion of intervenor Quadra deals with the auditability of the results of the
automated elections. His concern has already been addressed by the Court in its
Decision. As we have said, the AES procured by the Comelec is a paper-based
system, which has a provision for system auditability, since the voter would be
able, if needed, to verify if the PCOS machine has scanned, recorded, and
counted his vote properly. All actions done on the machine can be printed out by
the Board of Election Inspectors Chairperson as an audit log. 32
On the basis of the arguments, past and present, presented by the petitioners
and intervenor, the Court does not find any grave abuse of discretion on the part
of the Comelec in awarding the automation contract to the joint venture of private
respondents.
In closing, the Court harks back to its parting message embodied in its
September 10, 2009 Decision, but this time even more mindful of warnings and
apprehensions of well-meaning sectors of society, including some members of
the Court, about the possibility of failure of elections. The Court, to repeat, will not
venture to say that nothing could go wrong in the conduct of the 2010 nationwide
automated elections. Neither will it guarantee, as it is not even equipped with the
necessary expertise to guarantee, the effectiveness of the voting machines and
the integrity of the counting and consolidation software embedded in them. That
difficult and complex undertaking belongs at the first instance to the Comelec as
part of its mandate to insure orderly and peaceful elections. The Comelec, as it
were, is laboring under a very tight timeline. It would accordingly need the help of
all advocates of orderly and honest elections, all men and women of goodwill, to
assist Comelec personnel in addressing the fears expressed about the integrity
of the system. After all, peaceful, fair, honest, and credible elections is everyones
concern.
WHEREFORE, the instant separate motions for reconsideration of the main and
intervening petitioners are DENIED.
SO ORDERED.
G.R. No. 199082 September 18, 2012
JOSE MIGUEL T. ARROYO, Petitioner,
vs.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE
LIMA, in her capacity as Secretary of the Department of Justice; HON.
SIXTO BRILLANTES, .JR., in his capacity as Chairperson of the
Commission on Elections; and the JOINT DOJ-COMELEC PRELIMINARY
INVESTIGATION COMMITTEE and FACT-FINDING TEAM, Respondents.
x-----------------------x
G.R. No. 199085
BENJAMIN S. ABALOS, SR., Petitioner,
vs.
HON. LEILA DE LIMA, in her capacity as Secretary of Justice; HON. SIXTO
S. BRILLANTES, JR., in his capacity as COMELEC Chairperson; RENE V.
SARMIENTO, LUCENITO N. TAGLE, ARMANDO V. VELASCO, ELIAS R.
YUSOPH, CHRISTIAN ROBERT S. LIM AND AUGUSTO C. LAGMAN, in their
capacity as COMELEC COMMISSIONERS; CLARO A. ARELLANO, GEOUGE
C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D. VILLARET,
in their capacity as CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF
THE JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITEE ON
THE 2004 AND 2007 ELECTION FRAUD, Respondents.
x-----------------------x
G.R. No.199118
GLORIA MACAPAGAL-ARROYO, Petitioner,
vs.
COMMISSION ON ELECTIONS, represented by Chairperson Sixto S.
Brillantes, Jr., DEPARTMENT OF JUSTICE, represented by Secretary Leila
M. De Lima, JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION
COMMITTEE, SENATOR AQUILINO M. PIMENTEL III, and DOJ-COMELEC
FACT FINDING TEAM, Respondents.
Remedial Law; Civil Procedure; Moot and Academic; A case becomes moot and
academic when it ceases to present a justiciable controversy so that a
declaration on the issue would be of no practical use or value.A case becomes
moot and academic when it ceases to present a justiciable controversy so that a
declaration on the issue would be of no practical use or value. However, a case
should not be dismissed simply because one of the issues raised therein had
become moot and academic by the onset of a supervening event, whether
intended or incidental, if there are other causes which need to be resolved after
trial.
Same; Same; Courts; Hierarchy of Courts; Supreme Court; Jurisdiction; The
Supreme Court has original jurisdiction over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus. While this jurisdiction is shared
with the Court of Appeals and the Regional Trial Court (RTC), a direct invocation
of this Courts jurisdiction is allowed when there are special and important
reasons therefor, clearly and especially set out in the petition, as in the present
case.The Supreme Court has original jurisdiction over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus. While this jurisdiction
is shared with the Court of Appeals and the RTC, a direct invocation of this
Courts jurisdiction is allowed when there are special and important reasons
therefor, clearly and especially set out in the petition, as in the present case. In
the consolidated petitions, petitioners invoke exemption from the observance of
the rule on hierarchy of courts in keeping with the Courts duty to determine
whether or not the other branches of government have kept themselves within
the limits of the Constitution and the laws, and that they have not abused the
discretion given to them.
Same; Same; Same; Same; Same; The general rule is that this Court shall
exercise only appellate jurisdiction over cases involving the constitutionality of a
statute, treaty or regulation. However, such rule is subject to exception, that is, in
circumstances where the Court believes that resolving the issue of
constitutionality of a law or regulation at the first instance is of paramount
importance and immediately affects the social, economic, and moral well-being of
the people.The general rule is that this Court shall exercise only appellate
jurisdiction over cases involving the constitutionality of a statute, treaty or
regulation. However, such rule is subject to exception, that is, in circumstances
where the Court believes that resolving the issue of constitutionality of a law or
regulation at the first instance is of paramount importance and immediately
affects the social, economic, and moral well-being of the people. This case falls
within the exception. An expeditious resolution of the issues raised in the
petitions is necessary. Besides, the Court has entertained a direct resort to the
Court without the requisite motion for reconsideration filed below or without
exhaustion of administrative remedies where there is an urgent necessity for the
resolution of the question and any further delay would prejudice the interests of
the government or of the petitioners and when there is an alleged violation of due
process, as in the present case.
Election Law; Commission on Elections (COMELEC); Preliminary Investigations;
Under Section 2, Rule 34 of the Comelec Rules of Procedure, provincial and city
prosecutors and their assistants are given continuing authority as deputies to
conduct preliminary investigation of complaints involving election offenses under
election laws and to prosecute the same.The constitutional grant of
prosecutorial power in the Comelec was reflected in Section 265 of Batas
Pambansa Blg. 881, otherwise known as the Omnibus Election Code, to wit:
Section 265. Prosecution.The Commission shall, through its duly authorized
legal officers, have the exclusive power to conduct preliminary investigation of all
election offenses punishable under this Code, and to prosecute the same. The
Commission may avail of the assistance of other prosecuting arms of the
government: Provided, however, That in the event that the Commission fails to
act on any complaint within four months from his filing, the complainant may file
the complaint with the office of the fiscal [public prosecutor], or with the Ministry
[Department] of Justice for proper investigation and prosecution, if warranted.
Under the above provision of law, the power to conduct preliminary investigation
is vested exclusively with the Comelec. The latter, however, was given by the
same provision of law the authority to avail itself of the assistance of other
prosecuting arms of the government. Thus, under Section 2, Rule 34 of the
Comelec Rules of Procedure, provincial and city prosecutors and their assistants
are given continuing authority as deputies to conduct preliminary investigation of
complaints involving election offenses under election laws and to prosecute the
same. The complaints may be filed directly with them or may be indorsed to them
by the petitioner or its duly authorized representatives.
Constitutional Law; Equal Protection of the Laws; The equal protection guarantee
exists to prevent undue favor or privilege; It merely requires that all persons
under like circumstances and conditions shall be treated alike both as to
privileges conferred and liabilities enforced.The equal protection guarantee
exists to prevent undue favor or privilege. It is intended to eliminate
discrimination and oppression based on inequality. Recognizing the existence of
real differences among men, it does not demand absolute equality. It merely
requires that all persons under like circumstances and conditions shall be treated
alike both as to privileges conferred and liabilities enforced.
Election Law; Preliminary Investigations; Preliminary investigation is considered
as a judicial proceeding wherein the prosecutor or investigating officer, by the
nature of his functions, acts as a quasi-judicial officer.It is settled that the
conduct of preliminary investigation is, like court proceedings, subject to the
requirements of both substantive and procedural due process. Preliminary
investigation is considered as a judicial proceeding wherein the prosecutor or
investigating officer, by the nature of his functions, acts as a quasi-judicial officer.
The authority of a prosecutor or investigating officer duly empowered to preside
over or to conduct a preliminary investigation is no less than that of a municipal
judge or even an RTC Judge.
Same; Commission on Elections (COMELEC); The Constitution envisions a truly
independent Comelec committed to ensure free, orderly, honest, peaceful, and
credible elections and to serve as the guardian of the peoples sacred right of
suffragethe citizenrys vital weapon in effecting a peaceful change of
government and in achieving and promoting political stability.Section 1, Article
IX-A of the 1987 Constitution expressly describes all the Constitutional
Commissions as independent. Although essentially executive in nature, they are
not under the control of the President of the Philippines in the discharge of their
respective functions. The Constitution envisions a truly independent Comelec
committed to ensure free, orderly, honest, peaceful, and credible elections and to
serve as the guardian of the peoples sacred right of suffragethe citizenrys vital
weapon in effecting a peaceful change of government and in achieving and
promoting political stability.
Same; Same; Preliminary Investigations; The Department of Justice (DOJ) now
conducts preliminary investigation of election offenses concurrently with the
Comelec and no longer as mere deputies.The grant of exclusive power to
investigate and prosecute cases of election offenses to the Comelec was not by
virtue of the Constitution but by the Omnibus Election Code which was eventually
amended by Section 43 of R.A. 9369. Thus, the DOJ now conducts preliminary
investigation of election offenses concurrently with the Comelec and no longer as
mere deputies. If the prosecutors had been allowed to conduct preliminary
investigation and file the necessary information by virtue only of a delegated
authority, they now have better grounds to perform such function by virtue of the
statutory grant of authority. If deputation was justified because of lack of funds
and legal officers to ensure prompt and fair investigation and prosecution of
election offenses, the same justification should be cited to justify the grant to the
other prosecuting arms of the government of such concurrent jurisdiction.
Due Process; Publication; Publication is a necessary component of procedural
due process to give as wide publicity as possible so that all persons having an
interest in the proceedings may be notified thereof.Publication is a necessary
component of procedural due process to give as wide publicity as possible so
that all persons having an interest in the proceedings may be notified thereof.
The requirement of publication is intended to satisfy the basic requirements of
due process. It is imperative for it will be the height of injustice to punish or
otherwise burden a citizen for the transgressions of a law or rule of which he had
no notice whatsoever.
Remedial Law; Civil Procedure; Forum Shopping; There can be forum shopping
when a party institutes two or more suits in different courts, either simultaneously
or successively, in order to ask the courts to rule on the same and related causes
and/or to grant the same or substantially the same reliefs on the supposition that
one or the other court would make a favorable disposition or increase a partys
chances of obtaining a favorable decision or action.Forum shopping is the act
of a party against whom an adverse judgment has been rendered in one forum,
of seeking another and possibly favorable opinion in another forum other than by
appeal or the special civil action of certiorari. There can also be forum shopping
when a party institutes two or more suits in different courts, either simultaneously
or successively, in order to ask the courts to rule on the same and related causes
and/or to grant the same or substantially the same reliefs on the supposition that
one or the other court would make a favorable disposition or increase a partys
chances of obtaining a favorable decision or action.
Election Law; Commission on Elections (COMELEC); Preliminary Investigations;
It is well-settled that the absence [or irregularity] of preliminary investigation does
not affect the courts jurisdiction over the case; Neither is it a ground to quash the
information or nullify the order of arrest issued against the accused or justify the
release of the accused from detention.It is well-settled that the absence [or
irregularity] of preliminary investigation does not affect the courts jurisdiction over
the case. Nor does it impair the validity of the criminal information or render it
defective. Dismissal is not the remedy. Neither is it a ground to quash the
information or nullify the order of arrest issued against the accused or justify the
release of the accused from detention. The proper course of action that should
be taken is to hold in abeyance the proceedings upon such information and to
remand the case for the conduct of preliminary investigation.
CARPIO,J., Separate Concurring and Dissenting Opinion:
Due Process; Publication; View that Taada v. Tuvera requires publication of
administrative rules that have the force and effect of law and the Revised
Administrative Code requires the filing of such rules with the U.P. Law Center as
facets of the constitutional guarantee of procedural due process, to prevent
surprise and prejudice to the public who are legally presumed to know the law.
Taada v. Tuvera, 136 SCRA 27 (1985) (Decision); 146 SCRA 446 (1986)
(Resolution), requires publication of administrative rules that have the force and
effect of law and the Revised Administrative Code requires the filing of such rules
with the U.P. Law Center as facets of the constitutional guarantee of procedural
due process, to prevent surprise and prejudice to the public who are legally
presumed to know the law. As the Committee Rules merely complement and
even reiterate Rule 112 of the Rules on Criminal Procedure, I do not see how
their non-publication and non-filing caused surprise or prejudice to petitioners.
BRION,J., Dissenting and Concurring Opinion:
Constitutional Law; Commission on Elections (COMELEC); View that at present,
the 1987 Constitution (as has been the case since the amendment of the 1935
Constitution) now provides that the COMELEC, like all other Constitutional
Commissions, shall be independent.At present, the 1987 Constitution (as has
been the case since the amendment of the 1935 Constitution) now provides that
the COMELEC, like all other Constitutional Commissions, shall be independent.
It provides that: Section 1. The Constitutional Commissions, which shall be
independent, are the Civil Service Commission, the Commission on Elections,
and the Commission on Audit. [emphasis ours]
Same; Same; Congress; View that Congress, a co-equal branch of government,
had no power to review the rules promulgated by the COMELEC for the
implementation of Republic Act (RA) No. 9189 or The Overseas Absentee Voting
Act of 2003.The Court ruled that Congress, a co-equal branch of government,
had no power to review the rules promulgated by the COMELEC for the
implementation of Republic Act (RA) No. 9189 or The Overseas Absentee Voting
Act of 2003, since it trample[s] upon the constitutional mandate of independence
of the COMELEC. Thus, the Court invalidated Section 25(2) of RA No. 9189.
Same; Same; Preliminary Investigations; 1993 COMELEC Rules of Procedure;
View that under the 1993 COMELEC Rules of Procedure, the Chief State
Prosecutor, all Provincial and City Fiscals, and/or their respective assistants were
given continuing authority, as deputies of the COMELEC, to conduct preliminary
investigation of complaints involving election offenses under election laws that
may be filed directly with them, or that may be indorsed to them by the
COMELEC or its duly authorized representatives and to prosecute the same.
As outlined in that case, Section 265 of Batas Pambansa Blg. 881 (BP 881) of
the Omnibus Election Code granted the COMELEC the exclusive power to
conduct preliminary investigations and prosecute election offenses. Looking then
at the practical limitations arising from such broad grant of power, Congress also
empowered the COMELEC to avail of the assistance of the prosecuting arms of
the government. Under the 1993 COMELEC Rules of Procedure, the Chief State
Prosecutor, all Provincial and City Fiscals, and/or their respective assistants were
given continuing authority, as deputies of the COMELEC, to conduct preliminary
investigation of complaints involving election offenses under election laws that
may be filed directly with them, or that may be indorsed to them by the
COMELEC or its duly authorized representatives and to prosecute the same.
Same; Same; Same; View that the COMELEC must be given considerable
latitude in the fulfillment of its duty of ensuring the prompt investigation and
prosecution of election offenses.I agree with the majority that the COMELEC
must be given considerable latitude in the fulfillment of its duty of ensuring the
prompt investigation and prosecution of election offenses. I duly acknowledge
that the COMELEC exercises considerable latitude and the widest discretion in
adopting its chosen means and methods of discharging its tasks, particularly its
broad power to enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum and recall.
Same; Same; Same; View that to discharge its duty effectively, the Constitution
endowed the COMELEC with special features which elevate it above other
investigative and prosecutorial agencies of the government.Section 2, Article
IX (C) of the Constitution specifically vests in the COMELEC the plenary power to
investigate and, where appropriate, prosecute cases of violations of election
laws, including acts or omissions constituting election frauds, offenses and
malpractices. To discharge its duty effectively, the Constitution endowed the
COMELEC with special features which elevate it above other investigative and
prosecutorial agencies of the government.
Same; Same; Same; View that under the present legal framework, the
COMELEC and the Department of Justice (DOJ), and its prosecuting arms, have
equal jurisdiction to conduct preliminary investigation and prosecute election
offenses.With respect to the power to conduct preliminary investigation and to
prosecute election offenses, Congress has mandated under Section 42 of RA No.
9369 that the COMELEC shall have the power concurrent with the other
prosecuting arms of the government, to conduct preliminary investigation of all
election offenses punishable under the Omnibus Election Code, and to prosecute
these offenses. Concurrent jurisdiction has been defined as equal jurisdiction to
deal with the same subject matter. Thus, under the present legal framework, the
COMELEC and the DOJ, and its prosecuting arms, have equal jurisdiction to
conduct preliminary investigation and prosecute election offenses. Effectively,
this means that the DOJ and its prosecuting arms can already conduct
preliminary investigations and prosecute election offenses not merely as
deputies, but independently of the COMELEC.
Same; Same; Same; View that while the COMELEC and the Department of
Justice (DOJ) have equal jurisdiction to investigate and prosecute election
offenses (subject to the rule that the body or agency that first takes cognizance of
the complaint shall exercise jurisdiction to the exclusion of the others), the
COMELECwhenever it directly acts in the fact-finding and preliminary
investigation of elections offencescan still work with the Department of Justice
(DOJ) and seek its assistance without violating its constitutionally guaranteed
independence, but it can only do so as the principal in a principal-delegate
relationship with the DOJ where the latter acts as the delegate.The only
arrangement constitutionally possible, given the independence of the COMELEC
and despite Section 42 of RA 9369, is for the DOJ to be a mere deputy or
delegate of the COMELEC and not a co-equal partner in the investigation and
prosecution of election offenses WHENEVER THE COMELEC ITSELF
DIRECTLY ACTS. While the COMELEC and the DOJ have equal jurisdiction to
investigate and prosecute election offenses (subject to the rule that the body or
agency that first takes cognizance of the complaint shall exercise jurisdiction to
the exclusion of the others), the COMELECwhenever it directly acts in the fact-
finding and preliminary investigation of elections offencescan still work with the
DOJ and seek its assistance without violating its constitutionally guaranteed
independence, but it can only do so as the principal in a principal-delegate
relationship with the DOJ where the latter acts as the delegate.
Same; Same; Same; View that in the usual course, the unconstitutionality of the
process undertaken in conducting the preliminary investigation would result in its
nullity and the absence of the necessary preliminary investigation that a criminal
information requires.In the usual course, the unconstitutionality of the process
undertaken in conducting the preliminary investigation would result in its nullity
and the absence of the necessary preliminary investigation that a criminal
information requires. Three important considerations taken together, however,
frustrate the petitioners bid to achieve this result so that the petitions ultimately
have to be dismissed.
MENDOZA,J., Concurring Opinion:
Election Law; Preliminary Investigations; Commission on Elections (COMELEC);
View that the arraignment of petitioner Gloria Macapagal Arroyo (GMA), on her
very own motion, is tantamount to her submission to the jurisdiction of the trial
court.I am in agreement with the ponencia that the arraignment of petitioner
Gloria Macapagal Arroyo (GMA), on her very own motion, is tantamount to her
submission to the jurisdiction of the trial court. The entry of her plea of not guilty
to the crime of electoral sabotage can only be deemed as a waiver of her right to
question the alleged irregularities committed during the preliminary investigation
conducted by the Joint DOJ-COMELEC Preliminary Investigation Committee,
headed by the Prosecutor General (Joint Committee) and/or Comelec.
Consequently, her own actions rendered the issues on probable cause and on
the validity of the preliminary investigation as moot and academic.
Same; Same; View that the right to a preliminary investigation is not a mere
formal or technical right but a substantive one, forming part of due process in
criminal justice.Although a preliminary investigation is not a trial and is not
intended to usurp the function of the trial court, it is not a casual affair. The right
to a preliminary investigation is not a mere formal or technical right but a
substantive one, forming part of due process in criminal justice. The prosecutor
conducting the same investigates or inquires into the facts concerning the
commission of a crime to determine whether or not an Information should be filed
against a respondent. A preliminary investigation is in effect a realistic appraisal
of the merits of the case. Sufficient proof of the guilt of the accused must be
adduced so that when the case is tried, the trial court may not be bound, as a
matter of law, to order an acquittal. A preliminary investigation has been called a
judicial inquiry; it is a judicial proceeding. An act becomes a judicial proceeding
when there is an opportunity to be heard and for the production of, and weighing
of, evidence, and a decision is rendered thereon.
Same; Same; Motion for Reconsideration; View that true, under Rule 13 of the
Comelec Rules of Procedure, a motion for reconsideration of an en banc ruling,
resolution, order or decision is generally proscribed. In election offenses cases,
however, such motions are allowed.Due process demands that the Comelec
should have given the petitioner the opportunity to submit her counter-affidavit.
And if its resolution would be adverse, as was the case, she should have been
given time to file a motion for reconsideration before the Comelec. True, under
Rule 13 of the Comelec Rules of Procedure, a motion for reconsideration of an
en banc ruling, resolution, order or decision is generally proscribed. In election
offenses cases, however, such motions are allowed.
DECISION
PERALTA, J.:
The Court is vested with the constitutional mandate to resolve justiciable
controversies by applying the rule of law with due deference to the right to due
process, irrespective of the standing in society of the parties involved. It is an
assurance that in this jurisdiction, the wheels of justice turn unimpeded by public
opinion or clamor, but only for the ultimate end of giving each and every member
of society his just due without distinction.
Before the Court are three (3) consolidated petitions and supplemental petitions
for Certiorari and Prohibition under Rule 65 of the Rules of Court filed by Jose
Miguel T. Arroyo (Mike Arroyo) in G.R. No. 199082, Benjamin S. Abalos, Sr.
(Abalos) in G.R. No. 199085 and Gloria Macapagal
Arroyo (GMA) in G.R. No. 199118 assailing the following: (1) Commission on
Elections (Comelec) Resolution No. 9266 "In the Matter of the Commission on
Elections and Department of Justice Joint Investigation on the Alleged Election
Offenses Committed during the 2004 and 2007 Elections Pursuant to
Law"1 dated August 2, 2011; (2) Joint Order No. 001-2011 (Joint Order) "Creating
and Constituting a Joint DOJ-Comelec Preliminary Investigation Committee [Joint
Committee] and Fact-Finding Team on the 2004 and 2007 National Elections
Electoral Fraud and
Manipulation Cases"2 dated August 15, 2011; (3) Rules of Procedure on the
Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004
and 2007 National Elections (Joint Committee Rules of Procedure) 3 dated August
23, 2011; and (4) Initial Report of the Fact-Finding Team dated October 20,
2011.4 The consolidated petitions and supplemental petitions likewise assail the
validity of the proceedings undertaken pursuant to the aforesaid issuances.
The Antecedents
Acting on the discovery of alleged new evidence and the surfacing of new
witnesses indicating the occurrence of massive electoral fraud and manipulation
of election results in the 2004 and 2007 National Elections, on August 2, 2011,
the Comelec issued Resolution No. 9266 approving the creation of a committee
jointly with the Department of Justice (DOJ), which shall conduct preliminary
investigation on the alleged election offenses and anomalies committed during
the 2004 and 2007 elections.5
On August 4, 2011, the Secretary of Justice issued Department Order No.
6406 naming three (3) of its prosecutors to the Joint Committee.
On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011
creating and constituting a Joint Committee and Fact-Finding Team on the 2004
and 2007 National Elections electoral fraud and manipulation cases. The Joint
Committee and the Fact-Finding Team are composed of officials from the DOJ
and the Comelec. Section 2 of the Joint Order lays down the mandate of the
Joint Committee, to wit:
Section 2. Mandate. The Committee shall conduct the necessary preliminary
investigation on the basis of the evidence gathered and the charges
recommended by the Fact-Finding Team created and referred to in Section 4
hereof. Resolutions finding probable cause for election offenses, defined and
penalized under the Omnibus Election Code and other election laws shall be
approved by the Comelec in accordance with the Comelec Rules of Procedure.
For other offenses, or those not covered by the Omnibus Election Code and
other election laws, the corresponding criminal information may be filed directly
with the appropriate courts.7
The Fact-Finding Team,8 on the other hand, was created for the purpose of
gathering real, documentary, and testimonial evidence which can be utilized in
the preliminary investigation to be conducted by the Joint Committee. Its specific
duties and functions as enumerated in Section 4 of the Joint Order are as
follows:
a) Gather and document reports, intelligence information, and
investigative leads from official as well as unofficial sources and
informants;
b) Conduct interviews, record testimonies, take affidavits of witnesses,
and collate material and relevant documentary evidence, such as, but not
limited to, election documents used in the 2004 and 2007 national
elections. For security reasons, or to protect the identities of informants,
the Fact-Finding Team may conduct interviews or document testimonies
discreetly;
c) Assess and evaluate affidavits already executed and other
documentary evidence submitted or may be submitted to the Fact-
Finding Team and/or Committee;
d) Identify the offenders, their offenses and the manner of their
commission, individually or in conspiracy, and the provisions of election
and general criminal laws violated, establish evidence for individual
criminal and administrative liability and prosecution, and prepare the
necessary documentation, such as complaints and charge sheets for the
initiation of preliminary investigation proceedings against said individuals
to be conducted by the Committee;
e) Regularly submit to the Committee, the Secretary of Justice and the
Chairman of the Comelec periodic reports and recommendations,
supported by real, testimonial and documentary evidence, which may
then serve as the Committees basis for immediately commencing
appropriate preliminary investigation proceedings, as provided under
Section 6 of this Joint Order; and
f) Upon the termination of its investigation, make a full and final report to
the Committee, the Secretary of Justice, and the Chairman of the
Comelec.9
Pursuant to Section 710 of the Joint Order, on August 23, 2011, the Joint
Committee promulgated its Rules of Procedure.
The members of the Fact-Finding Team unanimously agreed that the subject of
the Initial Report would be the electoral fraud and manipulation of election results
allegedly committed during the May 14, 2007 elections. Thus, in its Initial
Report11 dated October 20, 2011, the Fact-Finding Team concluded that
manipulation of the results in the May 14, 2007 senatorial elections in the
provinces of North and South Cotabato and Maguindanao were indeed
perpetrated.12 The Fact-Finding Team recommended that petitioner Abalos and
ten (10) others13 be subjected to preliminary investigation for electoral sabotage
for conspiring to manipulate the election results in North and South Cotabato.
Twenty-six (26)14 persons, including petitioners GMA and Abalos, were likewise
recommended for preliminary investigation for electoral sabotage for
manipulating the election results in Maguindanao.15 Several persons were also
recommended to be charged administratively, while others, 16 including petitioner
Mike Arroyo, were recommended to be subjected to further investigation. 17 The
case resulting from the investigation of the Fact-Finding Team was docketed as
DOJ-Comelec Case No. 001-2011.
Meanwhile, on October 17, 2011, Senator Aquilino Pimentel III (Senator
Pimentel) filed a Complaint-Affidavit18 for Electoral Sabotage against petitioners
and twelve others19 and several John Does and Jane Does. The case was
docketed as DOJ-Comelec Case No. 002-2011.
On October 24, 2011, the Joint Committee issued two subpoenas against
petitioners in DOJ-Comelec Case Nos. 001-2011 and 002-2011. 20 On November
3, 2011, petitioners, through counsel, appeared before the Joint Committee. 21On
that preliminary hearing, the Joint Committee consolidated the two DOJ-Comelec
cases. Respondents therein were likewise ordered to submit their Counter-
Affidavits by November 14, 2011.22
Thereafter, petitioners filed before the Court separate Petitions for Certiorari and
Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO)
and/or Writ of Preliminary Injunction assailing the creation of the Joint
Panel.23 The petitions were eventually consolidated.
On November 14, 2011, petitioner Mike Arroyo filed a Motion to Defer
Proceedings24 before the Joint Committee, in view of the pendency of his petition
before the Court. On the same day, petitioner GMA filed before the Joint
Committee an Omnibus Motion Ad Cautelam25 to require Senator Pimentel to
furnish her with documents referred to in his complaint-affidavit and for the
production of election documents as basis for the charge of electoral sabotage.
GMA contended that for the crime of electoral sabotage to be established, there
is a need to present election documents allegedly tampered which resulted in the
increase or decrease in the number of votes of local and national
candidates.26 GMA prayed that she be allowed to file her counter-affidavit within
ten (10) days from receipt of the requested documents. 27 Petitioner Abalos, for
his part, filed a Motion to Suspend Proceedings (Ex Abundante Ad
Cautelam),28 in view of the pendency of his petition brought before the Court.
In an Order29 dated November 15, 2011, the Joint Committee denied the
aforesaid motions of petitioners. GMA subsequently filed a motion for
reconsideration.30
On November 16, 2011, the Joint Committee promulgated a Joint Resolution
which was later indorsed to the Comelec.31 On November 18, 2011, after
conducting a special session, the Comelec en banc issued a
Resolution32approving and adopting the Joint Resolution subject to modifications.
The dispositive portion of the Comelec Resolution reads:
WHEREFORE, premises considered, the Resolution of the Joint DOJ-COMELEC
Preliminary Investigation Committee in DOJ-COMELEC Case No. 001-2011 and
DOJ-COMELEC Case No. 002-2011, upon the recommendation of the
COMELECs own representatives in the Committee, is hereby APPROVED and
ADOPTED, subject to the following MODIFICATIONS:
1. That information/s for the crime of ELECTORAL SABOTAGE under
Section 42 (b) of R.A. 9369, amending Section 27 (b) of R.A. 6646, be
filed against GLORIA MACAPAGAL-ARROYO, BENJAMIN ABALOS,
SR., LINTANG H. BEDOL, DATU ANDAL AMPATUAN, SR. and PETER
REYES;
2. That the charges against MICHAEL C. ABAS, NICODEMO FERRER,
REUBEN BASIAO, JAIME PAZ and NORIE K. UNAS be subjected to
further investigation;
3. That the charges against JOSE MIGUEL T. ARROYO, BONG
SERRANO, ALBERTO AGRA, ANDREI BON TAGUM, GABBY
CLAUDIO, ROMY DAYDAY, JEREMY JAVIER, JOHN DOE a.k.a
BUTCH, be DISMISSED for insufficiency of evidence to establish
probable cause;
4. That the recommendation that ESTELITA B. ORBASE, ELIZA A.
GASMIN, ELSA Z. ATINEN, SALIAO S. AMBA, MAGSAYSAY B.
MOHAMAD, SALONGA K. EDZELA, RAGAH D. AYUNAN, SUSAN U.
CANANBAN, RUSSAM H. MABANG, ASUNCION CORAZON P.
RENIEDO, NENA A. ALID, MA. SUSAN L. ALBANO, ROHAIDA T.
KHALID, ARAW M. CAO, JEEHAN S. NUR, ALICE A. LIM, NORIJEAN P.
HANGKAL, CHRISTINA ROAN M. DALOPE, and MACEDA L. ABO be
administratively charged be subjected to further review by this
Commission to determine the appropriate charge/s that may be filed
against them;
5. That the findings of lack of probable cause against LILIAN S. SUAN-
RADAM and YOGIE G. MARTIRIZAR be REJECTED by reason of the
pendency of their respective cases before the Regional Trial Court of
Pasay (Branch 114) and this Commission for the same offense under
consideration.
In the higher interest of justice and by reason of manifest attempts to frustrate the
governments right to prosecute and to obtain speedy disposition of the present
case pending before the Commission, the Law Department and/or any
COMELEC legal officers as may be authorized by this Commission is hereby
ORDERED to IMMEDIATELY PREPARE and FILE the necessary Information/s
before the appropriate court/s
SO ORDERED.33 (Emphasis supplied.)
On even date, pursuant to the above Resolution, the Comelecs Law Department
filed with the Regional Trial Court (RTC), Pasay City, an Information against
petitioner GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H. Bedol, for
violation of Section 42 (b)(3) of Republic Act (R.A.) No. 9369, amending Section
27 (b) of R.A. No. 6646, docketed as Criminal Case No. RPSY-11-04432-
CR.34 The case was raffled to Branch 112 and the corresponding Warrant of
Arrest was issued which was served on GMA on the same day.35
On November 18, 2011, petitioner GMA filed with the RTC an Urgent Omnibus
Motion Ad Cautelam36 with leave to allow the Joint Committee to resolve the
motion for reconsideration filed by GMA, to defer issuance of a warrant of arrest
and a Hold Departure Order, and to proceed to judicial determination of probable
cause. She, likewise, filed with the Comelec a Motion to Vacate Ad
Cautelam37 praying that its Resolution be vacated for being null and void. The
RTC nonetheless issued a warrant for her arrest which was duly served. GMA
thereafter filed a Motion for Bail which was granted.
Issues
In G.R. No. 199082, petitioner Arroyo relies on the following grounds:
A. THE CREATION OF THE JOINT COMMITTEE VIA THE JOINT
ORDER IS AT WAR WITH THE DUE PROCESS AND EQUAL
PROTECTION CLAUSE OF THE CONSTITUTION, HAVING BEEN
CREATED WITH THE SOLE END IN VIEW OF INVESTIGATING AND
PROSECUTING CERTAIN PERSONS AND INCIDENTS ONLY,
SPECIFICALLY THOSE INVOLVING THE 2004 AND 2007 ELECTIONS
TO THE EXCLUSION OF OTHERS, IN VIOLATION OF THE DOCTRINE
IN BIRAOGO V. TRUTH COMMISSION AND COMPANION CASE.
B. NO LAW OR RULE AUTHORIZES THE JOINT COMMITTEE TO
CONDUCT PRELIMINARY INVESTIGATION.
C. THE CREATION OF THE JOINT COMMITTEE, WHICH FUSES THE
COMMISSION ON ELECTIONS - A CONSTITUTIONALLY
INDEPENDENT BODY - WITH THE DEPARTMENT OF JUSTICE A
POLITICAL AGENT OF THE EXECUTIVE DEMOLISHES THE
INDEPENDENCE OF THE COMMISSION ON ELECTIONS AS
PROVIDED IN ARTICLE IX(A), SECTIONS 1 AND 2 AND IX(C) OF THE
CONSTITUTION.
D. IN VIEW OF THE NUMEROUS AND PERSISTENT PUBLIC
PRONOUNCEMENTS OF THE PRESIDENT, HIS SPOKESPERSONS,
THE HEADS OF THE DOJ AND THE COMELEC, AND MEMBERS OF
THE JOINT COMMITTEE THAT CASES SHOULD BE FILED AGAINST
PETITIONER AND HIS FAMILY AND ALLEGED ASSOCIATES BY THE
END OF 2011, THE PROCEEDINGS THEREOF SHOULD BE
ENJOINED FOR BEING PERSECUTORY, PURSUANT TO ALLADO V.
DIOKNO AND RELATED CASES.
 E. THE CREATION AND CONSTITUTION OF THE JOINT COMMITTEE
TRAMPLES UPON PETITIONERS RIGHT TO A FAIR PROCEEDING
BY AN INDEPENDENT AND IMPARTIAL TRIBUNAL.
F. THE COMELEC, AND SUBSEQUENTLY, THE RTC OF PASAY CITY,
HAVE ASSUMED JURISDICTION OVER THE SUBJECT MATTER
SOUGHT TO BE INVESTIGATED BY THE JOINT COMMITTEE, TO
THE EXCLUSION OF ANY BODY, INCLUDING THE JOINT
COMMITTEE.38
In G.R. No. 199085, petitioner Abalos raises the following issues:
I.
DOES JOINT ORDER NO. 001-2011, CREATING THE JOINT DOJ-
COMELEC FACT-FINDING TEAM AND PRELIMINARY INVESTIGATON
COMMITTEE VIOLATE PETITIONERS CONSTITUTIONAL RIGHT TO
EQUAL PROTECTION OF THE LAW?
II.
DID THE CONDUCT AND PROCEEDINGS OF THE JOINT DOJ-
COMELEC FACT-FINDING TEAM AND PRELIMINARY
INVESTIGATION COMMITTEE VIOLATE PETITIONERS
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW?
III.
DID THE DOJ AND COMELEC VIOLATE THE PRINCIPLE OF
SEPARATION OF POWERS BY CREATING THE JOINT DOJ-
COMELEC FACT-FINDING TEAM AND PRELIMINARY
INVESTIGATION COMMITTEE WHICH ENCROACHED UPON THE
POWERS OF THE LEGISLATURE AND THE REGIONAL TRIAL
COURT?
IV.
DOES THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND
PRELIMINARY INVESTIGATION COMMITTEE HAVE THE POWER
AND LEGAL AUTHORITY TO CONDUCT A PRELIMINARY
INVESTIGATION OF THE SAME ELECTORAL SABOTAGE CASES
WHICH THE COMELEC HAD ALREADY TAKEN COGNIZANCE OF?39
In G.R. No. 199118, petitioner GMA anchors her petition on the following
grounds:
I. THE EXECUTIVE DEPARTMENT, THROUGH THE DOJ,
OSTENSIBLY ACTING "JOINTLY" WITH THE COMELEC, HAS ACTED
BEYOND THE LIMITS OF THE CONSTITUTION, IN THAT IT HAS
COMPROMISED THE INDEPENDENCE OF THE COMELEC.
II. THE COMELEC HAS EFFECTIVELY ABDICATED ITS
CONSTITUTIONAL MANDATE "TO INVESTIGATE AND, WHERE
APPROPRIATE, PROSECUTE CASES OF VIOLATIONS OF ELECTION
LAWS, INCLUDING ACTS OR OMISSIONS CONSTITUTING
ELECTION FRAUDS, OFFENSES, AND MALPRACTICES" (ARTICLE
IX-C, SECTION 26, 1987 CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES) IN FAVOR OF THE EXECUTIVE DEPARTMENT,
ACTING THROUGH RESPONDENT JUSTICE SECRETARY DE LIMA.
III. DOJ-COMELEC JOINT ORDER NO. 001-2011 AND THE JOINT
COMMITTEE RULES HAVE NOT BEEN PUBLISHED PURSUANT TO
TAADA V. TUVERA, G.R. No. L-63915 (29 DECEMBER 1986). AFTER
ALL, AS THE HONORABLE COURT LIKEWISE DECLARED IN
REPUBLIC V. PILIPINAS SHELL PETROLEUM CORPORATION, G.R.
No. 173918 (08 APRIL 2008), (SIC)40
We deferred the resolution of petitioners Motion for the Issuance of a TRO and,
instead, required the respondents to comment on the petitions. 41
We likewise scheduled the consolidated cases for oral argument for which the
parties were directed to limit their respective discussions to the following issues:
I. Whether or not Joint Order No. 001-2011 "Creating and Constituting a Joint
DOJ-COMELEC Preliminary Investigation Committee and Fact-Finding Team on
the 2004 and 2007 National Elections Electoral Fraud and Manipulation Cases"
is constitutional in light of the following:
A. The due process clause of the 1987 Constitution
B. The equal protection clause of the 1987 Constitution
C. The principle of separation of powers
D. The independence of the COMELEC as a constitutional body
II. Whether or not the COMELEC has jurisdiction under the law to conduct
preliminary investigation jointly with the DOJ.
A. Whether or not due process was observed by the Joint DOJ-COMELEC Fact-
Finding Team and Preliminary Investigation Committee, and the COMELEC in
the conduct of the preliminary investigation and approval of the Joint Panels
Resolution.42
The Court, thereafter, required the parties to submit their respective
Memoranda.43
The Courts Ruling
Procedural Issues
Respondents claim that Mike Arroyos petition is moot and that of GMA is moot
and academic. They explain that the Mike Arroyo petition presents no actual
controversy that necessitates the exercise by the Court of its power of judicial
review, considering that he was not among those indicted for electoral sabotage
in the 2007 national elections as the Comelec dismissed the case against him for
insufficiency of evidence.44 Anent the 2004 national elections, the Fact-Finding
Team is yet to complete its investigation so Mike Arroyos apprehensions are
merely speculative and anticipatory.45 As to the GMA petition, respondents aver
that any judgment of the Court will have no practical legal effect because an
Information has already been filed against her in Branch 112, RTC of Pasay
City.46 With the filing of the Information, the RTC has already acquired jurisdiction
over the case, including all issues relating to the constitutionality or legality of her
preliminary investigation.47 Respondents also claim that the issues relating to the
constitutionality and validity of the conduct of the preliminary investigation of
GMA are best left to the trial court, considering that it involves questions of
fact.48 Respondents add that considering that the RTC has concurrent jurisdiction
to determine a constitutional issue, it will be practical for the Court to allow the
RTC to determine the constitutional issues in this case.49
We do not agree.
Mootness
It cannot be gainsaid that for a court to exercise its power of adjudication, there
must be an actual case or controversy, that is, one which involves a conflict of
legal rights, an assertion of opposite legal claims susceptible of judicial
resolution.50 The case must not be moot or academic or based on extra-legal or
other similar considerations not cognizable by a court of justice. 51
A case becomes moot and academic when it ceases to present a justiciable
controversy so that a declaration on the issue would be of no practical use or
value.52 However, a case should not be dismissed simply because one of the
issues raised therein had become moot and academic by the onset of a
supervening event, whether intended or incidental, if there are other causes
which need to be resolved after trial.53
Here, the consolidated cases are not rendered moot and academic by the
promulgation of the Joint Resolution by the Joint Committee and the approval
thereof by the Comelec. It must be recalled that the main issues in the three
petitions before us are the constitutionality and legality of the creation of the Joint
Committee and the Fact-Finding Team as well as the proceedings undertaken
pursuant thereto. The assailed Joint Order specifically provides that the Joint
Committee was created for purposes of investigating the alleged massive
electoral fraud during the 2004 and 2007 national elections. However, in the
Fact-Finding Teams Initial Report, the team specifically agreed that the report
would focus on the irregularities during the 2007 elections. Also, in its November
18, 2011 Resolution, the Comelec, while directing the filing of information against
petitioners Abalos and GMA, ordered that further investigations be conducted
against the other respondents therein. Apparently, the Fact-Finding Teams and
Joint
Committees respective mandates have not been fulfilled and they are, therefore,
bound to continue discharging their duties set forth in the assailed Joint Order.
Moreover, petitioners question the validity of the proceedings undertaken by the
Fact-Finding Team and the Joint Committee leading to the filing of information, on
constitutional grounds. We are not, therefore, barred from deciding on the
petitions simply by the occurrence of the supervening events of filing an
information and dismissal of the charges.
Jurisdiction over the validity of the
conduct of the preliminary investigation
This is not the first time that the Court is confronted with the issue of jurisdiction
to conduct preliminary investigation and at the same time with the propriety of the
conduct of preliminary investigation. In Cojuangco, Jr. v. Presidential Commission
on Good Government (PCGG),54 the Court resolved two issues, namely: (1)
whether or not the PCGG has the power to conduct a preliminary investigation of
the anti-graft and corruption cases filed by the Solicitor General against Eduardo
Conjuangco, Jr. and other respondents for the alleged misuse of coconut levy
funds; and (2) on the assumption that it has jurisdiction to conduct such a
preliminary investigation, whether or not its conduct constitutes a violation of
petitioners right to due process and equal protection of the law.55 The Court
decided these issues notwithstanding the fact that Informations had already been
filed with the trial court.
In Allado v. Diokno,56 in a petition for certiorari assailing the propriety of the
issuance of a warrant of arrest, the Court could not ignore the undue haste in the
filing of the information and the inordinate interest of the government in filing the
same. Thus, this Court took time to determine whether or not there was, indeed,
probable cause to warrant the filing of information. This, notwithstanding the fact
that information had been filed and a warrant of arrest had been issued.
Petitioners therein came directly to this Court and sought relief to rectify the
injustice that they suffered.
Hierarchy of courts
Neither can the petitions be dismissed solely because of violation of the principle
of hierarchy of courts. This principle requires that recourse must first be made to
the lower-ranked court exercising concurrent jurisdiction with a higher
court.57 The Supreme Court has original jurisdiction over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus. While this jurisdiction
is shared with the Court of Appeals and the RTC, a direct invocation of this
Courts jurisdiction is allowed when there are special and important reasons
therefor, clearly and especially set out in the petition, as in the present case. 58 In
the consolidated petitions, petitioners invoke exemption from the observance of
the rule on hierarchy of courts in keeping with the Courts duty to determine
whether or not the other branches of government have kept themselves within
the limits of the Constitution and the laws, and that they have not abused the
discretion given to them.59
It is noteworthy that the consolidated petitions assail the constitutionality of
issuances and resolutions of the DOJ and the Comelec. The general rule is that
this Court shall exercise only appellate jurisdiction over cases involving the
constitutionality of a statute, treaty or regulation.
However, such rule is subject to exception, that is, in circumstances where the
Court believes that resolving the issue of constitutionality of a law or regulation at
the first instance is of paramount importance and immediately affects the social,
economic, and moral well-being of the people.60
This case falls within the exception. An expeditious resolution of the issues raised
in the petitions is necessary. Besides, the Court has entertained a direct resort to
the Court without the requisite motion for reconsideration filed below or without
exhaustion of administrative remedies where there is an urgent necessity for the
resolution of the question and any further delay would prejudice the interests of
the government or of the petitioners and when there is an alleged violation of due
process, as in the present case.61 We apply the same relaxation of the Rules in
the present case and, thus, entertain direct resort to this Court.
Substantive Issues
Bases for the Creation of the
Fact-Finding Team and Joint Committee
Section 2, Article IX-C of the 1987 Constitution enumerates the powers and
functions of the Comelec. Paragraph (6) thereof vests in the Comelec the power
to:
(6) File, upon a verified complaint, or on its own initiative, petitions in court for
inclusion or exclusion of voters; investigate and, where appropriate, prosecute
cases of violations of election laws, including acts or omissions constituting
election frauds, offenses, and malpractices.
This was an important innovation introduced by the 1987 Constitution, because
the above-quoted provision was not in the 1935 and 1973 Constitutions. 62
The grant to the Comelec of the power to investigate and prosecute election
offenses as an adjunct to the enforcement and administration of all election laws
is intended to enable the Comelec to effectively insure to the people the free,
orderly, and honest conduct of elections. The failure of the Comelec to exercise
this power could result in the frustration of the true will of the people and make a
mere idle ceremony of the sacred right and duty of every qualified citizen to
vote.63
The constitutional grant of prosecutorial power in the Comelec was reflected in
Section 265 of Batas Pambansa Blg. 881, otherwise known as the Omnibus
Election Code, to wit:
Section 265. Prosecution. The Commission shall, through its duly authorized
legal officers, have the exclusive power to conduct preliminary investigation of all
election offenses punishable under this Code, and to prosecute the same. The
Commission may avail of the assistance of other prosecuting arms of the
government: Provided, however, That in the event that the Commission fails to
act on any complaint within four months from his filing, the complainant may file
the complaint with the office of the fiscal [public prosecutor], or with the Ministry
Department of Justice for proper investigation and prosecution, if warranted.
Under the above provision of law, the power to conduct preliminary investigation
is vested exclusively with the Comelec. The latter, however, was given by the
same provision of law the authority to avail itself of the assistance of other
prosecuting arms of the government.64 Thus, under Section 2,65 Rule 34 of the
Comelec Rules of Procedure, provincial and city prosecutors and their assistants
are given continuing authority as deputies to conduct preliminary investigation of
complaints involving election offenses under election laws and to prosecute the
same. The complaints may be filed directly with them or may be indorsed to them
by the petitioner or its duly authorized representatives. 66
Thus, under the Omnibus Election Code, while the exclusive jurisdiction to
conduct preliminary investigation had been lodged with the Comelec, the
prosecutors had been conducting preliminary investigations pursuant to the
continuing delegated authority given by the Comelec. The reason for this
delegation of authority has been explained in Commission on Elections v.
Espaol:67
The deputation of the Provincial and City Prosecutors is necessitated by the
need for prompt investigation and dispensation of election cases as an
indispensable part of the task of securing fine, orderly, honest, peaceful and
credible elections. Enfeebled by lack of funds and the magnitude of its workload,
the petitioner does not have a sufficient number of legal officers to conduct such
investigation and to prosecute such cases.68
Moreover, as we acknowledged in People v. Basilla,69 the prompt and fair
investigation and prosecution of election offenses committed before or in the
course of nationwide elections would simply not be possible without the
assistance of provincial and city fiscals prosecutors and their assistants and staff
members, and of the state prosecutors of the DOJ.70
Section 265 of the Omnibus Election Code was amended by Section 43 of R.A.
No. 9369,71 which reads:
Section 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended to read
as follows:
SEC. 265. Prosecution. The Commission shall, through its duly authorized legal
officers, have the power, concurrent with the other prosecuting arms of the
government, to conduct preliminary investigation of all election offenses
punishable under this Code, and to prosecute the same. 72
As clearly set forth above, instead of a mere delegated authority, the other
prosecuting arms of the government, such as the DOJ, now exercise concurrent
jurisdiction with the Comelec to conduct preliminary investigation of all election
offenses and to prosecute the same.
It is, therefore, not only the power but the duty of both the Comelec and the DOJ
to perform any act necessary to ensure the prompt and fair investigation and
prosecution of election offenses. Pursuant to the above constitutional and
statutory provisions, and as will be explained further below, we find no
impediment for the Comelec and the DOJ to create the Joint Committee and
Fact-Finding Team for the purpose of conducting a thorough investigation of the
alleged massive electoral fraud and the manipulation of election results in the
2004 and 2007 national elections relating in particular to the presidential and
senatorial elections.73
Constitutionality of Joint-Order No. 001-2011
A. Equal Protection Clause
Petitioners claim that the creation of the Joint Committee and Fact-Finding Team
is in violation of the equal protection clause of the Constitution because its sole
purpose is the investigation and prosecution of certain persons and incidents.
They argue that there is no substantial distinction between the allegations of
massive electoral fraud in 2004 and 2007, on the one hand, and previous and
subsequent national elections, on the other hand; and no substantial distinction
between petitioners and the other persons or public officials who might have
been involved in previous election offenses. They insist that the Joint Panel was
created to target only the Arroyo Administration as well as public officials linked to
the Arroyo Administration. To bolster their claim, petitioners explain that Joint
Order No. 001-2011 is similar to Executive Order No. 1 (creating the Philippine
Truth Commission) which this Court had already nullified for being
violative of the equal protection clause.
Respondents, however, refute the above contentions and argue that the wide
array of the possible election offenses and broad spectrum of individuals who
may have committed them, if any, immediately negate the assertion that the
assailed orders are aimed only at the officials of the Arroyo Administration.
We agree with the respondents.
The equal protection clause is enshrined in Section 1, Article III of the
Constitution which reads:
Section 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws. 74
The concept of equal protection has been laid down in Biraogo v. Philippine Truth
Commission of 2010:75
One of the basic principles on which this government was founded is that of the
equality of right which is embodied in Section 1, Article III of the 1987
Constitution. The equal protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the requirements of justice and
fair play. It has been embodied in a separate clause, however, to provide for a
more specific guaranty against any form of undue favoritism or hostility from the
government. Arbitrariness in general may be challenged on the basis of the due
process clause. But if the particular act assailed partakes of an unwarranted
partiality or prejudice, the sharper weapon to cut it down is the equal protection
clause.
According to a long line of decisions, equal protection simply requires that all
persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed. It requires public bodies and institutions
to treat similarly-situated individuals in a similar manner. The purpose of the
equal protection clause is to secure every person within a state's jurisdiction
against intentional and arbitrary discrimination, whether occasioned by the
express terms of a statute or by its improper execution through the state's duly-
constituted authorities. In other words, the concept of equal justice under the law
requires the state to govern impartially, and it may not draw distinctions between
individuals solely on differences that are irrelevant to a legitimate governmental
objective.76
Unlike the matter addressed by the Courts ruling in Biraogo v. Philippine Truth
Commission of 2010, Joint Order No. 001-2011 cannot be nullified on the ground
that it singles out the officials of the Arroyo Administration and, therefore, it
infringes the equal protection clause. The Philippine Truth Commission of 2010
was expressly created for the purpose of investigating alleged graft and
corruption during the Arroyo Administration since Executive Order No.
177 specifically referred to the "previous administration"; while the Joint
Committee was created for the purpose of conducting preliminary investigation of
election offenses during the 2004 and 2007 elections. While GMA and Mike
Arroyo were among those subjected to preliminary investigation, not all
respondents therein were linked to GMA as there were public officers who were
investigated upon in connection with their acts in the performance of their official
duties. Private individuals were also subjected to the investigation by the Joint
Committee.
The equal protection guarantee exists to prevent undue favor or privilege. It is
intended to eliminate discrimination and oppression based on inequality.
Recognizing the existence of real differences among men, it does not demand
absolute equality. It merely requires that all persons under like circumstances and
conditions shall be treated alike both as to privileges conferred and liabilities
enforced.78
We once held that the Office of the Ombudsman is granted virtually plenary
investigatory powers by the Constitution and by law and thus may, for every
particular investigation, whether commenced by complaint or on its own initiative,
decide how best to pursue each investigation. Since the Office of the
Ombudsman is granted such latitude, its varying treatment of similarly situated
investigations cannot by itself be considered a violation of any of the parties
rights to the equal protection of the laws.79 This same doctrine should likewise
apply in the present case.
Thus, as the constitutional body granted with the broad power of enforcing and
administering all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall, 80 and tasked to ensure free, orderly,
honest, peaceful, and credible elections,81 the Comelec has the authority to
determine how best to perform such constitutional mandate. Pursuant to this
authority, the Comelec issues various resolutions prior to every local or national
elections setting forth the guidelines to be observed in the conduct of the
elections. This shows that every election is distinct and requires different
guidelines in order to ensure that the rules are updated to respond to existing
circumstances.
Moreover, as has been practiced in the past, complaints for violations of election
laws may be filed either with the Comelec or with the DOJ. The Comelec may
even initiate, motu proprio, complaints for election offenses. 82
Pursuant to law and the Comelecs own Rules, investigations may be conducted
either by the Comelec itself through its law department or through the
prosecutors of the DOJ. These varying procedures and treatment do not,
however, mean that respondents are not treated alike. Thus, petitioners
insistence of infringement of their constitutional right to equal protection of the
law is misplaced.
B. Due Process
Petitioners claim that the Joint Panel does not possess the required cold
neutrality of an impartial judge because it is all at once the evidence-gatherer,
prosecutor and judge. They explain that since the Fact-Finding Team has found
probable cause to subject them to preliminary investigation, it is impossible for
the Joint Committee to arrive at an opposite conclusion. Petitioners likewise
express doubts of any possibility that the Joint Committee will be fair and
impartial to them as Secretary De Lima and Chairman Brillantes had repeatedly
expressed prejudgment against petitioners through their statements captured by
the media.
For their part, respondents contend that petitioners failed to present proof that
the President of the Philippines, Secretary of Justice, and Chairman of the
Comelec actually made the statements allegedly prejudging their case and in the
context in which they interpreted them. They likewise contend that assuming that
said statements were made, there was no showing that Secretary De Lima had
tried to intervene in the investigation to influence its outcome nor was it proven
that the Joint Committee itself had prejudged the case. Lastly, they point out that
Joint Order No. 001-2011 created two bodies, the Fact-Finding Team and the
Joint Committee, with their respective mandates. Hence, they cannot be
considered as one.
We find for respondents.
It is settled that the conduct of preliminary investigation is, like court proceedings,
subject to the requirements of both substantive and procedural due
process.83 Preliminary investigation is considered as a judicial proceeding
wherein the prosecutor or investigating officer, by the nature of his functions, acts
as a quasi-judicial officer.84 The authority of a prosecutor or investigating officer
duly empowered to preside over or to conduct a preliminary investigation is no
less than that of a municipal judge or even an RTC Judge. 85 Thus, as
emphasized by the Court in Ladlad v. Velasco:86
x x x We cannot emphasize too strongly that prosecutors should not allow, and
should avoid, giving the impression that their noble office is being used or
prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or
subversive of, the basic and fundamental objective of serving the interest of
justice evenhandedly, without fear or favor to any and all litigants alike, whether
rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the
established procedure may public's perception of the impartiality of the
prosecutor be enhanced.87
In this case, as correctly pointed out by respondents, there was no showing that
the statements claimed to have prejudged the case against petitioners were
made by Secretary De Lima and Chairman Brillantes or were in the prejudicial
context in which petitioners claimed the statements were made. A reading of the
statements allegedly made by them reveals that they were just responding to
hypothetical questions in the event that probable cause would eventually be
found by the Joint Committee.
More importantly, there was no proof or even an allegation that the Joint
Committee itself, tasked to conduct the requisite preliminary investigation against
petitioners, made biased statements that would convey to the public that the
members were favoring a particular party. Neither did the petitioners show that
the President of the Philippines, the Secretary of Justice or the Chairman of the
Comelec intervened in the conduct of the preliminary investigation or exerted
undue pressure on their subordinates to tailor their decision with their public
declarations and adhere to a pre-determined result.88 Moreover, insofar as the
Comelec is concerned, it must be emphasized that the constitutional body is
collegial. The act of the head of a collegial body cannot be considered as that of
the entire body itself.89 In equating the alleged bias of the above-named officials
with that of the Joint Committee, there would be no arm of the government
credible enough to conduct a preliminary investigation. 90
It must also be emphasized that Joint Order No. 001-2011 created two bodies,
namely: (1) the Fact-Finding Team tasked to gather real, documentary and
testimonial evidence which can be utilized in the preliminary investigation to be
conducted by the Joint Committee; and (2) the Joint Committee mandated to
conduct preliminary investigation. It is, therefore, inaccurate to say that there is
only one body which acted as evidence-gatherer, prosecutor and judge.
C. Separation of powers
Petitioners claim that the Joint Panel is a new public office as shown by its
composition, the creation of its own Rules of Procedure, and the source of
funding for its operation. It is their position that the power of the DOJ to
investigate the commission of crimes and the Comelecs constitutional mandate
to investigate and prosecute violations of election laws do not include the power
to create a new public office in the guise of a joint committee. Thus, in creating
the Joint Panel, the DOJ and the Comelec encroached upon the power of the
Legislature to create public office.
Respondents dispute this and contend that the Joint Committee and Fact-Finding
Team are not new public offices, but merely collaborations between two existing
government agencies sharing concurrent jurisdiction. This is shown by the fact
that the members of the Joint Panel are existing officers of the DOJ and the
Comelec who exercise duties and functions that are already vested in them.
Again, we agree with respondents.
As clearly explained above, the Comelec is granted the power to investigate, and
where appropriate, prosecute cases of election offenses. This is necessary in
ensuring free, orderly, honest, peaceful and credible elections. On the other
hand, the DOJ is mandated to administer the criminal justice system in
accordance with the accepted processes thereof consisting in the investigation of
the crimes, prosecution of offenders and administration of the correctional
system.91 It is specifically empowered to "investigate the commission of crimes,
prosecute offenders and administer the probation and correction system." 92 Also,
the provincial or city prosecutors and their assistants, as well as the national and
regional state prosecutors, are specifically named as the officers authorized to
conduct preliminary investigation.93 Recently, the Comelec, through its duly
authorized legal offices, is given the power, concurrent with the other prosecuting
arms of the government such as the DOJ, to conduct preliminary investigation of
all election offenses.94
Undoubtedly, it is the Constitution, statutes, and the Rules of Court and not the
assailed Joint Order which give the DOJ and the Comelec the power to conduct
preliminary investigation. No new power is given to them by virtue of the assailed
order. As to the members of the Joint Committee and Fact-Finding Team, they
perform such functions that they already perform by virtue of their current
positions as prosecutors of the DOJ and legal officers of the Comelec. Thus, in
no way can we consider the Joint Committee as a new public office.
D. Independence of the Comelec
Petitioners claim that in creating the Joint Panel, the Comelec has effectively
abdicated its constitutional mandate to investigate and, where appropriate, to
prosecute cases of violation of election laws including acts or omissions
constituting election frauds, offenses, and malpractices in favor of the Executive
Department acting through the DOJ Secretary. Under the set- up, the Comelec
personnel is placed under the supervision and control of the DOJ. The
chairperson is a DOJ official. Thus, the Comelec has willingly surrendered its
independence to the DOJ and has acceded to share its exercise of judgment and
discretion with the Executive Branch.
We do not agree.
Section 1,95 Article IX-A of the 1987 Constitution expressly describes all the
Constitutional Commissions as independent. Although essentially executive in
nature, they are not under the control of the President of the Philippines in the
discharge of their respective functions.96 The Constitution envisions a truly
independent Comelec committed to ensure free, orderly, honest, peaceful, and
credible elections and to serve as the guardian of the peoples sacred right of
suffrage the citizenrys vital weapon in effecting a peaceful change of
government and in achieving and promoting political stability.97
Prior to the amendment of Section 265 of the Omnibus Election Code, the
Comelec had the exclusive authority to investigate and prosecute election
offenses. In the discharge of this exclusive power, the Comelec was given the
right to avail and, in fact, availed of the assistance of other prosecuting arms of
the government such as the prosecutors of the DOJ. By virtue of this continuing
authority, the state prosecutors and the provincial or city prosecutors were
authorized to receive the complaint for election offense and delegate the conduct
of investigation to any of their assistants. The investigating prosecutor, in turn,
would make a recommendation either to dismiss the complaint or to file the
information. This recommendation is subject to the approval of the state,
provincial or city prosecutor, who himself may file the information with the proper
court if he finds sufficient cause to do so, subject, however, to the accuseds right
to appeal to the Comelec.98
Moreover, during the past national and local elections, the Comelec issued
Resolutions99 requesting the Secretary of Justice to assign prosecutors as
members of Special Task Forces to assist the Comelec in the investigation and
prosecution of election offenses. These Special Task Forces were created
because of the need for additional lawyers to handle the investigation and
prosecution of election offenses.
Clearly, the Comelec recognizes the need to delegate to the prosecutors the
power to conduct preliminary investigation. Otherwise, the prompt resolution of
alleged election offenses will not be attained. This delegation of power, otherwise
known as deputation, has long been recognized and, in fact, been utilized as an
effective means of disposing of various election offense cases. Apparently, as
mere deputies, the prosecutors played a vital role in the conduct of preliminary
investigation, in the resolution of complaints filed before them, and in the filing of
the informations with the proper court.
As pointed out by the Court in Barangay Association for National Advancement
and Transparency (BANAT) Party-List v. Commission on Elections, 100 the grant of
exclusive power to investigate and prosecute cases of election offenses to the
Comelec was not by virtue of the Constitution but by the Omnibus Election Code
which was eventually amended by Section 43 of R.A. 9369. Thus, the DOJ now
conducts preliminary investigation of election offenses concurrently with the
Comelec and no longer as mere deputies. If the prosecutors had been allowed to
conduct preliminary investigation and file the necessary information by virtue only
of a delegated authority, they now have better grounds to perform such function
by virtue of the statutory grant of authority. If deputation was justified because of
lack of funds and legal officers to ensure prompt and fair investigation and
prosecution of election offenses, the same justification should be cited to justify
the grant to the other prosecuting arms of the government of such concurrent
jurisdiction.
In view of the foregoing disquisition, we find no impediment for the creation of a
Joint Committee. While the composition of the Joint Committee and Fact-Finding
Team is dominated by DOJ officials, it does not necessarily follow that the
Comelec is inferior. Under the Joint Order, resolutions of the Joint Committee
finding probable cause for election offenses shall still be approved by the
Comelec in accordance with the Comelec Rules of Procedure. This shows that
the Comelec, though it acts jointly with the DOJ, remains in control of the
proceedings. In no way can we say that the Comelec has thereby abdicated its
independence to the executive department.
The text and intent of the constitutional provision granting the Comelec the
authority to investigate and prosecute election offenses is to give the Comelec all
the necessary and incidental powers for it to achieve the objective of holding
free, orderly, honest, peaceful, and credible elections. 101 The Comelec should be
allowed considerable latitude in devising means and methods that will insure the
accomplishment of the great objective for which it was created. 102We may not
agree fully with its choice of means, but unless these are clearly illegal or
constitute gross abuse of discretion, this Court should not interfere. 103 Thus,
Comelec Resolution No. 9266, approving the creation of the Joint Committee and
Fact-Finding Team, should be viewed not as an abdication of the constitutional
bodys independence but as a means to fulfill its duty of ensuring the prompt
investigation and prosecution of election offenses as an adjunct of its mandate of
ensuring a free, orderly, honest, peaceful and credible elections.
Although it belongs to the executive department, as the agency tasked to
investigate crimes, prosecute offenders, and administer the correctional system,
the DOJ is likewise not barred from acting jointly with the Comelec. It must be
emphasized that the DOJ and the Comelec exercise concurrent jurisdiction in
conducting preliminary investigation of election offenses. The doctrine of
concurrent jurisdiction means equal jurisdiction to deal with the same subject
matter.104 Contrary to the contention of the petitioners, there is no prohibition on
simultaneous exercise of power between two coordinate bodies. What is
prohibited is the situation where one files a complaint against a respondent
initially with one office (such as the Comelec) for preliminary investigation which
was immediately acted upon by said office and the re-filing of substantially the
same complaint with another office (such as the DOJ). The subsequent
assumption of jurisdiction by the second office over the cases filed will not be
allowed. Indeed, it is a settled rule that the body or agency that first takes
cognizance of the complaint shall exercise jurisdiction to the exclusion of the
others.105 As cogently held by the Court in Department of Justice v. Hon. Liwag: 106
To allow the same complaint to be filed successively before two or more
investigative bodies would promote multiplicity of proceedings. It would also
cause undue difficulties to the respondent who would have to appear and defend
his position before every agency or body where the same complaint was filed.
This would lead hapless litigants at a loss as to where to appear and plead their
cause or defense.
There is yet another undesirable consequence. There is the distinct possibility
that the two bodies exercising jurisdiction at the same time would come up with
conflicting resolutions regarding the guilt of the respondents.
Finally, the second investigation would entail an unnecessary expenditure of
public funds, and the use of valuable and limited resources of Government, in a
duplication of proceedings already started with the Ombudsman. 107
None of these problems would likely arise in the present case. The Comelec and
the DOJ themselves agreed that they would exercise their concurrent jurisdiction
jointly. Although the preliminary investigation was conducted on the basis of two
complaints the initial report of the Fact-Finding Team and the complaint of
Senator Pimentel both complaints were filed with the Joint Committee.
Consequently, the complaints were filed with and the preliminary investigation
was conducted by only one investigative body. Thus, we find no reason to
disallow the exercise of concurrent jurisdiction jointly by those given such
authority. This is especially true in this case given the magnitude of the crimes
allegedly committed by petitioners. The joint preliminary investigation also serves
to maximize the resources and manpower of both the Comelec and the DOJ for
the prompt disposition of the cases.
Citing the principle of concurrent jurisdiction, petitioners insist that the
investigation conducted by the Comelec involving Radam and Martirizar bars the
creation of the Joint Committee for purposes of conducting another preliminary
investigation. In short, they claim that the exercise by the Comelec of its
jurisdiction to investigate excludes other bodies such as the DOJ and the Joint
Committee from taking cognizance of the case. Petitioners add that the
investigation should have been conducted also by the Comelec as the 2007
cases of Radam and Martirizar include several John Does and Jane Does.
We do not agree.
While the Comelec conducted the preliminary investigation against Radam,
Martirizar and other unidentified persons, it only pertains to election offenses
allegedly committed in North and South Cotabato. On the other hand, the
preliminary investigation conducted by the Joint Committee (involving GMA)
pertains to election offenses supposedly committed in Maguindanao. More
importantly, considering the broad power of the Comelec to choose the means of
fulfilling its duty of ensuring the prompt investigation and prosecution of election
offenses as discussed earlier, there is nothing wrong if the Comelec chooses to
work jointly with the DOJ in the conduct of said investigation. To reiterate, in no
way can we consider this as an act abdicating the independence of the Comelec.
Publication Requirement
In the conduct of preliminary investigation, the DOJ is governed by the Rules of
Court, while the Comelec is governed by the 1993 Comelec Rules of Procedure.
There is, therefore, no need to promulgate new Rules as may be complementary
to the DOJ and Comelec Rules.
As earlier discussed, considering that Joint Order No. 001-2011 only enables the
Comelec and the DOJ to exercise powers which are already vested in them by
the Constitution and other existing laws, it need not be published for it to be valid
and effective. A close examination of the Joint Committees Rules of Procedure,
however, would show that its provisions affect the public. Specifically, the
following provisions of the Rules either restrict the rights of or provide remedies
to the affected parties, to wit: (1) Section 1 provides that "the Joint Committee will
no longer entertain complaints from the public as soon as the Fact-Finding Team
submits its final report, except for such complaints involving offenses mentioned
in the Fact-Finding Teams Final Report"; (2) Section 2 states that "the Joint
Committee shall not entertain a Motion to Dismiss"; and (3) Section 5 provides
that a Motion for Reconsideration may be availed of by the aggrieved parties
against the Joint Committees Resolution. Consequently, publication of the Rules
is necessary.
The publication requirement covers not only statutes but administrative
regulations and issuances, as clearly outlined in Taada v. Tuvera: 108 effectivity,
which shall begin fifteen days after publication unless a different effectivity date is
fixed by the legislature. Covered by this rule are presidential decrees and
executive orders promulgated by the President in the exercise of legislative
powers whenever the same are validly delegated by the legislature or, at present,
directly conferred by the Constitution. Administrative rules and regulations must
also be published if their purpose is to enforce or implement existing law
pursuant also to a valid delegation. Interpretative regulations and those merely
internal in nature, that is, regulating only the personnel of the administrative
agency and not the public, need not be published. Neither is publication required
of the so called letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates in the
performance of their duties.109
As opposed to Honasan II v. The Panel of Investigating Prosecutors of the
Department of Justice,110 where the Court held that OMB-DOJ Joint Circular No.
95-001 is only an internal arrangement between the DOJ and the Office of the
Ombudsman outlining the authority and responsibilities among prosecutors of
both offices in the conduct of preliminary investigation, the assailed Joint
Committees Rules of Procedure regulate not only the prosecutors of the DOJ
and the Comelec but also the conduct and rights of persons, or the public in
general. The publication requirement should, therefore, not be ignored.
Publication is a necessary component of procedural due process to give as wide
publicity as possible so that all persons having an interest in the proceedings
may be notified thereof.111 The requirement of publication is intended to satisfy
the basic requirements of due process. It is imperative for it will be the height of
injustice to punish or otherwise burden a citizen for the transgressions of a law or
rule of which he had no notice whatsoever.112
Nevertheless, even if the Joint Committees Rules of Procedure is ineffective for
lack of publication, the proceedings undertaken by the Joint Committee are not
rendered null and void for that reason, because the preliminary investigation was
conducted by the Joint Committee pursuant to the procedures laid down in Rule
112 of the Rules on Criminal Procedure and the 1993 Comelec Rules of
Procedure.
Validity of the Conduct of
Preliminary Investigation
In her Supplemental Petition,113 GMA outlines the incidents that took place after
the filing of the instant petition, specifically the issuance by the Joint Committee
of the Joint Resolution, the approval with modification of such resolution by the
Comelec and the filing of information and the issuance of a warrant of arrest by
the RTC. With these supervening events, GMA further assails the validity of the
proceedings that took place based on the following additional grounds: (1) the
undue and unbelievable haste attending the Joint Committees conduct of the
preliminary investigation, its resolution of the case, and its referral to and
approval by the Comelec, taken in conjunction with the statements from the
Office of the President, demonstrate a deliberate and reprehensible pattern of
abuse of inalienable rights and a blatant disregard of the envisioned integrity and
independence of the Comelec; (2) as it stands, the creation of the Joint
Committee was for the singular purpose of railroading the proceedings in the
prosecution of the petitioner and in flagrant violation of her right to due process
and equal protection of the laws; (3) the proceedings of the Joint Committee
cannot be considered impartial and fair, considering that respondents have acted
as law enforcers, who conducted the criminal investigation, gathered evidence
and thereafter ordered the filing of complaints, and at the same time authorized
preliminary investigation based on the complaints they caused to be filed; (4) the
Comelec became an instrument of oppression when it hastily approved the
resolution of the Joint Committee even if two of its members were in no position
to cast their votes as they admitted to not having yet read the voluminous records
of the cases; and (5) flagrant and repeated violations of her right to due process
at every stage of the proceedings demonstrate a deliberate attempt to single out
petitioner through the creation of the Joint Committee. 114
In their Supplement to the Consolidated Comment,115 respondents accuse
petitioners of violating the rule against forum shopping. They contend that in filing
the Supplemental Petition before the Court, the Urgent Omnibus Motion Ad
Cautelam with the RTC, and the Motion to Vacate Ad Cautelam with the
Comelec, GMA raises the common issue of whether or not the proceedings
before the Joint Committee and the Comelec are null and void for violating the
Constitution. Respondents likewise claim that the issues raised in the
supplemental petition are factual which is beyond the power of this Court to
decide.
We cannot dismiss the cases before us on the ground of forum shopping.
Forum shopping is the act of a party against whom an adverse judgment has
been rendered in one forum, of seeking another and possibly favorable opinion in
another forum other than by appeal or the special civil action of certiorari. 116There
can also be forum shopping when a party institutes two or more suits in different
courts, either simultaneously or successively, in order to ask the courts to rule on
the same and related causes and/or to grant the same or substantially the same
reliefs on the supposition that one or the other court would make a favorable
disposition or increase a partys chances of obtaining a favorable decision or
action.117
Indeed, petitioner GMA filed a Supplemental Petition before the Court, an Urgent
Omnibus Motion Ad Cautelam before the RTC, and a Motion to Vacate Ad
Cautelam before the Comelec, emphasizing the unbelievable haste committed by
the Joint Committee and the Comelec in disposing of the cases before them.
However, a plain reading of the allegations in GMAs motion before the RTC
would show that GMA raised the issue of undue haste in issuing the Joint
Resolution only in support of her prayer for the trial court to hold in abeyance the
issuance of the warrant of arrest, considering that her motion for reconsideration
of the denial of her motion to be furnished copies of documents was not yet acted
upon by the Joint Committee. If at all the constitutional issue of violation of due
process was raised, it was merely incidental. More importantly, GMA raised in her
motion with the RTC the finding of probable cause as she sought the judicial
determination of probable cause which is not an issue in the petitions before us.
GMAs ultimate prayer is actually for the court to defer the issuance of the
warrant of arrest. Clearly, the reliefs sought in the RTC are different from the
reliefs sought in this case. Thus, there is no forum shopping.
With respect to the Motion to Vacate Ad Cautelam filed with the Comelec, while
the issues raised therein are substantially similar to the issues in the
supplemental petition which, therefore, strictly speaking, warrants outright
dismissal on the ground of forum shopping, we cannot do so in this case in light
of the due process issues raised by GMA.118 It is worthy to note that the main
issues in the present petitions are the constitutionality of the creation of the Joint
Panel and the validity of the proceedings undertaken pursuant thereto for alleged
violation of the constitutional right to due process. In questioning the propriety of
the conduct of the preliminary investigation in her Supplemental Petition, GMA
only raises her continuing objection to the exercise of jurisdiction of the Joint
Committee and the Comelec. There is, therefore, no impediment for the Court to
rule on the validity of the conduct of preliminary investigation.
In Uy v. Office of the Ombudsman,119 the Court explained the nature of
preliminary investigation, to wit:
A preliminary investigation is held before an accused is placed on trial to secure
the innocent against hasty, malicious, and oppressive prosecution; to protect him
from an open and public accusation of a crime, as well as from the trouble,
expenses, and anxiety of a public trial. It is also intended to protect the state from
having to conduct useless and expensive trials. While the right is statutory rather
than constitutional, it is a component of due process in administering criminal
justice. The right to have a preliminary investigation conducted before being
bound for trial and before being exposed to the risk of incarceration and penalty
is not a mere formal or technical right; it is a substantive right. To deny the
accused's claim to a preliminary investigation is to deprive him of the full
measure of his right to due process.120
A preliminary investigation is the crucial sieve in the criminal justice system which
spells for an individual the difference between months if not years of agonizing
trial and possibly jail term, on the one hand, and peace of mind and liberty, on the
other hand. Thus, we have characterized the right to a preliminary investigation
as not a mere formal or technical right but a substantive one, forming part of due
process in criminal justice.121
In a preliminary investigation, the Rules of Court guarantee the petitioners basic
due process rights such as the right to be furnished a copy of the complaint, the
affidavits, and other supporting documents, and the right to submit counter-
affidavits, and other supporting documents in her defense. 122 Admittedly, GMA
received the notice requiring her to submit her counter-affidavit. Yet, she did not
comply, allegedly because she could not prepare her counter-affidavit. She
claimed that she was not furnished by Senator Pimentel pertinent documents that
she needed to adequately prepare her counter-affidavit.
In her Omnibus Motion Ad Cautelam123 to require Senator Pimentel to furnish her
with documents referred to in his complaint-affidavit and for production of election
documents as basis for the charge of electoral sabotage, GMA prayed that the
Joint Committee issue an Order directing the Fact-Finding Team and Senator
Pimentel to furnish her with copies of the following documents:
a. Complaint-affidavit and other relevant documents of Senator Aquilino
Pimentel III filed before the Commission on Elections against Attys. Lilia
Suan-Radam and Yogie Martirizar, as well as the Informations filed in the
Regional Trial Court of Pasay City, Branch 114 in Criminal Case Nos. R-
PSU-11-03190-CR to R-PSU-11-03200-CR.
b. Records in the petitions filed by complainant Pimentel before the
National Board of Canvassers, specifically in NBC Case Nos. 07-162,
07-168, 07-157, 07-159, 07-161 and 07-163.
c. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of
Maguindanao."
d. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of Lanao
del Norte."
e. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of Shariff
Kabunsuan."
f. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of Lanao
del Sur."
g. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of Sulu."
h. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of
Basilan."
i. Documents which served as basis in the allegations of "Significant
findings specific to the protested municipalities in the Province of Sultan
Kudarat."124
GMA likewise requested the production of election documents used in the
Provinces of South and North Cotabato and Maguindanao. 125
The Joint Committee, however, denied GMAs motion which carried with it the
denial to extend the filing of her counter-affidavit. Consequently, the cases were
submitted for resolution sans GMAs and the other petitioners counter-affidavits.
This, according to GMA, violates her right to due process of law.
We do not agree.
GMAs insistence of her right to be furnished the above-enumerated documents
is based on Section 3 (b), Rule 112 of the Rules on Criminal Procedure, which
reads:
(b) x x x
The respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his
expense. If the evidence is voluminous, the complainant may be required to
specify those which he intends to present against the respondent, and these
shall be made available for examination or copying by the respondent at his
expense,
Objects as evidence need not be furnished a party but shall be made available
for examination, copying or photographing at the expense of the requesting
party.126
Section 6 (a), Rule 34 of the Comelec Rules of Procedure also grants the
respondent such right of examination, to wit:
Sec. 6. Conduct of preliminary investigation. (a) If on the basis of the complaint,
affidavits and other supporting evidence, the investigating officer finds no ground
to continue with the inquiry, he shall recommend the dismissal of the complaint
and shall follow the procedure prescribed in Sec. 8 (c) of this Rule. Otherwise, he
shall issue a subpoena to the respondent, attaching thereto a copy of the
complaint, affidavits and other supporting documents giving said respondent ten
(10) days from receipt within which to submit counter-affidavits and other
supporting documents. The respondent shall have the right to examine all other
evidence submitted by the complainant.127
Clearly from the above-quoted provisions, the subpoena issued against
respondent therein should be accompanied by a copy of the complaint and the
supporting affidavits and documents. GMA also has the right to examine
documents but such right of examination is limited only to the documents or
evidence submitted by the complainants (Senator Pimentel and the Fact-Finding
Team) which she may not have been furnished and to copy them at her expense.
While it is true that Senator Pimentel referred to certain election documents
which served as bases in the allegations of significant findings specific to the
protested municipalities involved, there were no annexes or attachments to the
complaint filed.128 As stated in the Joint Committees Order dated November 15,
2011 denying GMAs Omnibus Motion Ad Cautelam, Senator Pimentel was
ordered to furnish petitioners with all the supporting evidence 129 However,
Senator Pimentel manifested that he was adopting all the affidavits attached to
the Fact-Finding Teams Initial Report.130 Therefore, when GMA was furnished
with the documents attached to the Initial Report, she was already granted the
right to examine as guaranteed by the Comelec Rules of Procedure and the
Rules on Criminal Procedure. Those were the only documents submitted by the
complainants to the Committee. If there are other documents that were referred
to in Senator Pimentels complaint but were not submitted to the Joint
Committee, the latter considered those documents unnecessary at that point
(without foreclosing the relevance of other evidence that may later be presented
during the trial)131 as the evidence submitted before it were considered adequate
to find probable cause against her.132 Anyway, the failure of the complainant to
submit documents supporting his allegations in the complaint may only weaken
his claims and eventually works for the benefit of the respondent as these merely
are allegations unsupported by independent evidence.
We must, however, emphasize at this point that during the preliminary
investigation, the complainants are not obliged to prove their cause beyond
reasonable doubt. It would be unfair to expect them to present the entire
evidence needed to secure the conviction of the accused prior to the filing of
information.133 A preliminary investigation is not the occasion for the full and
exhaustive display of the parties respective evidence but the presentation only of
such evidence as may engender a well-grounded belief that an offense has been
committed and that the accused is probably guilty thereof and should be held for
trial.134 Precisely there is a trial to allow the reception of evidence for the
prosecution in support of the charge.135
With the denial of GMAs motion to be furnished with and examine the documents
referred to in Senator Pimentels complaint, GMAs motion to extend the filing of
her counter-affidavit and countervailing evidence was consequently denied.
Indeed, considering the nature of the crime for which GMA was subjected to
preliminary investigation and the documents attached to the complaint, it is
incumbent upon the Joint Committee to afford her ample time to examine the
documents submitted to the Joint Committee in order that she would be able to
prepare her counter-affidavit. She cannot, however, insist to examine documents
not in the possession and custody of the Joint Committee nor submitted by the
complainants. Otherwise, it might cause undue and unnecessary delay in the
disposition of the cases. This undue delay might result in the violation of the right
to a speedy disposition of cases as enshrined in Section 16, Article III of the
Constitution which states that "all persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or administrative
bodies." The constitutional right to speedy disposition of cases is not limited to
the accused in criminal proceedings but extends to all parties in all cases,
including civil and administrative cases, and in all proceedings, including judicial
and quasi-judicial hearings.136 Any party to a case has the right to demand on all
officials tasked with the administration of justice to expedite its
disposition.137 Society has a particular interest in bringing swift prosecutions, and
the societys representatives are the ones who should protect that interest. 138
Even assuming for the sake of argument that the denial of GMAs motion to be
furnished with and examine the documents referred to in Senator Pimentels
complaint carried with it the denial to extend the filing of her counter-affidavit and
other countervailing evidence rendering the preliminary investigation irregular,
such irregularity would not divest the RTC of jurisdiction over the case and would
not nullify the warrant of arrest issued in connection therewith, considering that
Informations had already been filed against petitioners, except Mike Arroyo. This
would only compel us to suspend the proceedings in the RTC and remand the
case to the Joint Committee so that GMA could submit her counter-affidavit and
other countervailing evidence if she still opts to. However, to do so would hold
back the progress of the case which is anathema to the accuseds right to speedy
disposition of cases.
It is well settled that the absence or irregularity of preliminary investigation does
not affect the courts jurisdiction over the case. Nor does it impair the validity of
the criminal information or render it defective. Dismissal is not the
remedy.139 Neither is it a ground to quash the information or nullify the order of
arrest issued against the accused or justify the release of the accused from
detention.140 The proper course of action that should be taken is to hold in
abeyance the proceedings upon such information and to remand the case for the
conduct of preliminary investigation.141
In the landmark cases of Cojuangco, Jr. v. Presidential Commission on Good
Government (PCGG)142 and Allado v. Diokno,143 we dismissed the criminal cases
and set aside the informations and warrants of arrest. In Cojuangco, we
dismissed the criminal case because the information was filed by the PCGG
which we declared to be unauthorized to conduct the preliminary investigation
and, consequently, file the information as it did not possess the cold neutrality of
an impartial judge. In Allado, we set aside the warrant of arrest issued against
petitioners therein and enjoined the trial court from proceeding further for lack of
probable cause. For one, there was serious doubt on the reported death of the
victim in that case since the corpus delicti had not been established nor had his
remains been recovered;and based on the evidence submitted, there was
nothing to incriminate petitioners therein. In this case, we cannot reach the same
conclusion because the Information filed before the RTC of Pasay City was filed
by the Comelec en banc which had the authority to file the information for
electoral sabotage and because the presence or absence of probable cause is
not an issue herein. As can be gleaned from their assignment of errors/issues,
petitioners did not question the finding of probable cause in any of their
supplemental petitions. It was only in GMAs memorandum where she belatedly
included a discussion on the "insufficiency" of the evidence supporting the finding
of probable cause for the filing of the Information for electoral sabotage against
her.144 A closer look at her arguments, however, would show that they were
included only to highlight the necessity of examining the election documents
GMA requested to see before she could file her counter-affidavit. At any rate,
since GMA failed to submit her counter-affidavit and other countervailing
evidence within the period required by the Joint Committee, we cannot excuse
her from non-compliance.
There might have been overzealousness on the part of the Joint Committee in
terminating the investigation, endorsing the Joint Resolution to the Comelec for
approval, and in filing the information in court. However, speed in the conduct of
proceedings by a judicial or quasi-judicial officer cannot per se be instantly
attributed to an injudicious performance of functions. 145 The orderly administration
of justice remains the paramount consideration with particular regard to the
peculiar circumstances of each case.146 To be sure, petitioners were given the
opportunity to present countervailing evidence. Instead of complying with the
Joint Committees directive, several motions were filed but were denied by the
Joint Committee. Consequently, petitioners right to submit counter-affidavit and
countervailing evidence was forfeited. Taking into account the constitutional right
to speedy disposition of cases and following the procedures set forth in the Rules
on Criminal Procedure and the Comelec Rules of Procedure, the Joint
Committee finally reached its conclusion and referred the case to the Comelec.
The latter, in turn, performed its task and filed the information in court. Indeed,
petitioners were given the opportunity to be heard. They even actively
participated in the proceedings and in fact filed several motions before the Joint
Committee. Consistent with the constitutional mandate of speedy disposition of
cases, unnecessary delays should be avoided.
Finally, we take judicial notice that on February 23, 2012, GMA was already
arraigned and entered a plea of "not guilty" to the charge against her and
thereafter filed a Motion for Bail which has been granted. Considering that the
constitutionality of the creation of the Joint Panel is sustained, the actions of the
Joint Committee and Fact-Finding Team are valid and effective. As the
information was filed by the Commission authorized to do so, its validity is
sustained. Thus, we consider said entry of plea and the Petition for Bail waiver on
the part of GMA of her right to submit counter-affidavit and countervailing
evidence before the Joint Committee, and recognition of the validity of the
information against her. Her act indicates that she opts to avail of judicial
remedies instead of the executive remedy of going back to the Joint Committee
for the submission of the counter-affidavit and countervailing evidence. Besides,
as discussed earlier, the absence or irregularity of preliminary investigation does
not affect the courts jurisdiction over the case nor does it impair the validity of the
criminal information or render it defective.
It must be stressed, however, that this supervening event does not render the
cases before the Court moot and academic as the main issues raised by
petitioners are the constitutionality of the creation of the Joint Committee and the
Fact-Finding Team and the validity of the proceedings undertaken pursuant to
their respective mandates.
The Court notes that the Joint Committee and the Comelec have not disposed of
the cases of the other respondents subjects of the preliminary investigation as
some of them were subjected to further investigation. In order to remove the
cloud of doubt that pervades that petitioners are being singled out, it is to the
best interest of all the parties concerned that the Joint Committee and the
Comelec terminate the proceedings as to the other respondents therein and not
make a piecemeal disposition of the cases.
A peripheral issue which nonetheless deserves our attention is the question
about the credibility of the Comelec brought about by the alleged professional
relationship between Comelec Chairman Brillantes on one hand and the
complainant Senator Pimentel and Fernando Poe, Jr. (FPJ), GMAs rival in the
2004 elections, on the other hand; and by the other Commissioners 147 reasons
for their partial inhibition. To be sure, Chairman Brillantes relationship with FPJ
and Senator Pimentel is not one of the grounds for the mandatory disqualification
of a Commissioner. At its most expansive, it may be considered a ground for
voluntary inhibition which is indeed discretionary as the same was primarily a
matter of conscience and sound discretion on the part of the Commissioner judge
based on his or her rational and logical assessment of the case. 148 Bare
allegations of bias and prejudice are not enough in the absence of clear and
convincing evidence to overcome the presumption that a judge will undertake his
noble role to dispense justice according to law and evidence without fear or
favor.149 It being discretionary and since Commissioner Brillantes was in the best
position to determine whether or not there was a need to inhibit from the case,
his decision to participate in the proceedings, in view of higher interest of justice,
equity and public interest, should be respected. While a party has the right to
seek the inhibition or disqualification of a judge (or prosecutor or Commissioner)
who does not appear to be wholly free, disinterested, impartial, and independent
in handling the case, this right must be weighed with his duty to decide cases
without fear of repression.150
Indeed, in Javier v. Comelec,151 the Court set aside the Comelecs decision
against Javier when it was disclosed that one of the Commissioners who had
decided the case was a law partner of Javiers opponent and who had refused to
excuse himself from hearing the case. Javier, however, is not applicable in this
case. First, the cited case involves the Comelecs exercise of its adjudicatory
function as it was called upon to resolve the propriety of the proclamation of the
winner in the May 1984 elections for Batasang Pambansa of Antique. Clearly, the
grounds for inhibition/disqualification were applicable. Second, the case arose at
the time where the purity of suffrage has been defiled and the popular will
scorned through the confabulation of those in authority.152 In other words, the
controversy arose at the time when the public confidence in the Comelec was
practically nil because of its transparent bias in favor of the
administration.153Lastly, in determining the propriety of the decision rendered by
the Comelec, the Court took into consideration not only the relationship (being
former partners in the law firm) between private respondents therein, Arturo F.
Pacificador, and then Comelec Commissioner Jaime Opinion (Commissioner
Opinion) but also the general attitude of the Comelec toward the party in power
at that time. Moreover, the questioned Comelec decision was rendered only by a
division of the Comelec. The Court thus concluded in Javier that Commissioner
Opinions refusal to inhibit himself divested the Comelecs Second Division of the
necessary vote for the questioned decision and rendered the proceedings null
and void.154
On the contrary, the present case involves only the conduct of preliminary
investigation and the questioned resolution is an act of the Comelec En Banc
where all the Commissioners participated and more than a majority (even if
Chairman Brillantes is excluded) voted in favor of the assailed Comelec
resolution. Unlike in 1986, public confidence in the Comelec remains. The
Commissioners have already taken their positions in light of the claim of "bias
and partiality" and the causes of their partial inhibition. Their positions should be
respected confident that in doing so, they had the end in view of ensuring that the
credibility of the Commission is not seriously affected.
To recapitulate, we find and so hold that petitioners failed to establish any
constitutional or legal impediment to the creation of the Joint DOJ-Comelec
Preliminary Investigation Committee and Fact-Finding Team.
First, while GMA and Mike Arroyo were among those subjected to preliminary
investigation, not all respondents therein were linked to GMA; thus, Joint Order
No. 001-2011 does not violate the equal protection clause of the Constitution.
Second, the due process clause is likewise not infringed upon by the alleged
prejudgment of the case as petitioners failed to prove that the Joint Panel itself
showed such bias and partiality against them. Neither was it shown that the
Justice Secretary herself actually intervened in the conduct of the preliminary
investigation. More importantly, considering that the Comelec is a collegial body,
the perceived prejudgment of Chairman Brillantes as head of the Comelec
cannot be considered an act of the body itself.
Third, the assailed Joint Order did not create new offices because the Joint
Committee and Fact-Finding Team perform functions that they already perform
by virtue of the Constitution, the statutes, and the Rules of Court.1wphi1
Fourth, in acting jointly with the DOJ, the Comelec cannot be considered to have
abdicated its independence in favor of the executive branch of government.
Resolution No. 9266 was validly issued by the Comelec as a means to fulfill its
duty of ensuring the prompt investigation and prosecution of election offenses as
an adjunct of its mandate of ensuring a free, orderly, honest, peaceful, and
credible elections. The role of the DOJ in the conduct of preliminary investigation
of election offenses has long been recognized by the Comelec because of its
lack of funds and legal officers to conduct investigations and to prosecute such
cases on its own. This is especially true after R.A. No. 9369 vested in the
Comelec and the DOJ the concurrent jurisdiction to conduct preliminary
investigation of all election offenses. While we uphold the validity of Comelec
Resolution No. 9266 and Joint Order No. 001-2011, we declare the Joint
Committees Rules of Procedure infirm for failure to comply with the publication
requirement. Consequently, Rule 112 of the Rules on Criminal Procedure and the
1993 Comelec Rules of Procedure govern.
Fifth, petitioners were given the opportunity to be heard. They were furnished a
copy of the complaint, the affidavits, and other supporting documents submitted
to the Joint Committee and they were required to submit their counter-affidavit
and countervailing evidence. As to petitioners Mike Arroyo and Abalos, the
pendency of the cases before the Court does not automatically suspend the
proceedings before the Joint Committee nor excuse them from their failure to file
the required counter-affidavits. With the foregoing disquisitions, we find no
reason to nullify the proceedings undertaken by the Joint Committee and the
Comelec in the electoral sabotage cases against petitioners.
WHEREFORE, premises considered, the petitions and supplemental petitions
are DISMISSED. Comelec Resolution No. 9266 dated August 2, 2011, Joint
Order No. 001-2011 dated August 15, 2011, and the Fact-Finding Teams Initial
Report dated October 20, 2011, are declared VALID. However, the Rules of
Procedure on the Conduct of Preliminary Investigation on the Alleged Election
Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack
of publication.
In view of the constitutionality of the Joint Panel and the proceedings having
been conducted in accordance with Rule 112 of the Rules on Criminal Procedure
and Rule 34 of the Comelec Rules of Procedure, the conduct of the preliminary
investigation is hereby declared VALID.
Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where
the criminal cases for electoral sabotage against petitioners GMA and Abalos are
pending, proceed with dispatch.
SO ORDERED.
G.R. No. 199082 July 23, 2013
JOSE MIGUEL T. ARROYO, Petitioner,
vs.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE
LIMA, in her capacity as Secretary of the Department of Justice; HON.
SIXTO BRILLANTES, JR., in his capacity as Chairperson of the Commission
on Elections; and the JOINT DOJ-COMELEC PRELIMINARY
INVESTIGATION COMMITTEE and FACT-FINDING TEAM, Respondents.
x-----------------------x
G.R. No. 199085
BENJAMIN S. ABALOS, SR., Petitioner,
vs.
HON. LEILA DE LIMA, in capacity as Secretary of Justice; HON. SIXTO S.
BRILLANTES, JR., in his capacity as COMELEC Chairperson; RENE V.
SARMIENTO, LUCENITO N. TAGLE, ARMANDO V. VELASCO, ELIAS R.
YUSOPH, CHRISTIAN ROBERT S. LIM AND AUGUSTO C. LAGMAN, in their
capacity as COMELEC COMMISSIONERS; CLARO A. ARELLANO, GEORGE
C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D. VILLARET,
in their capacity as CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF
THE JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE
ON THE 2004 AND 2007 ELECTION FRAUD, Respondents.
x-----------------------x
G.R. No. 199118
GLORIA MACAPAGAL-ARROYO, Petitioner,
vs.
COMMISSION ON ELECTIONS, represented by Chairperson Sixto S.
Brillantes, Jr., DEPARTMENT OF JUSTICE, represented by Secretary Leila
M. De Lima, JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION
COMMITTEE, SENATOR AQUILINO M. PIMENTEL III, and DOJ-COMELEC
FACT FINDING TEAM, Respondents.
Election Law; Commission on Elections (COMELEC); Under the present law, the
Comelec and other prosecuting arms of the government, such as the Department
of Justice (DOJ), now exercise concurrent jurisdiction in the investigation and
prosecution of election offenses.This is not the first time that the Court is
confronted with the issue of whether the Comelec has the exclusive power to
investigate and prosecute cases of violations of election laws. In Barangay
Association for National Advancement and Transparency (BANAT) Party-List v.
Commission on Elections, 595 SCRA 477 (2009), the constitutionality of Section
43 of RA 9369 had already been raised by petitioners therein and addressed by
the Court. While recognizing the Comelecs exclusive power to investigate and
prosecute cases under Batas Pambansa Bilang 881 or the Omnibus Election
Code, the Court pointed out that the framers of the 1987 Constitution did not
have such intention. This exclusivity is thus a legislative enactment that can very
well be amended by Section 43 of RA 9369. Therefore, under the present law,
the Comelec and other prosecuting arms of the government, such as the DOJ,
now exercise concurrent jurisdiction in the investigation and prosecution of
election offenses.
Same; The Comelec Law Department and the Office of the Chief State
Prosecutor of the Department of Justice (DOJ) were tasked to jointly supervise
the investigatory and prosecutory functions of the Comelec-DOJ Task Force.It
is noteworthy that Comelec Resolution No. 3467 was issued when Section 265 of
the Omnibus Election Code was still effective, while Joint Order No. 001-2011 as
well as Comelec Resolution Nos. 8733 and 9057 mentioned in the assailed
decision but missed out by GMA in her motion, were issued during the effectivity
of Section 43 of RA 9369, giving the Comelec and other prosecuting arms of the
government the concurrent jurisdiction to investigate and prosecute election
offenses. This amendment paved the way for the discrepancy. In Comelec
Resolution No. 3467, the Comelec maintained the continuing deputation of
prosecutors and the Comelec Law Department was tasked to supervise the
investigatory and prosecutory functions of the task force pursuant to the mandate
of the Omnibus Election Code. However, with the amendment, the Comelec
likewise changed the tenor of the later resolutions to reflect the new mandate of
the Comelec and other prosecuting arms of the government now exercising
concurrent jurisdiction. Thus, the Comelec Law Department and the Office of the
Chief State Prosecutor of the DOJ were tasked to jointly supervise the
investigatory and prosecutory functions of the Comelec-DOJ Task Force.
Considering, therefore, that the later resolutions, including Joint Order No. 001-
2011, were issued pursuant to Section 43 of RA 9369 amending Section 265 of
BP 881 which was declared constitutional in Banat, there is no reason for us to
declare otherwise. To maintain the previous role of other prosecuting arms of the
government as mere deputies despite the amendment would mean challenging
Section 43 of RA 9369 anew which has already been settled in Banat. To be
sure, the creation of a Joint Committee is not repugnant to the concept of
concurrent jurisdiction authorized by the amendatory law.
Same; Notwithstanding the grant of concurrent jurisdiction, the Comelec and the
Department of Justice (DOJ) nevertheless included a provision in the assailed
Joint Order whereby the resolutions of the Joint Committee finding probable
cause for election offenses shall still be approved by the Comelec in accordance
with the Comelec Rules of Procedure.Notwithstanding the grant of concurrent
jurisdiction, the Comelec and the DOJ nevertheless included a provision in the
assailed Joint Order whereby the resolutions of the Joint Committee finding
probable cause for election offenses shall still be approved by the Comelec in
accordance with the Comelec Rules of Procedure. With more reason, therefore,
that we cannot consider the creation of the Joint Committee as an abdication of
the Comelecs independence enshrined in the 1987 Constitution.
Same; Preliminary Investigation; The procedure in conducting the preliminary
investigation is governed by Rule 112 of the Revised Rules on Criminal
Procedure and Rule 34 of the Comelec Rules of Procedure.The procedure in
conducting the preliminary investigation is governed by Rule 112 of the Revised
Rules on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure.
Under both Rules, the respondent shall submit his counter-affidavit and that of
his witnesses and other supporting documents relied upon for his defense, within
ten (10) days from receipt of the subpoena, with the complaint and supporting
affidavits and documents. Also in both Rules, respondent is given the right to
examine evidence, but such right of examination is limited only to the documents
or evidence submitted by complainants which she may not have been furnished
and to copy them at her expense.
Same; Same; The Rules use the term shall in requiring the respondent to
submit counter-affidavit and other countervailing evidence within ten (10) days
from receipt of the subpoena; As in any other rule, though, liberality in the
application may be allowed provided that the party is able to present a
compelling justification for the non-observance of the mandatory rules.Neither
was GMAs right violated when her motion for extension of time within which to
submit her counter-affidavit and countervailing evidence was consequently
denied. The Rules use the term shall in requiring the respondent to submit
counter-affidavit and other countervailing evidence within ten (10) days from
receipt of the subpoena. It is settled that the use of the word shall which is a
word of command, underscores the mandatory character of the rule. As in any
other rule, though, liberality in the application may be allowed provided that the
party is able to present a compelling justification for the non-observance of the
mandatory rules. In the 2008 Revised Manual for Prosecutors, investigating
prosecutors allow or grant motions or requests for extension of time to submit
counter-affidavits when the interest of justice demands that respondent be given
reasonable time or sufficient opportunity to engage the services of counsel;
examine voluminous records submitted in support of the complaint or undertake
research on novel, complicated or technical questions or issues of law and facts
of the case.
BRION, J., Dissenting Opinion:
Election Law; View that what exists under Joint Order No. 001-2011 is not a
scheme whereby the COMELEC exercises its power to conduct preliminary
investigation and prosecute election offenses independently of other branches of
government; what it provides is a shared responsibility between the COMELEC
and the Executive Branch through the Department of Justice (DOJ).I reiterate,
if only for emphasis, that what exists under Joint Order No. 001-2011 is not a
scheme whereby the COMELEC exercises its power to conduct preliminary
investigation and prosecute election offenses independently of other branches of
government; what it provides is a shared responsibility between the COMELEC
and the Executive Branch through the DOJ. The result cannot but be an
arrangement that the Constitution and the law cannot allow, however practical
from the standpoint of efficiency it might be. To stress the obvious, the joint or
shared arrangement directly goes against the rationale that justifies the grant of
independence to the COMELEC to insulate it, particularly its role in the
countrys electoral exercise, from political pressures and partisan politics.
Same; View that this concurrent jurisdiction between the COMELEC and the
Department of Justice (DOJ) in the investigation and prosecution of election
offenses is circumscribed by the Constitutional provisions guaranteeing the
COMELECs independence as a Constitutional Commission.I take exception to
the ponencias conclusion that the creation of the Joint DOJ-COMELEC
Committee is not repugnant to the concurrent jurisdiction conferred to the
COMELEC and other prosecutorial agencies of government (such as the DOJ)
under Section 42 of Republic Act No. 9369. I reiterate the view that this
concurrent jurisdiction between the COMELEC and the DOJ in the investigation
and prosecution of election offenses is circumscribed by the Constitutional
provisions guaranteeing the COMELECs independence as a Constitutional
Commission. To my mind, the only arrangement that can pass constitutional
muster is the practice of delegation of authority by the COMELEC, otherwise
known as deputation, which has long been upheld by the Court.
Same; View that in order for the COMELECs action in the present case to be
constitutionally valid, it must still be shown that the COMELECs determination of
probable cause was free from any attendant participation by the Executive.I
also cannot accept the ponencias strained reasoning that the creation of the
Joint Committee does not undermine the independence of the COMELEC
because the determination of probable cause ultimately pertains to the
COMELEC under Section 2 of Joint Order No. 001-2011. In my view, the
constitutionally objectionable arrangement of a shared responsibility between the
COMELEC and the DOJ is not saved by the existence of Section 2 of Joint Order
No. 001-2011. In order for the COMELECs action in the present case to be
constitutionally valid, it must still be shown that the COMELECs determination of
probable cause was free from any attendant participation by the Executive.
Same; Commission on Elections (COMELEC); View that the COMELEC, not the
Joint DOJ-COMELEC Committee, has the primary, if not exclusive, authority to
conduct preliminary investigation of election cases, and the creation of the Joint
DOJ-COMELEC Committee constitutes an unconstitutional abdication by the
COMELEC of its constitutionally-granted independence.The COMELEC, not
the Joint DOJ-COMELEC Committee, has the primary, if not exclusive, authority
to conduct preliminary investigation of election cases, and the creation of the
Joint DOJ-COMELEC Committee constitutes an unconstitutional abdication by
the COMELEC of its constitutionally-granted independence. In arriving at this
Dissent, I take into account, together with my above conclusion, the extent of
injury that can be caused to our electoral system by opening the COMELEC to
Executive intrusion, as well as the haste the petitioners pointed out.
RESOLUTION
PERALTA, J.:
For resolution are the separate motions for reconsideration filed by movants
Gloria Macapagal Arroyo (GMA)1 in G.R. No. 199118 and Jose Miguel T. Arroyo
(Mike Arroyo )2 in G.R. No. 199082 praying that the Court take a second look at
our September 18, 2012 Decision3 dismissing their petitions and supplemental
petitions against respondents Commission on Elections (Comelec), the
Department of Justice (DOJ), Senator Aquilino M. Pimentel III (Senator
Pimentel), Joint DOJ-Comelec Preliminary Investigation Committee (Joint
Committee) and DOJ-Comelec Fact-Finding Team (Fact-Finding Team), et al.
For a better perspective, we briefly state the relevant factual and procedural
antecedents as found by the Court in the assailed decision, to wit:
On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011
creating and constituting a Joint Committee and Fact-Finding Team (referred to
as Joint Panel) on the 2004 and 2007 National Elections electoral fraud and
manipulation cases. The Joint Committee was mandated to conduct the
necessary preliminary investigation on the basis of the evidence gathered and
the charges recommended by the Fact-Finding Team. The Fact-Finding Team, on
the other hand, was created for the purpose of gathering real, documentary, and
testimonial evidence which can be utilized in the preliminary investigation to be
conducted by the Joint Committee. Pursuant to Section 7 4 of the Joint Order, on
August 23, 2011, the Joint Committee promulgated its Rules of Procedure.
In its Initial Report5 dated October 20, 2011, the Fact-Finding Team concluded
that manipulation of the results in the May 14, 2007 senatorial elections in the
provinces of North and South Cotabato, and Maguindanao was indeed
perpetrated.6 The Fact-Finding Team recommended, among others, that
petitioner Benjamin S. Abalos, Sr. (Abalos) be subjected to preliminary
investigation for electoral sabotage for conspiring to manipulate the election
results in North and South Cotabato; that GMA and Abalos be subjected to
another preliminary investigation for manipulating the election results in
Maguindanao;7 and, that Mike Arroyo be subjected to further investigation. 8 The
case was docketed as DOJ-Comelec Case No. 001-2011.
Meanwhile, on October 17, 2011, Senator Pimentel filed a ComplaintAffidavit 9 for
Electoral Sabotage against petitioners and twelve others, and several John Does
and Jane Does. The case was docketed as DOJ-Comelec Case No. 002-2011.
On October 24, 2011, the Joint Committee issued two subpoenas against
petitioners in DOJ-Comelec Case Nos. 001-2011 and 002-2011. 10 On November
3, 2011, petitioners, through counsel, appeared before the Joint Committee 11 and
respondents therein were ordered to submit their Counter-Affidavits by November
14, 2011.12
Thereafter, petitioners filed before the Court separate Petitions for Certiorari and
Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO)
and/or Writ of Preliminary Injunction assailing the creation of the Joint
Panel.13 The petitions were eventually consolidated.
On November 14, 2011, Mike Arroyo filed a Motion to Defer Proceedings 14 before
the Joint Committee, in view of the pendency of his petition before the Court. On
the same day, GMA filed before the Joint Committee an Omnibus Motion Ad
Cautelam15 to require Senator Pimentel to furnish her with documents referred to
in his complaint-affidavit and for the production of election documents as basis
for the charge of electoral sabotage. GMA prayed that she be allowed to file her
counter-affidavit within ten (10) days from receipt of the requested
documents.16 Petitioner Abalos, for his part, filed a Motion to Suspend
Proceedings (Ex Abundante Ad Cautelam),17 in view of the pendency of his
petition brought before the Court.
In an Order18 dated November 15, 2011, the Joint Committee denied the
aforesaid motions of petitioners. GMA, subsequently, filed a motion for
reconsideration.19
On November 16, 2011, the Joint Committee promulgated a Joint Resolution
which was later indorsed to the Comelec.20 On November 18, 2011, the Comelec
en banc issued a Resolution21 approving and adopting the Joint Resolution
subject to modifications. The Comelec resolved, among others, that an
information for electoral sabotage be filed against GMA and Abalos, while the
charges against Mike Arroyo be dismissed for insufficiency of evidence.
On even date, pursuant to the above Resolution, the Comelecs Law Department
filed with the Regional Trial Court (RTC), Pasay City, an Information against
petitioner GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H. Bedol, for
violation of Section 42(b)(3) of Republic Act (RA) No. 9369, amending Section 27
(b) of RA 6646, docketed as Criminal Case No. RPSY-11-04432-CR. 22 The case
was raffled to Branch 112 and the corresponding Warrant of Arrest was issued
which was served on GMA on the same day.23
On November 18, 2011, GMA filed with the RTC an Urgent Omnibus Motion Ad
Cautelam24 with leave to allow the Joint Committee to resolve the motion for
reconsideration filed by GMA, to defer issuance of a warrant of arrest and a hold
departure order, and to proceed to judicial determination of probable cause. She,
likewise, filed with the Comelec a Motion to Vacate Ad Cautelam 25 praying that its
Resolution be vacated for being null and void. The RTC, nonetheless, issued a
Warrant for her arrest which was duly served. GMA was later arraigned and she
entered a plea of "not guilty." She was, for some time, on hospital arrest but was
able to obtain temporary liberty when her motion for bail was granted. At present,
she is again on hospital arrest by virtue of a warrant issued in another criminal
case.
On September 18, 2012, the Court rendered the assailed Decision, the
dispositive portion of which reads:
WHEREFORE, premises considered, the petitions and supplemental petitions
are DISMISSED. Comelec Resolution No. 9266 dated August 2, 2011, Joint
Order No. 001-2011 dated August 15, 2011, and the Fact- Finding Teams Initial
Report dated October 20, 2011, are declared VALID. However, the Rules of
Procedure on the Conduct of Preliminary Investigation on the Alleged Election
Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack
of publication.
In view of the constitutionality of the Joint Panel and the proceedings having
been conducted in accordance with Rule 112 of the Rules on Criminal Procedure
and Rule 34 of the Comelec Rules of Procedure, the conduct of the preliminary
investigation is hereby declared VALID.
Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where
the criminal cases for electoral sabotage against petitioners GMA and Abalos are
pending, proceed with dispatch.
SO ORDERED.26
Hence, these motions for reconsideration.
Issues
Mike Arroyo reiterates his arguments on the independence of the Comelec as
basis in nullifying the subject joint DOJ-Comelec resolutions. Echoing Justice
Arturo Brion in his Dissenting and Concurring Opinion,27 Mike Arroyo insists that
the creation of the Joint Panel undermines the decisional independence of the
Comelec.28
Mike Arroyo also maintains that the DOJ should conduct preliminary investigation
only when deputized by the Comelec but not exercise concurrent
jurisdiction.29 Finally, as has been repeatedly pointed out in his earlier pleadings
before the Court, Mike Arroyo claims that the proceedings involving the electoral
sabotage case were rushed because of pressures from the executive branch of
the government.30
For her part, GMA claims that in availing of the procedural remedies available,
she merely exercised her earnest efforts to defend herself and should not have
been deemed by the Court as acts which purportedly tend to demonstrate that
she either waived or forfeited her right to submit her counter-affidavit and
countervailing evidence.31 Citing several cases decided by the Court, she
likewise faults the Court in not upholding her right to ask for additional time within
which to submit her counter-affidavit and countervailing evidence. 32 GMA
highlights that the subject Comelec Resolution creating the Joint Panel is
different from the previous Comelec resolutions requesting the DOJ Secretary to
assign prosecutors to assist the Comelec, as the latter emphasize the role of the
DOJ as deputized agency in the conduct of preliminary investigation. She
maintains that it is the Comelec and not the Joint Committee that has the primary,
if not exclusive, authority to conduct preliminary investigation of election cases. 33
In their Consolidated Comment,34 respondents defend the creation of the Joint
Committee and argue that it does not undermine the independence of the
Comelec as a constitutional body because it is still the Comelec that ultimately
determines probable cause.35 As to the conduct of the preliminary investigation,
respondents maintain that no rights were violated as GMA was afforded the
opportunity to defend herself, submit her counter-affidavit and other
countervailing evidence.36 They, thus, consider GMAs claim of availing of the
remedial measures as "delaying tactics" employed to thwart the investigation of
charges against her by the Joint Committee.37
The Courts Ruling
Clearly from the above discussion, movants raise issues that have been
thoroughly explained by the Court in the assailed decision. The issues were all
addressed and the explanation was exhaustive, thus, we find no reason to
disturb the Courts conclusions.
At any rate, if only to address the motions of the movants herein and to put an
end to the questions attached to the creation of the Joint Panel and,
consequently, to the performance of their assigned tasks, we hereby reiterate our
findings and conclusions made in the assailed decision.
This is not the first time that the Court is confronted with the issue of whether the
Comelec has the exclusive power to investigate and prosecute cases of
violations of election laws. In Barangay Association for National Advancement
and Transparency (BANAT) Party-List v. Commission on Elections, 38 the
constitutionality of Section 4339 of RA 936940 had already been raised by
petitioners therein and addressed by the Court. While recognizing the Comelecs
exclusive power to investigate and prosecute cases under Batas Pambansa
Bilang 881 or the Omnibus Election Code, the Court pointed out that the framers
of the 1987 Constitution did not have such intention. This exclusivity is thus a
legislative enactment that can very well be amended by Section 43 of RA 9369.
Therefore, under the present law, the Comelec and other prosecuting arms of the
government, such as the DOJ, now exercise concurrent jurisdiction in the
investigation and prosecution of election offenses.
Indeed, as aptly pointed out by GMA, there is a discrepancy between Comelec
Resolution No. 346741 dated January 12, 2001 and Joint Order No. 001-2011,
dated August 15, 2011, creating and constituting a Joint Committee and Fact-
Finding Team on the 2004 and 2007 National Elections electoral fraud and
manipulation cases. However, GMA seemed to miss the date when these two
resolutions were promulgated by the Comelec. It is noteworthy that Comelec
Resolution No. 3467 was issued when Section 265 of the Omnibus Election
Code was still effective, while Joint Order No. 001-2011 as well as Comelec
Resolution Nos. 873342 and 905743 mentioned in the assailed decision but missed
out by GMA in her motion, were issued during the effectivity of Section 43 of RA
9369, giving the Comelec and other prosecuting arms of the government the
concurrent jurisdiction to investigate and prosecute election offenses. This
amendment paved the way for the discrepancy. In Comelec Resolution No. 3467,
the Comelec maintained the continuing deputation of prosecutors and the
Comelec Law Department was tasked to supervise the investigatory and
prosecutory functions of the task force pursuant to the mandate of the Omnibus
Election Code. However, with the amendment, the Comelec likewise changed the
tenor of the later resolutions to reflect the new mandate of the Comelec and other
prosecuting arms of the government now exercising concurrent jurisdiction. Thus,
the Comelec Law Department and the Office of the Chief State Prosecutor of the
DOJ were tasked to jointly supervise the investigatory and prosecutory functions
of the Comelec-DOJ Task Force. Considering, therefore, that the later
resolutions, including Joint Order No. 001-2011, were issued pursuant to Section
43 of RA 9369 amending Section 265 of BP 881 which was declared
"constitutional" in Banat, there is no reason for us to declare otherwise. To
maintain the previous role of other prosecuting arms of the government as mere
deputies despite the amendment would mean challenging Section 43 of RA 9369
anew which has already been settled in Banat.
To be sure, the creation of a Joint Committee is not repugnant to the concept of
"concurrent jurisdiction" authorized by the amendatory law. As we explained in
our September 18, 2012 Decision:
x x x The doctrine of concurrent jurisdiction means equal jurisdiction to deal with
the same subject matter. Contrary to the contention of the petitioners, there is no
prohibition on simultaneous exercise of power between two coordinate bodies.
What is prohibited is the situation where one files a complaint against a
respondent initially with one office (such as the Comelec) for preliminary
investigation which was immediately acted upon by said office and the re-filing of
substantially the same complaint with another office (such as the DOJ). The
subsequent assumption of jurisdiction by the second office over the cases filed
will not be allowed. Indeed, it is a settled rule that the body or agency that first
takes cognizance of the complaint shall exercise jurisdiction to the exclusion of
the others.
xxxx
None of these problems would likely arise in the present case. The Comelec and
the DOJ themselves agreed that they would exercise their concurrent jurisdiction
jointly. Although the preliminary investigation was conducted on the basis of two
complaints the initial report of the Fact-Finding Team and the complaint of
Senator Pimentel both complaints were filed with the Joint Committee.
Consequently, the complaints were filed with and the preliminary investigation
was conducted by only one investigative body. Thus, we find no reason to
disallow the exercise of concurrent jurisdiction jointly by those given such
authority. This is especially true in this case given the magnitude of the crimes
allegedly committed by petitioners. The joint preliminary investigation also serves
to maximize the resources and manpower of both the Comelec and the DOJ for
the prompt disposition of the cases.44
Notwithstanding the grant of concurrent jurisdiction, the Comelec and the DOJ
nevertheless included a provision in the assailed Joint Order whereby the
resolutions of the Joint Committee finding probable cause for election offenses
shall still be approved by the Comelec in accordance with the Comelec Rules of
Procedure.45 With more reason, therefore, that we cannot consider the creation of
the Joint Committee as an abdication of the Comelecs independence enshrined
in the 1987 Constitution.
Finally, we focus on the validity of the preliminary investigation conducted by the
Joint Committee.
The procedure in conducting the preliminary investigation is governed by Rule
112 of the Revised Rules on Criminal Procedure and Rule 34 of the Comelec
Rules of Procedure. Under both Rules,46 the respondent shall submit his counter-
affidavit and that of his witnesses and other supporting documents relied upon for
his defense, within ten (10) days from receipt of the subpoena, with the complaint
and supporting affidavits and documents.47Also in both Rules, respondent is
given the right to examine evidence, but such right of examination is limited only
to the documents or evidence submitted by complainants which she may not
have been furnished and to copy them at her expense. 48
As to the alleged denial of GMAs right to examine documents, we maintain that
no right was violated in view of the limitation of such right as set forth above. We
reiterate our explanation in the assailed decision, to wit:
While it is true that Senator Pimentel referred to certain election documents
which served as bases in the allegations of significant findings specific to the
protested municipalities involved, there were no annexes or attachments to the
complaint filed. As stated in the Joint Committees Order dated November 15,
2011 denying GMAs Omnibus Motion Ad Cautelam, Senator Pimentel was
ordered to furnish petitioners with all the supporting evidence. However, Senator
Pimentel manifested that he was adopting all the affidavits attached to the Fact-
Finding Teams Initial Report. Therefore, when GMA was furnished with the
documents attached to the Initial Report, she was already granted the right to
examine as guaranteed by the Comelec Rules of Procedure and the Rules on
Criminal Procedure. Those were the only documents submitted by the
complainants to the Committee. If there are other documents that were referred
to in Senator Pimentels complaint but were not submitted to the Joint
Committee, the latter considered those documents unnecessary at that point
(without foreclosing the relevance of other evidence that may later be presented
during the trial) as the evidence submitted before it were considered adequate to
find probable cause against her. x x x491wphi1
Neither was GMAs right violated when her motion for extension of time within
which to submit her counter-affidavit and countervailing evidence was
consequently denied. The Rules use the term "shall" in requiring the respondent
to submit counter-affidavit and other countervailing evidence within ten (10) days
from receipt of the subpoena. It is settled that the use of the word "shall" which is
a word of command, underscores the mandatory character of the rule. 50 As in any
other rule, though, liberality in the application may be allowed provided that the
party is able to present a compelling justification for the non-observance of the
mandatory rules. In the 2008 Revised Manual for Prosecutors, investigating
prosecutors allow or grant motions or requests for extension of time to submit
counter-affidavits when the interest of justice demands that respondent be given
reasonable time or sufficient opportunity to engage the services of counsel;
examine voluminous records submitted in support of the complaint or undertake
research on novel, complicated or technical questions or issues of law and facts
of the case.51
In this case, GMA claimed that she could not submit her counteraffidavit within
the prescribed period because she needed to examine documents mentioned in
Senator Pimentels complaint-affidavit. It appeared, however, that said
documents were not submitted to the Joint Committee and the only supporting
documents available were those attached to the Initial Report of the Fact-Finding
Team. Admittedly, GMA was furnished those documents. Thus, at the time she
asked for the extension of time within which to file her counter-affidavit, she very
well knew that the documents she was asking were not in the record of the case.
Obviously, she was not furnished those documents because they were not
submitted to the Joint Committee. Logically, she has no right to examine said
documents. We cannot, therefore, fault the Joint Committee in consequently
denying her motion for extension to file counter-affidavit as there was no
compelling justification for the non-observance of the period she was earlier
required to follow.
And as we held in the assailed decision:
There might have been overzealousness on the part of the Joint Committee in
terminating the investigation, endorsing the Joint Resolution to the Comelec for
approval, and in filing the information in court.
However, speed in the conduct of proceedings by a judicial or quasijudicial officer
cannot per se be instantly attributed to an injudicious performance of functions.
The orderly administration of justice remains the paramount consideration with
particular regard to the peculiar circumstances of each case. To be sure,
petitioners were given the opportunity to present countervailing evidence. Instead
of complying with the Joint Committees directive, several motions were filed but
were denied by the Joint Committee. Consequently, petitioners right to submit
counter-affidavit and countervailing evidence was forfeited. Taking into account
the constitutional right to speedy disposition of cases and following the
procedures set forth in the Rules on Criminal Procedure and the Comelec Rules
of Procedure, the Joint Committee finally reached its conclusion and referred the
case to the Comelec. The latter, in turn, performed its task and filed the
information in court. Indeed, petitioners were given the opportunity to be heard.
They even actively participated in the proceedings and in fact filed several
motions before the Joint Committee. Consistent with the constitutional mandate
of speedy disposition of cases, unnecessary delays should be avoided. 52
Finally, in our assailed decision, we already took judicial notice that not only did
GMA enter a plea of "not guilty," she also filed a Motion for Bail and after due
hearing, it was granted. Apparently, she benefited from the RTC Order giving her
temporary liberty. In filing the motion before the RTC and actively participating
therein, she has chosen to seek judicial remedy before the RTC where the
electoral sabotage case is pending instead of the executive remedy of going
back to the Joint Committee for the submission of her counter-affidavit and
countervailing evidence. Besides, as thoroughly discussed in the assailed
decision, the irregularity or even the absence of preliminary investigation does
not impair the validity of the information filed against her.
WHEREFORE, premises considered, the Motions for Reconsideration are
DENIED for lack of merit.
SO ORDERED.
G.R. No. 207264 June 25, 2013
REGINA ONGSIAKO REYES, Petitioner,
vs.
COMMISSION ON ELECTIONS and JOSEPH SOCORRO B.
TAN, Respondents.
RESOLUTION
PEREZ, J.:
Before the Court is a Petition for Certiorari with Prayer for Temporary Restraining
Order and/or Preliminary Injunction and/or Status Quo Ante Order dated 7 June
2013 filed by petitioner Regina Ongsiako Reyes, assailing the Resolutions dated
27 March 2013 and 14 May 2013 issued by public respondent Commission on
Elections (COMELEC) in SPA No. 13-053. The assailed Resolutions ordered the
cancellation of the Certificate of Candidacy of petitioner for the position of
Representative of the lone district of Marinduque.
On 31 October 2012, respondent Joseph Socorro Tan, a registered voter and
resident of the Municipality of Torrijos, Marinduque, filed before the COMELEC
an Amended Petition to Deny Due Course or to Cancel the Certificate of
Candidacy (COC) of petitioner on the ground that it contained material
misrepresentations, specifically: (1) that she is single when she is married to
Congressman Herminaldo I. Mandanas of Batangas;1 (2) that she is a resident of
Brgy. Lupac, Boac, Marinduque when she is a resident of Bauan, Batangas
which is the residence of her husband, and at the same time, when she is also a
resident of 135 J.P. Rizal, Brgy. Milagrosa, Quezon City as admitted in the
Directory of Congressional Spouses of the House of Representatives; 2 (3) that
her date of birth is 3 July 1964 when other documents show that her birthdate is
either 8 July 1959 or 3 July 1960;3(4) that she is not a permanent resident of
another country when she is a permanent resident or an immigrant 4 of the United
States of America;5 and (5) that she is a Filipino citizen when she is, in fact, an
American citizen.6
In her Answer, petitioner countered that, while she is publicly known to be the
wife of Congressman Herminaldo I. Mandanas (Congressman Mandanas), there
is no valid and binding marriage between them. According to petitioner, although
her marriage with Congressman Mandanas was solemnized in a religious rite, it
did not comply with certain formal requirements prescribed by the Family Code,
rendering it void ab initio.7 Consequently, petitioner argues that as she is not
duty-bound to live with Congressman Mandanas, then his residence cannot be
attributed to her.8 As to her date of birth, the Certificate of Live Birth issued by the
National Statistics Office shows that it was on 3 July 1964. 9 Lastly, petitioner
notes that the allegation that she is a permanent resident and/or a citizen of the
United States of America is not supported by evidence.10
During the course of the proceedings, on 8 February 2013, respondent filed a
"Manifestation with Motion to Admit Newly Discovered Evidence and Amended
List of Exhibits"11 consisting of, among others: (1) a copy of an article published
on the internet on 8 January 2013 entitled "Seeking and Finding the Truth about
Regina O. Reyes" with an Affidavit of Identification and Authenticity of Document
executed by its author Eliseo J. Obligacion, which provides a database record of
the Bureau of Immigration indicating that petitioner is an American citizen and a
holder of a U.S. passport; (2) a Certification of Travel Records of petitioner,
issued by Simeon Sanchez, Acting Chief, Verification and Certification Unit of the
Bureau of Immigration which indicates that petitioner used a U.S. Passport in her
various travels abroad.
On 27 March 2013, the COMELEC First Division issued a Resolution 12 cancelling
petitioners COC, to wit:
WHEREFORE, in view of the foregoing, the instant Petition is GRANTED.
Accordingly, the Certificate of Candidacy of respondent REGINA ONGSIAKO
REYES is hereby CANCELLED.
The COMELEC First Division found that, contrary to the declarations that she
made in her COC, petitioner is not a citizen of the Philippines because of her
failure to comply with the requirements of Republic Act (R.A.) No. 9225 or the
Citizenship Retention and Re-acquisition Act of 2003, namely: (1) to take an oath
of allegiance to the Republic of the Philippines; and (2) to make a personal and
sworn renunciation of her American citizenship before any public officer
authorized to administer an oath. In addition, the COMELEC First Division ruled
that she did not have the oneyear residency requirement under Section 6, Article
VI of the 1987 Constitution.13 Thus, she is ineligible to run for the position of
Representative for the lone district of Marinduque.
Not agreeing with the Resolution of the COMELEC First Division, petitioner filed
a Motion for Reconsideration14on 8 April 2013 claiming that she is a natural-born
Filipino citizen and that she has not lost such status by simply obtaining and
using an American passport. Additionally, petitioner surmised that the COMELEC
First Division relied on the fact of her marriage to an American citizen in
concluding that she is a naturalized American citizen. Petitioner averred,
however, that such marriage only resulted into dual citizenship, thus there is no
need for her to fulfill the twin requirements under R.A. No. 9225. Still, petitioner
attached an Affidavit of Renunciation of Foreign Citizenship sworn to before a
Notary Public on 24 September 2012. As to her alleged lack of the one-year
residency requirement prescribed by the Constitution, she averred that, as she
never became a naturalized citizen, she never lost her domicile of origin, which is
Boac, Marinduque.
On 14 May 2013, the COMELEC En Banc, promulgated a Resolution 15 denying
petitioners Motion for Reconsideration for lack of merit.
Four days thereafter or on 18 May 2013, petitioner was proclaimed winner of the
13 May 2013 Elections.
On 5 June 2013, the COMELEC En Banc issued a Certificate of
Finality16 declaring the 14 May 2013 Resolution of the COMELEC En Banc final
and executory, considering that more than twenty-one (21) days have elapsed
from the date of promulgation with no order issued by this Court restraining its
execution.17
On same day, petitioner took her oath of office18 before Feliciano R. Belmonte Jr.,
Speaker of the House of Representatives.
Petitioner has yet to assume office, the term of which officially starts at noon of
30 June 2013.
In the present Petition for Certiorari with Prayer for Temporary Restraining Order
and/or Preliminary Injunction and/or Status Quo Ante Order, petitioner raises the
following issues:19
31) Whether or not Respondent Comelec is without jurisdiction over
Petitioner who is a duly proclaimed winner and who has already taken
her oath of office for the position of Member of the House of
Representatives for the lone congressional district of Marinduque.
32) Whether or not Respondent Comelec committed grave abuse of
discretion amounting to lack or excess of jurisdiction when it took
cognizance of Respondent Tans alleged "newly-discovered evidence"
without the same having been testified on and offered and admitted in
evidence which became the basis for its Resolution of the case without
giving the petitioner the opportunity to question and present controverting
evidence, in violation of Petitioners right to due process of law.
33) Whether or not Respondent Comelec committed grave abuse of
discretion amounting to lack or excess of jurisdiction when it declared
that Petitioner is not a Filipino citizen and did not meet the residency
requirement for the position of Member of the House of Representatives.
34) Whether or not Respondent Commission on Elections committed
grave abuse of discretion amounting to lack or excess of jurisdiction
when, by enforcing the provisions of Republic Act No. 9225, it imposed
additional qualifications to the qualifications of a Member of the House of
Representatives as enumerated in Section 6 of Article VI of the 1987
Constitution of the Philippines.
The petition must fail.
At the outset, it is observed that the issue of jurisdiction of respondent
COMELEC vis-a-vis that of House of Representatives Electoral Tribunal (HRET)
appears to be a non-issue. Petitioner is taking an inconsistent, if not confusing,
stance for while she seeks remedy before this Court, she is asserting that it is the
HRET which has jurisdiction over her. Thus, she posits that the issue on her
eligibility and qualifications to be a Member of the House of Representatives is
best discussed in another tribunal of competent jurisdiction. It appears then that
petitioners recourse to this Court was made only in an attempt to enjoin the
COMELEC from implementing its final and executory judgment in SPA No. 13-
053.
Nevertheless, we pay due regard to the petition, and consider each of the issues
raised by petitioner. The need to do so, and at once, was highlighted during the
discussion En Banc on 25 June 2013 where and when it was emphasized that
the term of office of the Members of the House of Representatives begins on the
thirtieth day of June next following their election.
According to petitioner, the COMELEC was ousted of its jurisdiction when she
was duly proclaimed20 because pursuant to Section 17, Article VI of the 1987
Constitution, the HRET has the exclusive jurisdiction to be the "sole judge of all
contests relating to the election, returns and qualifications" of the Members of the
House of Representatives.
Contrary to petitioners claim, however, the COMELEC retains jurisdiction for the
following reasons:
First, the HRET does not acquire jurisdiction over the issue of petitioners
qualifications, as well as over the assailed COMELEC Resolutions, unless a
petition is duly filed with said tribunal. Petitioner has not averred that she has
filed such action.
Second, the jurisdiction of the HRET begins only after the candidate is
considered a Member of the House of Representatives, as stated in Section 17,
Article VI of the 1987 Constitution:
Section 17. The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests relating to the
election, returns, and qualifications of their respective Members. x x x
As held in Marcos v. COMELEC,21 the HRET does not have jurisdiction over a
candidate who is not a member of the House of Representatives, to wit:
As to the House of Representatives Electoral Tribunals supposed assumption of
jurisdiction over the issue of petitioners qualifications after the May 8, 1995
elections, suffice it to say that HRETs jurisdiction as the sole judge of all contests
relating to the elections, returns and qualifications of members of Congress
begins only after a candidate has become a member of the House of
Representatives. Petitioner not being a member of the House of
Representatives, it is obvious that the HRET at this point has no jurisdiction over
the question. (Emphasis supplied.)
The next inquiry, then, is when is a candidate considered a Member of the House
of Representatives?
In Vinzons-Chato v. COMELEC,22 citing Aggabao v. COMELEC23 and Guerrero v.
COMELEC,24 the Court ruled that:
The Court has invariably held that once a winning candidate has been
proclaimed, taken his oath, and assumed office as a Member of the House of
Representatives, the COMELECs jurisdiction over election contests relating to
his election, returns, and qualifications ends, and the HRETs own jurisdiction
begins. (Emphasis supplied.)
This pronouncement was reiterated in the case of Limkaichong v.
COMELEC,25 wherein the Court, referring to the jurisdiction of the COMELEC vis-
a-vis the HRET, held that:
The Court has invariably held that once a winning candidate has been
proclaimed, taken his oath, and assumed office as a Member of the House of
Representatives, the COMELEC's jurisdiction over election contests relating to
his election, returns, and qualifications ends, and the HRET's own jurisdiction
begins. (Emphasis supplied.)
This was again affirmed in Gonzalez v. COMELEC,26 to wit:
After proclamation, taking of oath and assumption of office by Gonzalez,
jurisdiction over the matter of his qualifications, as well as questions regarding
the conduct of election and contested returns were transferred to the HRET as
the constitutional body created to pass upon the same. (Emphasis supplied.)
From the foregoing, it is then clear that to be considered a Member of the House
of Representatives, there must be a concurrence of the following requisites: (1) a
valid proclamation, (2) a proper oath, and (3) assumption of office.
Indeed, in some cases, this Court has made the pronouncement that once a
proclamation has been made, COMELECs jurisdiction is already lost and, thus,
its jurisdiction over contests relating to elections, returns, and qualifications ends,
and the HRETs own jurisdiction begins. However, it must be noted that in these
cases, the doctrinal pronouncement was made in the context of a proclaimed
candidate who had not only taken an oath of office, but who had also assumed
office.
For instance, in the case of Dimaporo v. COMELEC,27 the Court upheld the
jurisdiction of the HRET against that of the COMELEC only after the candidate
had been proclaimed, taken his oath of office before the Speaker of the House,
and assumed the duties of a Congressman on 26 September 2007, or after the
start of his term on 30 June 2007, to wit:
On October 8, 2007, private respondent Belmonte filed his comment in which he
brought to Our attention that on September 26, 2007, even before the issuance
of the status quo ante order of the Court, he had already been proclaimed by the
PBOC as the duly elected Member of the House of Representatives of the First
Congressional District of Lanao del Norte. On that very same day, he had taken
his oath before Speaker of the House Jose de Venecia, Jr. and assumed his
duties accordingly.
In light of this development, jurisdiction over this case has already been
transferred to the House of Representatives Electoral Tribunal (HRET).
(Emphasis supplied.)
Apparently, the earlier cases were decided after the questioned candidate had
already assumed office, and hence, was already considered a Member of the
House of Representatives, unlike in the present case.
Here, the petitioner cannot be considered a Member of the House of
Representatives because, primarily, she has not yet assumed office. To repeat
what has earlier been said, the term of office of a Member of the House of
Representatives begins only "at noon on the thirtieth day of June next following
their election."28 Thus, until such time, the COMELEC retains jurisdiction.
In her attempt to comply with the second requirement, petitioner attached a
purported Oath Of Office taken before Hon. Feliciano Belmonte Jr. on 5 June
2013. However, this is not the oath of office which confers membership to the
House of Representatives.
Section 6, Rule II (Membership) of the Rules of the House of Representatives
provides:
Section 6. Oath or Affirmation of Members. Members shall take their oath or
affirmation either collectively or individually before the Speaker in open session.
Consequently, before there is a valid or official taking of the oath it must be made
(1) before the Speaker of the House of Representatives, and (2) in open session.
Here, although she made the oath before Speaker Belmonte, there is no
indication that it was made during plenary or in open session and, thus, it
remains unclear whether the required oath of office was indeed complied with.
More importantly, we cannot disregard a fact basic in this controversy that
before the proclamation of petitioner on 18 May 2013, the COMELEC En Banc
had already finally disposed of the issue of petitioners lack of Filipino citizenship
and residency via its Resolution dated 14 May 2013. After 14 May 2013, there
was, before the COMELEC, no longer any pending case on petitioners
qualifications to run for the position of Member of the House of Representative.
We will inexcusably disregard this fact if we accept the argument of the petitioner
that the COMELEC was ousted of jurisdiction when she was proclaimed, which
was four days after the COMELEC En Banc decision. The Board of Canvasser
which proclaimed petitioner cannot by such act be allowed to render nugatory a
decision of the COMELEC En Banc which affirmed a decision of the COMELEC
First Division.
Indeed, the assailed Resolution of the COMELEC First Division which was
promulgated on 27 March 2013, and the assailed Resolution of the COMELEC
En Banc which was promulgated on 14 May 2013, became final and executory
on 19 May 2013 based on Section 3, Rule 37 of the COMELEC Rules of
Procedure which provides:
Section 3. Decisions Final after five days. Decisions in pre-proclamation cases
and petitions to deny due course to or cancel certificates of candidacy, to declare
nuisance candidate or to disqualify a candidate, and to postpone or suspend
elections shall become final and executory after the lapse of five (5) days from
their promulgation unless restrained by the Supreme Court.
To prevent the assailed Resolution dated 14 May 2013 from becoming final and
executory, petitioner should have availed herself of Section 1, Rule 37 29 of the
COMELEC Rules of Procedure or Rule 6430 of the Rules of Court by filing a
petition before this Court within the 5-day period, but she failed to do so. She
would file the present last hour petition on 10 June 2013. Hence, on 5 June 2013,
respondent COMELEC rightly issued a Certificate of Finality.
As to the issue of whether petitioner failed to prove her Filipino citizenship, as
well as her one-year residency in Marinduque, suffice it to say that the
COMELEC committed no grave abuse of discretion in finding her ineligible for the
position of Member of the House of Representatives.
Petitioner alleges that the COMELEC gravely abused its discretion when it took
cognizance of "newly-discovered evidence" without the same having been
testified on and offered and admitted in evidence. She assails the admission of
the blog article of Eli Obligacion as hearsay and the photocopy of the
Certification from the Bureau of Immigration. She likewise contends that there
was a violation of her right to due process of law because she was not given the
opportunity to question and present controverting evidence.
Her contentions are incorrect.
It must be emphasized that the COMELEC is not bound to strictly adhere to the
technical rules of procedure in the presentation of evidence. Under Section 2 of
Rule I, the COMELEC Rules of Procedure "shall be liberally construed in order x
xx to achieve just, expeditious and inexpensive determination and disposition of
every action and proceeding brought before the Commission." In view of the fact
that the proceedings in a petition to deny due course or to cancel certificate of
candidacy are summary in nature, then the "newly discovered evidence" was
properly admitted by respondent COMELEC.
Furthermore, there was no denial of due process in the case at bar as petitioner
was given every opportunity to argue her case before the COMELEC. From 10
October 2012 when Tans petition was filed up to 27 March 2013 when the First
Division rendered its resolution, petitioner had a period of five (5) months to
adduce evidence. Unfortunately, she did not avail herself of the opportunity given
her.
Also, in administrative proceedings, procedural due process only requires that
the party be given the opportunity or right to be heard. As held in the case of
Sahali v. COMELEC:31
The petitioners should be reminded that due process does not necessarily mean
or require a hearing, but simply an opportunity or right to be heard. One may be
heard, not solely by verbal presentation but also, and perhaps many times more
creditably and predictable than oral argument, through pleadings. In
administrative proceedings moreover, technical rules of procedure and evidence
are not strictly applied; administrative process cannot be fully equated with due
process in its strict judicial sense. Indeed, deprivation of due process cannot be
successfully invoked where a party was given the chance to be heard on his
motion for reconsideration. (Emphasis supplied)
As to the ruling that petitioner is ineligible to run for office on the ground of
citizenship, the COMELEC First Division, discoursed as follows:
"x x x for respondent to reacquire her Filipino citizenship and become eligible for
public office, the law requires that she must have accomplished the following
acts: (1) take the oath of allegiance to the Republic of the Philippines before the
Consul-General of the Philippine Consulate in the USA; and (2) make a personal
and sworn renunciation of her American citizenship before any public officer
authorized to administer an oath.
In the case at bar, there is no showing that respondent complied with the
aforesaid requirements. Early on in the proceeding, respondent hammered on
petitioners lack of proof regarding her American citizenship, contending that it is
petitioners burden to present a case. She, however, specifically denied that she
has become either a permanent resident or naturalized citizen of the USA.
Due to petitioners submission of newly-discovered evidence thru a Manifestation
dated February 7, 2013, however, establishing the fact that respondent is a
holder of an American passport which she continues to use until June 30, 2012,
petitioner was able to substantiate his allegations. The burden now shifts to
respondent to present substantial evidence to prove otherwise. This, the
respondent utterly failed to do, leading to the conclusion inevitable that
respondent falsely misrepresented in her COC that she is a natural-born Filipino
citizen. Unless and until she can establish that she had availed of the privileges
of RA 9225 by becoming a dual Filipino-American citizen, and thereafter, made a
valid sworn renunciation of her American citizenship, she remains to be an
American citizen and is, therefore, ineligible to run for and hold any elective
public office in the Philippines."32(Emphasis supplied.)
Let us look into the events that led to this petition: In moving for the cancellation
of petitioners COC, respondent submitted records of the Bureau of Immigration
showing that petitioner is a holder of a US passport, and that her status is that of
a "balikbayan." At this point, the burden of proof shifted to petitioner, imposing
upon her the duty to prove that she is a natural-born Filipino citizen and has not
lost the same, or that she has reacquired such status in accordance with the
provisions of R.A. No. 9225. Aside from the bare allegation that she is a natural-
born citizen, however, petitioner submitted no proof to support such contention.
Neither did she submit any proof as to the inapplicability of R.A. No. 9225 to her.
Notably, in her Motion for Reconsideration before the COMELEC En Banc,
petitioner admitted that she is a holder of a US passport, but she averred that
she is only a dual Filipino-American citizen, thus the requirements of R.A. No.
9225 do not apply to her.33 Still, attached to the said motion is an Affidavit of
Renunciation of Foreign Citizenship dated 24 September 2012. 34 Petitioner
explains that she attached said Affidavit "if only to show her desire and zeal to
serve the people and to comply with rules, even as a superfluity." 35 We cannot,
however, subscribe to petitioners explanation. If petitioner executed said Affidavit
"if only to comply with the rules," then it is an admission that R.A. No. 9225
applies to her. Petitioner cannot claim that she executed it to address the
observations by the COMELEC as the assailed Resolutions were promulgated
only in 2013, while the Affidavit was executed in September 2012.
Moreover, in the present petition, petitioner added a footnote to her oath of office
as Provincial Administrator, to this effect: "This does not mean that Petitioner did
not, prior to her taking her oath of office as Provincial Administrator, take her oath
of allegiance for purposes of reacquisition of natural-born Filipino status, which
she reserves to present in the proper proceeding. The reference to the taking of
oath of office is in order to make reference to what is already part of the records
and evidence in the present case and to avoid injecting into the records evidence
on matters of fact that was not previously passed upon by Respondent
COMELEC."36 This statement raises a lot of questions Did petitioner execute
an oath of allegiance for re-acquisition of natural-born Filipino status? If she did,
why did she not present it at the earliest opportunity before the COMELEC? And
is this an admission that she has indeed lost her natural-born Filipino status?
To cover-up her apparent lack of an oath of allegiance as required by R.A. No.
9225, petitioner contends that, since she took her oath of allegiance in
connection with her appointment as Provincial Administrator of Marinduque, she
is deemed to have reacquired her status as a natural-born Filipino citizen.
This contention is misplaced. For one, this issue is being presented for the first
time before this Court, as it was never raised before the COMELEC. For another,
said oath of allegiance cannot be considered compliance with Sec. 3 of R.A. No.
9225 as certain requirements have to be met as prescribed by Memorandum
Circular No. AFF-04-01, otherwise known as the Rules Governing Philippine
Citizenship under R.A. No. 9225 and Memorandum Circular No. AFF-05-002
(Revised Rules) and Administrative Order No. 91, Series of 2004 issued by the
Bureau of Immigration. Thus, petitioners oath of office as Provincial
Administrator cannot be considered as the oath of allegiance in compliance with
R.A. No. 9225.
These circumstances, taken together, show that a doubt was clearly cast on
petitioners citizenship. Petitioner, however, failed to clear such doubt.
As to the issue of residency, proceeding from the finding that petitioner has lost
her natural-born status, we quote with approval the ruling of the COMELEC First
Division that petitioner cannot be considered a resident of Marinduque:
"Thus, a Filipino citizen who becomes naturalized elsewhere effectively
abandons his domicile of origin. Upon re-acquisition of Filipino citizenship
pursuant to RA 9225, he must still show that he chose to establish his domicile in
the Philippines through positive acts, and the period of his residency shall be
counted from the time he made it his domicile of choice.
In this case, there is no showing whatsoever that petitioner had already re-
acquired her Filipino citizenship pursuant to RA 9225 so as to conclude that she
has regained her domicile in the Philippines. There being no proof that petitioner
had renounced her American citizenship, it follows that she has not abandoned
her domicile of choice in the USA.
The only proof presented by petitioner to show that she has met the one-year
residency requirement of the law and never abandoned her domicile of origin in
Boac, Marinduque is her claim that she served as Provincial Administrator of the
province from January 18, 2011 to July 13, 2011. But such fact alone is not
sufficient to prove her one-year residency. For, petitioner has never regained her
domicile in Marinduque as she remains to be an American citizen. No amount of
her stay in the said locality can substitute the fact that she has not abandoned
her domicile of choice in the USA."37 (Emphasis supplied.)
All in all, considering that the petition for denial and cancellation of the COC is
summary in nature, the COMELEC is given much discretion in the evaluation and
admission of evidence pursuant to its principal objective of determining of
whether or not the COC should be cancelled. We held in Mastura v. COMELEC: 38
The rule that factual findings of administrative bodies will not be disturbed by
courts of justice except when there is absolutely no evidence or no substantial
evidence in support of such findings should be applied with greater force when it
concerns the COMELEC, as the framers of the Constitution intended to place the
COMELEC created and explicitly made independent by the Constitution itself
on a level higher than statutory administrative organs. The COMELEC has
broad powers to ascertain the true results of the election by means available to it.
For the attainment of that end, it is not strictly bound by the rules of
evidence.1wphi1
Time and again, We emphasize that the "grave abuse of discretion" which
warrants this Courts exercise of certiorari jurisdiction has a welldefined meaning.
Guidance is found in Beluso v. Commission on Elections39 where the Court held:
x x x A petition for certiorari will prosper only if grave abuse of discretion is
alleged and proved to exist. "Grave abuse of discretion," under Rule 65, has a
specific meaning. It is the arbitrary or despotic exercise of power due to passion,
prejudice or personal hostility; or the whimsical, arbitrary, or capricious exercise
of power that amounts to an evasion or refusal to perform a positive duty
enjoined by law or to act at all in contemplation of law. For an act to be struck
down as having been done with grave abuse of discretion, the abuse of
discretion must be patent and gross. (Emphasis supplied.)
Here, this Court finds that petitioner failed to adequately and substantially show
that grave abuse of discretion exists.
Lastly, anent the proposition of petitioner that the act of the COMELEC in
enforcing the provisions of R.A. No. 9225, insofar as it adds to the qualifications
of Members of the House of Representatives other than those enumerated in the
Constitution, is unconstitutional, We find the same meritless.
The COMELEC did not impose additional qualifications on candidates for the
House of Representatives who have acquired foreign citizenship. It merely
applied the qualifications prescribed by Section 6, Article VI of the 1987
Constitution that the candidate must be a natural-born citizen of the Philippines
and must have one-year residency prior to the date of elections. Such being the
case, the COMELEC did not err when it inquired into the compliance by petitioner
of Sections 3 and 5 of R.A. No. 9225 to determine if she reacquired her status as
a natural-born Filipino citizen. It simply applied the constitutional provision and
nothing more.
IN VIEW OF THE FOREGOING, the instant petition is DISMISSED, finding no
grave abuse of discretion on the part of the Commission on Elections. The 14
May 2013 Resolution of the COMELEC En Bane affirming the 27 March 2013
Resolution of the COMELEC First Division is upheld.
SO ORDERED.
G.R. No. 207264 October 22, 2013
REGINA ONGSIAKO REYES, Petitioner,
vs.
COMMISSION ON ELECTIONS and JOSEPH SOCORRO B.
TAN, Respondents.
Election Law; Commission on Elections (COMELEC); In Special Actions and
Special Cases a decision or resolution of the Commission En Banc shall become
final and executory after five (5) days from its promulgation unless restrained by
the Supreme Court.The COMELEC Rules indicate the manner by which the
impediment to proclamation may be removed. Rule 18, Section 13 (b) provides:
(b) In Special Actions and Special Cases a decision or resolution of the
Commission En Banc shall become final and executory after five (5) days from its
promulgation unless restrained by the Supreme Court. Within that five (5) days,
petitioner had the opportunity to go to the Supreme Court for a restraining order
that will remove the immediate effect of the En Banc cancellation of her certificate
of candidacy. Within the five (5) days the Supreme Court may remove the barrier
to, and thus allow, the proclamation of petitioner. That did not happen. Petitioner
did not move to have it happen. It is error to argue that the five days should pass
before the petitioner is barred from being proclaimed. Petitioner lost in the
COMELEC as respondent. Her certificate of candidacy has been ordered
cancelled. She could not be proclaimed because there was a final finding against
her by the COMELEC. She needed a restraining order from the Supreme Court
to avoid the final finding. After the five days when the decision adverse to her
became executory, the need for Supreme Court intervention became even more
imperative. She would have to base her recourse on the position that the
COMELEC committed grave abuse of discretion in cancelling her certificate of
candidacy and that a restraining order, which would allow her proclamation, will
have to be based on irreparable injury and demonstrated possibility of grave
abuse of discretion on the part of the COMELEC. In this case, before and after
the 18 May 2013 proclamation, there was not even an attempt at the legal
remedy, clearly available to her, to permit her proclamation. What petitioner did
was to take the law into her hands and secure a proclamation in complete
disregard of the COMELEC En Banc decision that was final on 14 May 2013 and
final and executory five days thereafter.
Same; Electoral Tribunals; House of Representatives Electoral Tribunal (HRET);
That the House of Representatives Electoral Tribunal (HRET) is the sole judge of
all contests relating to the election, returns and qualifications of the Members of
the House of Representatives is a written constitutional provision.Petitioner is
in error when she posits that at present it is the HRET which has exclusive
jurisdiction over her qualifications as a Member of the House of Representatives.
That the HRET is the sole judge of all contests relating to the election, returns
and qualifications of the Members of the House of Representatives is a written
constitutional provision. It is, however unavailable to petitioner because she is
NOT a Member of the House at present. The COMELEC never ordered her
proclamation as the rightful winner in the election for such membership. Indeed,
the action for cancellation of petitioners certificate of candidacy, the decision in
which is the indispensable determinant of the right of petitioner to proclamation,
was correctly lodged in the COMELEC, was completely and fully litigated in the
COMELEC and was finally decided by the COMELEC. On and after 14 May
2013, there was nothing left for the COMELEC to do to decide the case. The
decision sealed the proceedings in the COMELEC regarding petitioners
ineligibility as a candidate for Representative of Marinduque. The decision
erected the bar to petitioners proclamation. The bar remained when no
restraining order was obtained by petitioner from the Supreme Court within five
days from 14 May 2013.
Same; Certificates of Candidacy; Cancellation of Certificate of Candidacy; The
special action before the COMELEC which was a Petition to Cancel Certificate of
Candidacy was a summary proceeding or one heard summarily.The special
action before the COMELEC which was a Petition to Cancel Certificate of
Candidacy was a SUMMARY PROCEEDING or one heard summarily. The
nature of the proceedings is best indicated by the COMELEC Rule on Special
Actions, Rule 23, Section 4 of which states that the Commission may designate
any of its officials who are members of the Philippine Bar to hear the case and to
receive evidence. COMELEC Rule 17 further provides in Section 3 that when the
proceedings are authorized to be summary, in lieu of oral testimonies, the parties
may, after due notice, be required to submit their position paper together with
affidavits, counter-affidavits and other documentary evidence; x x x and that
[t]his provision shall likewise apply to cases where the hearing and reception of
evidence are delegated by the Commission or the Division to any of its officials x
x x.
Remedial Law; Special Civil Actions; Certiorari; Words and Phrases; The special
and civil action of Certiorari is defined in the Rules of Court thus: When any
tribunal, board or officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs
as law and justice may require.The special and civil action of Certiorari is
defined in the Rules of Court thus: When any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in
the ordinary course of law, a person aggrieved thereby may file a verified petition
in the proper court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require. The accepted
definition of grave abuse of discretion is: a capricious and whimsical exercise of
judgment so patent and gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law, as where the power is exercised
in an arbitrary and despotic manner because of passion or hostility.
Election Law; Certificates of Candidacy; Commission on Elections (COMELEC);
The COMELEC covers the matter of petitioners certificate of candidacy, and its
due course or its cancellation, which are the pivotal conclusions that determines
who can be legally proclaimed.It may need pointing out that there is no conflict
between the COMELEC and the HRET insofar as the petitioners being a
Representative of Marinduque is concerned. The COMELEC covers the matter of
petitioners certificate of candidacy, and its due course or its cancellation, which
are the pivotal conclusions that determines who can be legally proclaimed. The
matter can go to the Supreme Court but not as a continuation of the proceedings
in the COMELEC, which has in fact ended, but on an original action before the
Court grounded on more than mere error of judgment but on error of jurisdiction
for grave abuse of discretion. At and after the COMELEC En Banc decision,
there is no longer any certificate cancellation matter than can go to the HRET.
Same; House of Representatives Electoral Tribunal (HRET); The House of
Representatives Electoral Tribunal (HRET) jurisdiction over the qualification of
the Member of the House of Representatives is original and exclusive, and as
such, proceeds de novo unhampered by the proceedings in the COMELEC
which, as just stated has been terminated. The HRET proceedings is a regular,
not summary, proceeding.The HRETs constitutional authority opens, over the
qualification of its MEMBER, who becomes so only upon a duly and legally
based proclamation, the first and unavoidable step towards such membership.
The HRET jurisdiction over the qualification of the Member of the House of
Representatives is original and exclusive, and as such, proceeds de novo
unhampered by the proceedings in the COMELEC which, as just stated has been
terminated. The HRET proceedings is a regular, not summary, proceeding. It will
determine who should be the Member of the House. It must be made clear
though, at the risk of repetitiveness, that no hiatus occurs in the representation of
Marinduque in the House because there is such a representative who shall sit as
the HRET proceedings are had till termination. Such representative is the duly
proclaimed winner resulting from the terminated case of cancellation of certificate
of candidacy of petitioner. The petitioner is not, cannot, be that representative.
And this, all in all, is the crux of the dispute between the parties: who shall sit in
the House in representation of Marinduque, while there is yet no HRET decision
on the qualifications of the Member.
Remedial Law; Jurisdiction; Jurisdiction, once acquired, is not lost upon the
instance of the parties, but continues until the case is terminated.The motion to
withdraw petition filed AFTER the Court has acted thereon, is noted. It may well
be in order to remind petitioner that jurisdiction, once acquired, is not lost upon
the instance of the parties, but continues until the case is terminated. When
petitioner filed her Petition for Certiorari, jurisdiction vested in the Court and, in
fact, the Court exercised such jurisdiction when it acted on the petition. Such
jurisdiction cannot be lost by the unilateral withdrawal of the petition by petitioner.
More importantly, the Resolution dated 25 June 2013, being a valid court
issuance, undoubtedly has legal consequences. Petitioner cannot, by the mere
expediency of withdrawing the petition, negative and nullify the Courts
Resolution and its legal effects. At this point, we counsel petitioner against trifling
with court processes. Having sought the jurisdiction of the Supreme Court,
petitioner cannot withdraw her petition to erase the ruling adverse to her
interests. Obviously, she cannot, as she designed below, subject to her
predilections the supremacy of the law.
Sereno, CJ., Separate Concurring Opinion:
Election Law; Electoral Tribunals; Jurisdiction; View that the 1987 Constitution
transferred the jurisdiction of the COMELEC to the electoral tribunals of the
Senate and the House of Representatives to be the sole judge[s] of all contests
relating to the election, returns, and qualifications of their respective Members,
but the constitutional language has not changed.The 1987 Constitution
transferred the jurisdiction of the COMELEC to the electoral tribunals of the
Senate and the House of Representatives to be the sole judge[s] of all contests
relating to the election, returns, and qualifications of their respective Members,
but the constitutional language has not changed. The jurisdiction granted was
similar to that of the COMELEC under the 1973 Constitution, which the Court
interpreted to mean full authority to hear and decide these cases from beginning
to end and on all matters related thereto, including those arising before the
proclamation of the winners. When the same language was adopted in the 1987
Constitution, it must be interpreted in the same way. Thus, petitions to deny due
course or to cancel the certificate of candidacy of those aspiring to be members
of the Senate or the House of Representatives under Section 78 of the Omnibus
Election Code should be under the jurisdiction of the electoral tribunals and not of
the COMELEC.
Same; Due Process; View that the right of petitioner to due process was never
violated, as she was given every opportunity to present her side during the
reception of evidence at the Division level.The right of petitioner to due process
was never violated, as she was given every opportunity to present her side
during the reception of evidence at the Division level. She was furnished a copy
of the Manifestation with Motion to Admit Newly Discovered Evidence and
Amended List of Exhibits. She had all the right to interpose her objections to the
documentary evidence offered against her, but she failed to exercise that right.
The COMELEC First Division, therefore, did not commit any grave abuse of
discretion when it admitted in evidence the documents offered, even if the printed
Internet article showing that petitioner had used a U.S. passport might have been
hearsay, and even if the copy of the Bureau of Immigration Certification was
merely a photocopy and not even a certified true copy of the original.
Same; View that Section 1, Rule 41 of the COMELEC Rules of Procedure
provides for the suppletory application of the Rules of Court. The third paragraph
of Section 36, Rule 132 of the Revised Rules of Evidence provides that an offer
of evidence in writing shall be objected to within three (3) days after notice of the
offer unless a different period is allowed by the court.Section 1, Rule 41 of the
COMELEC Rules of Procedure provides for the suppletory application of the
Rules of Court. The third paragraph of Section 36, Rule 132 of the Revised Rules
of Evidence provides that an offer of evidence in writing shall be objected to
within three (3) days after notice of the offer unless a different period is allowed
by the court. Petitioner failed to raise any objection to the offer of evidence on
time. It is now too late for her to question its admissibility. The rule is that
evidence not objected to may be deemed admitted and validly considered by the
court in arriving at its judgment. As a corollary point, the COMELEC En Banc
committed no grave abuse of discretion when it did not set petitioners Motion for
Reconsideration for hearing. Setting a case for hearing is discretionary on its
part. In fact, in summary proceedings like the special action of filing a petition to
deny due course or to cancel a certificate of candidacy, oral testimony is
dispensed with and, instead, parties are required to submit their position paper
together with affidavits, counter affidavits and other pieces of documentary
evidence.
Same; The COMELEC was correct in ruling that she was no longer a Filipino
citizen when she filed her Certificate of Candidacy and that without complying
with the requirements of R.A. 9225, she was not qualified to run for public
office.This submission of the Affidavit of Renunciation of Foreign Citizenship
and the Identification Certificate issued by the Bureau of Immigration confirms
the acquisition of foreign citizenship by petitioner and the applicability of R.A.
9225 to her. Thus, the COMELEC was correct in ruling that she was no longer a
Filipino citizen when she filed her Certificate of Candidacy and that without
complying with the requirements of R.A. 9225, she was not qualified to run for
public office. Since these two documents were not submitted to the COMELEC,
there can be no grave abuse of discretion either on the part of the COMELEC
First Division when it cancelled her Certificate of Candidacy, or on the part of the
COMELEC En Banc when it affirmed the cancellation.
Same; View that the Provincial Board of Canvassers (PBOC), a subordinate body
under the direct control and supervision of the COMELEC, cannot simply
disregard a COMELEC En Banc Resolutionbrought before its attention and
hastily proceed with the proclamation by reasoning that it has not officially
received the resolution or order.On 16 May 2013, petitioner had already
received the judgment cancelling her Certificate of Candidacy. As mentioned, two
days thereafter, the PBOC still proclaimed her as the winner. Obviously, the
proclamation took place notwithstanding that petitioner herself already knew of
the COMELEC En Banc Resolution. It must also be pointed out that even the
PBOC already knew of the cancellation of the Certificate of Candidacy of
petitioner when it proclaimed her. The COMELEC En Banc Resolution dated 9
July 2013 and submitted to this Court through the Manifestation of private
respondent, quoted the averments in the Verified Petition of petitioner therein as
follows: xxx While the proceedings of the PBOC is suspended or in recess, the
process server of this Honorable Commission, who identified himself as PEDRO
P. STA. ROSA II (Sta. Rosa, for brevity), arrived at the session hall of the
Sangguniang Panlalawigan of Marinduque where the provincial canvassing is
being held. xxx The process server, Sta. Rosa, was in possession of certified true
copies of the Resolution promulgated by the Commission on Elections En Banc
on 14 May 2013 in SPA No. 13-053 (DC) entitled Joseph Socorro B. Tan vs. Atty.
Regina Ongsiako Reyes and an Order dated 15 May 2013 to deliver the same to
the Provincial Election Supervisor of Marinduque. The said Order was signed by
no less than the Chairman of the Commission on Elections, the Honorable Sixto
S. Brillantes, Jr. xxx Process Server Pedro Sta. Rosa II immediately approached
Atty. Edwin Villa, the Provincial Election Supervisor (PES) of Marinduque, upon
his arrival to serve a copy of the aforementioned Resolution dated 14 May 2013
in SPA No. 13-05 3 (DC). Despite his proper identification that he is a process
server from the COMELEC Main Office, the PES totally ignored Process Server
Pedro Sta. Rosa II. xxx Interestingly, the PES likewise refused to receive the
copy of the Commission on Elections En Banc Resolution dated 14 May 2013 in
SPA No. 13-053 (DC) despite several attempts to do so. xxx Instead, the PES
immediately declared the resumption of the proceedings of the PBOC and
instructed the Board Secretary to immediately read its Order proclaiming Regina
Ongsiako Reyes as winner for the position of Congressman for the Lone District
of Marinduque. This narration of the events shows that the proclamation was in
contravention of a COMELEC En Banc Resolution cancelling the candidates
Certificate of Candidacy. The PBOC, a subordinate body under the direct control
and supervision of the COMELEC, cannot simply disregard a COMELEC En
Banc Resolution brought before its attention and hastily proceed with the
proclamation by reasoning that it has not officially received the resolution or
order.
Same; View that the law provides for the suspension of a proclamation whenever
there are pending disqualification cases or petitions to deny due course to or
cancel a certificate of candidacy, and the evidence of guilt is strong.The law
provides for the suspension of a proclamation whenever there are pending
disqualification cases or petitions to deny due course to or cancel a certificate of
candidacy, and the evidence of guilt is strong. This provision points to the
legislative intent to be cautious in proceeding with the proclamation of candidates
against whom pending disqualification cases or petitions for cancellation of
certificate of candidacy are filed. When the petition for cancellation of the
certificate of candidacy is no longer pending as when the COMELEC En Banc
had, in fact, affirmed the cancellation of the certificate of candidacy, the need for
the suspension of the proclamation becomes more apparent.
Same; Prejudicial Questions; View that applying the elements of a prejudicial
question to Secs. 6 and 7 of R.A. 6646 on the pendency of disqualification cases
or of petitions filed under Sec. 78 call for the suspension of the proclamation of a
candidate when the evidence of guilt or the likelihood of the cancellation of the
certificate of candidacy is strong.The elements of a prejudicial question in
criminal actions as set forth in Sec. 7, Rule 111 of the Rules of Criminal
Procedure, as follows: (a) The previously instituted civil action involves an issue
similar or intimately related to that issue raised in the subsequent criminal action.
(b) The resolution of this issue determines whether or not the criminal action may
proceed. Applying the elements of a prejudicial question to Secs. 6 and 7 of R.A.
6646 on the pendency of disqualification cases or of petitions filed under Sec. 78
call for the suspension of the proclamation of a candidate when the evidence of
guilt or the likelihood of the cancellation of the certificate of candidacy is strong.
The main issue in the disqualification case or the Petition to cancel the Certificate
of Candidacy is directly related to and, is, in fact, the crucial element that must be
decided before a proclamation can be had.
CarpiO, J., Dissenting Opinion:
Election Law; House of Representatives Electoral Tribunal (HRET); Jurisdiction;
View that the Supreme Court has consistently ruled that proclamation alone of a
winning congressional candidate following the elections divests COMELEC of its
jurisdiction over disputes relating to the election, returns, and qualifications of the
proclaimed representative in favor of the House of Representatives Electoral
Tribunal (HRET).We have consistently ruled that proclamation alone of a
winning congressional candidate following the elections divests COMELEC of its
jurisdiction over disputes relating to the election, returns, and qualifications of the
proclaimed representative in favor of the HRET. Proclamation alone of a winning
congressional candidate is sufficient, and is the only essential act to vest
jurisdiction upon the HRET. Taking of the oath and assumption of office are
merely descriptive of what necessarily comes after proclamation. In Jalosjos v.
COMELEC, 674 SCRA 530 (2012), the most recent decision on the matter, the
ponente Justice Roberto A. Abad wrote: The Court has already settled the
question of when the jurisdiction of the COMELEC ends and when that of the
HRET begins. The proclamation of a congressional candidate following the
election divests the COMELEC of jurisdiction over disputes relating to the
election, returns, and qualifications of the proclaimed Representatives in favor of
the HRET.
Same; Same; Same; View that upon proclamation, jurisdiction over any election
contest against the proclaimed candidate is vested in the House of
Representatives Electoral Tribunal (HRET) by operation of the
Constitution.Upon proclamation, jurisdiction over any election contest against
the proclaimed candidate is vested in the HRET by operation of the Constitution.
Any challenge to the validity of the proclamation falls under the HRETs
jurisdiction as sole judge of all contests relating to the election, returns, and
qualifications of House Members. To hold that the HRET does not have
jurisdiction over a challenge to the validity of a proclamation is to hold that while
jurisdiction vests in the HRET upon proclamation, the HRET loses such
jurisdiction if a challenge is filed assailing the validity of the proclamation. If so, a
party then exercises the power to terminate HRETs jurisdiction that is vested by
the Constitution. This is an absurdity. It may also happen that one losing
candidate may assail the validity of the proclamation before the Supreme Court
while another losing candidate will file an election protest before the HRET within
15 days from the proclamation. In such a situation, there will be a direct clash of
jurisdiction between the Supreme Court and the HRET. The case in the Supreme
Court can remain pending even after the House Members have assumed their
office, making the anomaly even more absurd.
Same; Same; Same; View that the Supreme Courts ruling today is a double flip-
flop: (1) it reverses the well-settled doctrine that upon proclamation of a winning
congressional candidate, the House of Representatives Electoral Tribunal
(HRET) acquires sole jurisdiction over any contest relating to the election,
returns and qualifications of House Members; and (2) it also reverses the well-
settled doctrine that any question on the validity of such proclamation falls under
the sole jurisdiction of the House of Representatives Electoral Tribunal
(HRET).The Courts ruling today is a double flip-flop: (1) it reverses the well-
settled doctrine that upon proclamation of a winning congressional candidate, the
HRET acquires sole jurisdiction over any contest relating to the election, returns
and qualifications of House Members; and (2) it also reverses the well-settled
doctrine that any question on the validity of such proclamation falls under the
sole jurisdiction of the HRET.
Brion, J., Dissenting Opinion:
Remedial Law; Courts; Jurisdiction; Rule on Adherence of Jurisdiction; View that
the rule on adherence of jurisdiction states that once the jurisdiction of a court
attaches, the court cannot be ousted by subsequent happenings or events,
although of a character that would have prevented jurisdiction from attaching in
the first instance; the court retains jurisdiction until it finally disposes of the
case.The rule on adherence of jurisdiction applies to the present case. This
rule states that once the jurisdiction of a court attaches, the court cannot be
ousted by subsequent happenings or events, although of a character that would
have prevented jurisdiction from attaching in the first instance; the court retains
jurisdiction until it finally disposes of the case. If at all possible, the withdrawal
should be for a meritorious and justifiable reason, and subject to the approval of
the Court.
Same; Civil Procedure; Dismissal of Actions; View that Rule 17 of the Rules of
Court on the dismissal of actions at the instance of the plaintiff embodies this
spirit and can be applied by analogy. Under this Rule, dismissal by notice of the
plaintiff can only be before service of the defendants answer or before service of
a motion for summary judgment. On the other hand, dismissal of a complaint by
motion of the plaintiff can only be upon approval by the court and upon such
terms and conditions that the court shall deem to be proper.Reyes unilateral
withdrawal of her petition after the Court had acted on the petition, in my view,
was not done in the exercise of any right of withdrawal that Reyes can demand
from this Court. While no express rule exists under the Rules of Court on the
withdrawal of an original petition before the Supreme Court, this is the only
conclusion that can be made, consistent with the spirit that pervades the Rules of
Court. Rule 17 of the Rules of Court on the dismissal of actions at the instance of
the plaintiff embodies this spirit and can be applied by analogy. Under this Rule,
dismissal by notice of the plaintiff can only be before service of the defendants
answer or before service of a motion for summary judgment. On the other hand,
dismissal of a complaint by motion of the plaintiff can only be upon approval by
the court and upon such terms and conditions that the court shall deem to be
proper.
Election Law; Evidence; Blog Article; Due Process; View that even without the
use of technical rules of evidence, common sense and the minimum sense of
fairness, to my mind, dictate that a blog article published online or unidentified
documents cannot simply be taken to be evidence of the truth of what they say,
nor can photocopies of documents not shown to be genuine can be taken as
proof of the truth on their faces.Even without the use of technical rules of
evidence, common sense and the minimum sense of fairness, to my mind,
dictate that a blog article published online or unidentified documents cannot
simply be taken to be evidence of the truth of what they say, nor can photocopies
of documents not shown to be genuine can be taken as proof of the truth on
their faces. By accepting these materials as statements of the truth, the
COMELEC clearly violated Reyes right to both procedural and substantive due
process.
Same; Disqualification of Candidates; Renunciation of Citizenship; View that as
applied to Reyes, her possession and use of a U.S. passport, by themselves, did
not signify that she is no longer a natural born Filipino citizen or that she had
renounced her Philippine citizenship.An admission of dual citizenship, without
more, is not a sufficient basis for a CoC cancellation, as this Court has already
held in its settled rulings. While Reyes might have admitted in her motion for
reconsideration before the COMELEC that she had been married to an American
citizen, the admission did not mean that she had already lost her Philippine
citizenship in the absence of any showing that, by her act or omission, she is
deemed under the law to have renounced it. Section 4, Article 4 of the
Constitution is very clear on this point Citizens of the Philippines who marry
aliens shall retain their citizenship, unless by their act or omission they are
deemed, under the law, to have renounced it. As applied to Reyes, her
possession and use of a U.S. passport, by themselves, did not signify that she is
no longer a natural born Filipino citizen or that she had renounced her Philippine
citizenship.
Same; Due Process; View that where the denial of the fundamental right to due
process is apparent, a decision rendered in disregard of that right should be
declared void for lack of jurisdiction.I submit that the violation of Reyes right to
due process raises a serious jurisdictional issue that cannot be glossed over or
disregarded at will, and cannot be saved by the claim that she had been
accorded her hearing rights. The latter relates purely to the actual hearing
process and is rendered meaningless where there is failure at the more
substantive deliberation stage. Where the denial of the fundamental right to due
process is apparent, a decision rendered in disregard of that right should be
declared void for lack of jurisdiction. The rule is equally true for quasi-judicial
bodies (such as the COMELEC), for the constitutional guarantee that no man
shall be deprived of life, liberty or property without due process is unqualified by
the type of proceedings (whether judicial or administrative) where the violation
occurs. Consequently, the assailed March 27, 2013 and May 14, 2013
COMELEC resolutions cancelling Reyes CoC should be declared void for having
been rendered in violation of her right to due process.
Same; Commission on Elections (COMELEC); Jurisdiction; Pre-Proclamation
Controversies; View that by law, it is the COMELEC that has the original and
exclusive jurisdiction over pre-proclamation controversies, including the
annulment of proclamations for positions other than the President, the Vice
President, and the Members of the two Houses of Congress which all have their
specific constitutional rules on the resolution of their elections, returns and
qualifications.I submit that the Court cannot rule on the issue of the validity or
invalidity of Reyes proclamation as this is NOT an issue raised in the present
petition before this Court, nor an issue in the COMELEC proceedings that is now
under review. Proclamation is a separate COMELEC action that came after and
separately from the CoC cancellation ruling. As a cautionary note, any ruling by
the Court on the validity or invalidity of Reyes proclamation is beyond the Courts
jurisdiction at the present time since the Court does not have original jurisdiction
over annulment of proclamations and no petition is before this Court seeking to
impugn or sustain Reyes proclamation. By law, it is the COMELEC that has the
original and exclusive jurisdiction over pre-proclamation controversies, including
the annulment of proclamations for positions other than the President, the Vice
President, and the Members of the two Houses of Congress which all have their
specific constitutional rules on the resolution of their elections, returns and
qualifications.
Same; Same; Same; Same; House of Representatives Electoral Tribunals
(HRET); View that prevailing jurisprudence dictates that upon proclamation of the
winning candidate and despite the allegation of the invalidity of the proclamation,
the House of Representatives Electoral Tribunal (HRET) acquires jurisdiction to
hear the election contest involving the election, returns and qualifications of a
member of the House of Representatives.With the fact of Reyes proclamation
established or undisputed, the HRET alone to the exclusion of any other
tribunal has jurisdiction over Reyes qualifications, including the matter of the
validity or invalidity of her proclamation. Prevailing jurisprudence dictates that
upon proclamation of the winning candidate and despite the allegation of the
invalidity of the proclamation, the HRET acquires jurisdiction to hear the election
contest involving the election, returns and qualifications of a member of the
House of Representatives.
Same; Due Process; View that elementary fairness demands that if bad faith
would be imputed, the ponencia should have viewed the Marinduque election
dispute in its entirety, starting from the fact that Reyes handily won over her
opponent and that the only claim to negate this victory is the cancellation of her
Certificate of Candidacy through extremely questionable proceedings before the
COMELEC.Elementary fairness demands that if bad faith would be imputed,
the ponencia should have viewed the Marinduque election dispute in its entirety,
starting from the fact that Reyes handily won over her opponent and that the only
claim to negate this victory is the cancellation of her CoC through extremely
questionable proceedings before the COMELEC. Notably, in these proceedings,
no less than COMELEC Chairman Brillantes spoke out to comment on the grave
abuse of discretion that transpired. If only the ponencia had been mindful of this
reality and the further reality that the democratic choice of a whole province
should be respected, then perhaps it would not have carelessly imputed bad faith
on Reyes.
Same; House of Representatives Electoral Tribunal (HRET); Proclamation of
Candidates; View that the proclamation of the winning candidate is the operative
fact that triggers the jurisdiction of the House of Representatives Electoral
Tribunal (HRET) over election contests relating to the winning candidates
election, returns, and qualifications.I reiterate my previous Dissenting Opinion
position that the proclamation of the winning candidate is the operative fact that
triggers the jurisdiction of the HRET over election contests relating to the winning
candidates election, returns, and qualifications. In other words, the proclamation
of a winning candidate divests the COMELEC of its jurisdiction over matters
pending before it at the time of the proclamation; the party questioning the
election, returns and the qualifications of the winning candidate should now
present his or her case in a proper proceeding (i.e., an election protest or a quo
warranto petition) before the HRET that, by constitutional mandate, has the sole
jurisdiction to hear and decide cases involving the election, returns and
qualifications of members of the House of Representatives.
Same; 2011 House of Representatives Electoral Tribunal (HRET) Rules; View
that Rule 19 of the 2011 HRET Rules provides that the period for the filing of the
appropriate petition, as prescribed in Rule 16 and Rule 17, is jurisdictional and
cannot be extended.In this regard, I take exception to Justice Abads view that
the period for the filing of an election protest or a petition for quo warranto is
merely a deadline. The HRET Rules clearly state that filing periods are
jurisdictional. Rule 19 of the 2011 HRET Rules provides that the period for the
filing of the appropriate petition, as prescribed in Rule 16 and Rule 17, is
jurisdictional and cannot be extended. Significantly, the filing of an election
protest or petition for quo warranto beyond the periods provided in Rule 16 and
Rule 17 of the HRET Rules is a ground for summary dismissal of the petition.
Abad, J., Concurring Opinion:
Election Law; Omnibus Election Code; View that when Congress enacted the
Omnibus Election Code, among its concerns were persons who, although not
qualified, seek public office and mar the orderly conduct of the elections.When
Congress enacted the Omnibus Election Code, among its concerns were
persons who, although not qualified, seek public office and mar the orderly
conduct of the elections. To address this problem and for the public good,
Congress empowered the Commission on Elections (COMELEC) to hear and
decide petitions for the cancellation of their certificates of candidacies on the
ground of false material representations that such certificates contain. Section 78
of the Code reads: Sec. 78. Petition to deny due course to or cancel a certificate
of candidacy.A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by the person exclusively on the ground that
any material representation contained therein as required under Section 74
hereof is false. The petition may be filed at any time not later than twenty-five
days from the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days before the
election.
Same; House of Representatives Electoral Tribunal (HRET); View that for the
House of Representatives Electoral Tribunal (HRET) to have jurisdiction, the
case must involve a member of the House. The fact alone that one won the
elections and has been proclaimed does not, to be sure, make him a member
of the House. To become a member, the candidate to the position must win the
election, take an oath, and assume office when his term begins.The HRETs
jurisdiction covers only contests relating, among other things, to the
qualifications of their respective Members. This power is inherent in all
organizations as a means of preserving their integrity. For the HRET to have
jurisdiction, the case must involve a member of the House. The fact alone that
one won the elections and has been proclaimed does not, to be sure, make him
a member of the House. To become a member, the candidate to the position
must win the election, take an oath, and assume office when his term begins.
The term of a member of the House begins on the 30th of June next following
his election. Section 7, Article VI of the Constitution, provides: Sec. 7. The
Members of the House of Representatives shall be elected for a term of three
years which shall begin, unless otherwise provided by law, at noon on the
thirtieth day of June next following their election. Clearly, a proclaimed winner will
be a member of the House only at noon of June 30 following his election and
not earlier when he was merely proclaimed as a winning candidate. The reason
is simple. There is no vacancy in that office before noon of June 30. It is implicit
that the term of the member whom he would succeed would continue until noon
of that day when the term of the new member begins. Consequently, the
proclaimed winner in the elections remains an outsider before June 30. Only on
June 30 will his term begin. And only then will the COMELEC be divested of its
jurisdiction over any unresolved petition for the cancellation of his certificate of
candidacy.
Same; Same; Jurisdiction; View that the supposed clash of jurisdiction between
the House of Representatives Electoral Tribunal (HRET) and the Supreme Court
is illusory and cannot happen; The Supreme Court is the final arbiter of the
jurisdictional boundaries of all constitutional bodies. The House of
Representatives Electoral Tribunal (HRET) has never claimed this role.Justice
Carpio also claims that it could happen that a losing candidate would assail the
validity of the proclamation before the Supreme Court while another losing
candidate could file an election protest before the HRET within 15 days of the
proclamation. When this happens, he says, the jurisdiction of the Supreme Court
and the HRET would be in direct clash. But such supposed clash of jurisdiction
between the HRET and the Court is illusory and cannot happen. Any clash of
jurisdiction would essentially be between the COMELEC, asserting its power to
hear and decide petitions for cancellation of certificates of candidacies of those
who seek to be elected to the House, and the HRET, asserting its power to
decide all contests relating to the qualifications of its members. The Supreme
Court is the final arbiter of the jurisdictional boundaries of all constitutional
bodies. The HRET has never claimed this role.
Same; House of Representatives Electoral Tribunal (HRET); View that in Codilla,
Sr. v. Hon. De Venecia, 393 SCRA 639 (2002), the House of Representatives
Electoral Tribunal (HRET) cannot assume jurisdiction over a cancellation case
involving members of the House that had already been decided by the
COMELEC and is under review by the Supreme Court.The HRET cannot oust
the Supreme Court of its jurisdiction under the Constitution. As the Court held in
Codilla, Sr. v. Hon. De Venecia, 393 SCRA 639 (2002), the HRET cannot assume
jurisdiction over a cancellation case involving members of the House that had
already been decided by the COMELEC and is under review by the Supreme
Court. It can be said that it is for the above reasons that the Court heard and
decided a number of petitions filed by losing party-list organizations that sought
membership in the House. The Court did not inhibit itself from deciding their
cases even if the winners had already been proclaimed since it was merely
exercising its sole power to review the decisions of the COMELEC in their cases.
The Court took cognizance of and decided their petitions in Coalition of
Associations of Senior Citizens in the Philippines, Inc. (Senior Citizens Party-List)
vs. Commission on Elections, 701 SCRA 786 (2013).
Leonen, J., Dissenting Opinion:
Election Law; House of Representatives Electoral Tribunals; Jurisdiction;
Proclamation of Candidates; View that the Supreme Court should maintain its
consistent doctrine that proclamation is the operative act that removes
jurisdiction from the Supreme Court or the Commission on Elections and vests it
on the House of Representatives Electoral Tribunal (HRET).In case of doubt,
there are fundamental reasons for this Court to be cautious in exercising its
jurisdiction to determine who the members are of the House of Representatives.
We should maintain our consistent doctrine that proclamation is the operative act
that removes jurisdiction from this Court or the Commission on Elections and
vests it on the House of Representatives Electoral Tribunal (HRET).
Same; Electoral Tribunals; Proclamation of Candidates; View that the earliest
moment when there can be members of the House of Representatives or the
Senate is upon their proclamation as winners of an election.The earliest
moment when there can be members of the House of Representatives or the
Senate is upon their proclamation as winners of an election. Necessarily, this
proclamation happens even before they can actually assume their office as the
elections happen in May, and their terms start at noon on the thirtieth day of
June next following their election. Contests of elected representatives or
senators can happen as soon as they are proclaimed. We should remain faithful
to the intention of the Constitution. It is at the time of their proclamation that we
should declare ourselves as without jurisdiction.
Same; Same; Same; View that the Supreme Court has been asked to resolve the
issue when jurisdiction over election contests vests on electoral tribunals.Time
and again, this Court has been asked to resolve the issue when jurisdiction over
election contests vests on electoral tribunals. In all these cases, this Court has
consistently held that it is the proclamation of a candidate in the congressional
elections that vests jurisdiction on the electoral tribunals of any election contest,
even though the candidate has not yet assumed his or her office or the protest
was filed before June 30. Once the winning candidate vying for a position in
Congress is proclaimed, election contests must be lodged with the electoral
tribunals and not with the Commission on Elections. To repeat, certification by
the proper x x x board of canvassers is sufficient to entitle a member-elect to a
seat in [Congress] and to render him eligible to any office in the said body.
Same; House of Representatives Electoral Tribunal (HRET); Jurisdiction; View
that once a winning candidate has been proclaimed, taken his oath, and
assumed office as a member of the House of Representatives, [the] COMELECs
jurisdiction over election contests relating to his election, returns, and
qualifications ends, and the House of Representatives Electoral Tribunal
(HRET)s own jurisdiction begins.It is my opinion that this Court did not, in any
of the cases cited in the main ponencia, change the time-honored rule that
where a candidate has already been proclaimed winner in the congressional
elections, the remedy of the petitioner is to file an electoral protest [or a petition
for quo warranto] with the [House of Representatives Electoral Tribunal]. The
main ponencia cites several cases to support its ratio decidendi that three
requisites must concur before a winning candidate is considered a member of
the House of Representatives to vest jurisdiction on the electoral tribunal. These
cases appear to have originated from Guerrero v. Commission on Elections, 336
SCRA 458 (2000). In Guerrero, this Court held that x x x once a winning
candidate has been proclaimed, taken his oath, and assumed office as a member
of the House of Representatives, [the] COMELECs jurisdiction over election
contests relating to his election, returns, and qualifications ends, and the HRETs
own jurisdiction begins. The case cited Aquino v. Commission on Elections, 248
SCRA 400 (1995) and Romualdez-Marcos v. Commission on Elections, 248
SCRA 300 (1995) to support the statement.
Same; Electoral Tribunals; Proclamation of Candidates; View that there is only
one rule that the Supreme Court has consistently applied: It is the proclamation
of the winning candidate vying for a seat in Congress that divests the
Commission on Elections of jurisdiction over any electoral protest.To reiterate,
there is only one rule that this Court has consistently applied: It is the
proclamation of the winning candidate vying for a seat in Congress that divests
the Commission on Elections of jurisdiction over any electoral protest. This rule is
consistent with the Constitution, the 2011 Rules of the House of Representatives
Electoral Tribunal, the Omnibus Election Code, and jurisprudence.
Same; Same; Same; View that an electoral protest that also assails the validity of
the proclamation will not cause the Commission on Elections to regain
jurisdiction over the protest.An electoral protest that also assails the validity of
the proclamation will not cause the Commission on Elections to regain
jurisdiction over the protest. Issues regarding the validity or invalidity of the
proclamation may be threshed out before the electoral tribunals. As held in
Caruncho III v. Commission on Elections, 315 SCRA 693 (1999), the electoral
tribunal has jurisdiction over a proclamation controversy involving a member of
the House of Representatives.
Same; Same; View that matters relating to factual findings on election, returns,
and qualifications must first be vetted in the appropriate electoral tribunal before
these are raised in the Supreme Court.The second fundamental reason for us
to exercise caution in determining the composition of the House of
Representatives is that this is required for a better administration of justice.
Matters relating to factual findings on election, returns, and qualifications must
first be vetted in the appropriate electoral tribunal before these are raised in the
Supreme Court.
Remedial Law; Civil Procedure; Appeals; View that when a litigant exhausts all
the remedies which the rules allow, in order to seek an impartial adjudication of
his case, the dignity of the judge is not thereby assailed or affected in the least;
otherwise, all remedies allowed litigants, such as appeals from judgments,
petitions for reconsideration thereof or for the disqualification of judges, or
motions questioning the jurisdiction of courts, would be deemed derogatory to the
respect due a judge.Good faith must be presumed in the conduct of the
petitioner unless evidence to the contrary is submitted to this Court. We have
already ruled that: When a litigant exhausts all the remedies which the rules
allow, in order to seek an impartial adjudication of his case, the dignity of the
judge is not thereby assailed or affected in the least; otherwise, all remedies
allowed litigants, such as appeals from judgments, petitions for reconsideration
thereof or for the disqualification of judges, or motions questioning the jurisdiction
of courts, would be deemed derogatory to the respect due a judge. These
remedies may be availed of by any litigant freely, without being considered guilty
of an act of disrespect to the court or the judge.
RESOLUTION
PEREZ, J.:
This is a Motion for Reconsideration of the En Bane Resolution of 25 June 2013
which stated that: IN VIEW OF THE FOREGOING, the instant petition is
DISMISSED, finding no grave abuse of discretion on the part of the Commission
on Elections. The 14 May 2013 Resolution of the COMELEC En Banc affirming
the 27 March 2013 Resolution of the COMELEC First Division is upheld."
In her Motion for Reconsideration, petitioner summarizes her submission, thus:
"81. Stated differently, the Petitioner x x x is not asking the Honorable Court to
make a determination as regards her qualifications, she is merely asking the
Honorable Court to affirm the jurisdiction of the HRET to solely and exclusively
pass upon such qualifications and to set aside the COMELEC Resolutions for
having denied Petitioner her right to due process and for unconstitutionally
adding a qualification not otherwise required by the constitution." 1 (as originally
underscored)
The first part of the summary refers to the issue raised in the petition, which is:
"31. Whether or not Respondent Comelec is without jurisdiction over Petitioner
who is duly proclaimed winner and who has already taken her oath of office for
the position of Member of the House of Representatives for the lone
congressional district of Marinduque."2
Tied up and neatened the propositions on the COMELEC-or-HRET jurisdiction go
thus: petitioner is a duly proclaimed winner and having taken her oath of office as
member of the House of Representatives, all questions regarding her
qualifications are outside the jurisdiction of the COMELEC and are within the
HRET exclusive jurisdiction.
The averred proclamation is the critical pointer to the correctness of petitioner's
submission. The crucial question is whether or not petitioner could be proclaimed
on 18 May 2013. Differently stated, was there basis for the proclamation of
petitioner on 18 May 2013?
Dates and events indicate that there was no basis for the proclamation of
petitioner on 18 May 2013. Without the proclamation, the petitioner's oath of
office is likewise baseless, and without a precedent oath of office, there can be
no valid and effective assumption of office.
We have clearly stated in our Resolution of 5 June 2013 that:
"More importantly, we cannot disregard a fact basic in this controversy that
before the proclamation of petitioner on 18 May 2013, the COMELEC En Banc
had already finally disposed of the issue of petitioner's lack of Filipino citizenship
and residency via its Resolution dated 14 May 2013. After 14 May 2013, there
was, before the COMELEC, no longer any pending case on petitioner's
qualifications to run for the position of Member of the House of Representatives.
x x x As the point has obviously been missed by the petitioner who continues to
argue on the basis of her due proclamation, the instant motion gives us the
opportunity to highlight the undeniable fact we here repeat that the proclamation
which petitioner secured on 18 May 2013 was WITHOUT ANY BASIS.
1. Four (4) days BEFORE the 18 May 2013 proclamation, or on 14 May
2013, the COMELEC En Banc has already denied for lack o merit the
petitioner's motion to reconsider the decision o the COMELEC First
Division that CANCELLED petitioner's certificate of candidacy.
2. On 18 May 2013, there was already a standing and unquestioned
cancellation of petitioner's certificate o candidacy which cancellation is a
definite bar to her proclamation. On 18 May 2003, that bar has not been
removed, there was not even any attempt to remove it.
3. The COMELEC Rules indicate the manner by which the impediment to
proclamation may be removed. Rule 18, Section 13 (b) provides:
"(b) In Special Actions and Special Cases a decision or resolution of the
Commission En Bane shall become final and executory after five (5)
days from its promulgation unless restrained by the Supreme Court."
Within that five (5 days, petitioner had the opportunity to go to the
Supreme Court for a restraining order that will remove the immediate
effect of the En Banc cancellation of her certificate of candidacy. Within
the five (5) days the Supreme Court may remove the barrier to, and thus
allow, the proclamation of petitioner. That did not happen. Petitioner did
not move to have it happen.
It is error to argue that the five days should pass before the petitioner is
barred from being proclaimed. Petitioner lost in the COMELEC as of
respondent. Her certificate of candidacy has been ordered cancelled.
She could not be proclaimed because there was a final finding against
her by the COMELEC.3 She needed a restraining order from the
Supreme Court to avoid the final finding. After the five days when the
decision adverse to her became executory, the need for Supreme Court
intervention became even more imperative. She would have to base her
recourse on the position that the COMELEC committed grave abuse of
discretion in cancelling her certificate of candidacy and that a restraining
order, which would allow her proclamation, will have to be based on
irreparable injury and demonstrated possibility of grave abuse of
discretion on the part of the COMELEC. In this case, before and after the
18 May 2013 proclamation, there was not even an attempt at the legal
remedy, clearly available to her, to permit her proclamation. What
petitioner did was to "take the law into her hands" and secure a
proclamation in complete disregard of the COMELEC En Bane decision
that was final on 14 May 2013 and final and executory five days
thereafter.
4. There is a reason why no mention about notice was made in Section
13(b) of Rule 18 in the provision that the COMELEC En Bane or decision
"SHALL become FINAL AND EXECUTORY after five days from its
promulgation unless restrained by the Supreme Court." On its own the
 COMELEC En Bane decision, unrestrained, moves from promulgation
into becoming final and executory. This is so because in Section 5 of
Rule 18 it is stated:
Section 5. Promulgation. -The promulgation of a decision or resolutions of the
Commission or a division shall be made on a date previously fixed, of which
notice shall be served in advance upon the parties or their attorneys personally
or by registered mail or by telegram.
5. Apart from the presumed notice of the COMELEC En Bane decision
on the very date of its promulgation on 14 May 2013, petitioner admitted
in her petition before us that she in fact received a copy of the decision
on 16 May 20 13.4 On that date, she had absolutely no reason why she
would disregard the available legal way to remove the restraint on her
proclamation, and, more than that, to in fact secure a proclamation two
days thereafter. The utter disregard of a final COMELEC En Bane
decision and of the Rule stating that her proclamation at that point MUST
be on permission by the Supreme Court is even indicative of bad faith on
the part of the petitioner.
6. The indicant is magnified by the fact that petitioner would use her
tainted proclamation as the very reason to support her argument that she
could no longer be reached by the jurisdiction of the COMELEC; and that
it is the HRET that has exclusive jurisdiction over the issue of her
qualifications for office.
7. The suggestions of bad faith aside, petitioner is in error in the
conclusion at which she directs, as well as in her objective quite obvious
from such conclusion. It is with her procured proclamation that petitioner
nullifies the COMELEC's decision, by Division and then En Banc and
pre-empts any Supreme Court action on the COMELEC decision. In
other words, petitioner repudiates by her proclamation all administrative
and judicial actions thereon, past and present. And by her proclamation,
she claims as acquired the congressional seat that she sought to be a
candidate for. As already shown, the reasons that lead to the
impermissibility of the objective are clear. She cannot sit as Member of
the House of Representatives by virtue of a baseless proclamation
knowingly taken, with knowledge of the existing legal impediment.
8. Petitioner, therefore, is in error when she posits that at present it is the
HRET which has exclusive jurisdiction over her qualifications as a
Member of the House of Representatives. That the HRET is the sole
judge of all contests relating to the election, returns and qualifications of
the Members of the House of Representatives is a written constitutional
provision. It is, however unavailable to petitioner because she is NOT a
Member of the House at present. The COMELEC never ordered her
proclamation as the rightful winner in the election for such
membership.5 Indeed, the action for cancellation of petitioner's certificate
of candidacy, the decision in which is the indispensable determinant of
the right of petitioner to proclamation, was correctly lodged in the
COMELEC, was completely and fully litigated in the COMELEC and was
finally decided by the COMELEC. On and after 14 May 2013, there was
nothing left for the COMELEC to do to decide the case. The decision
sealed the proceedings in the COMELEC regarding petitioner's
ineligibility as a candidate for Representative of Marinduque. The
decision erected the bar to petitioner's proclamation. The bar remained
when no restraining order was obtained by petitioner from the Supreme
Court within five days from 14 May 2013.
9. When petitioner finally went to the Supreme Court on 10 June 2013
questioning the COMELEC First Division ruling and the 14 May 2013
COMELEC En Bane decision, her baseless proclamation on 18 May
2013 did not by that fact of promulgation alone become valid and legal. A
decision favorable to her by the Supreme Court regarding the decision of
the COMELEC En Bane on her certificate of candidacy was
indispensably needed, not to legalize her proclamation on 18 May 2013
but to authorize a proclamation with the Supreme Court decision as
basis.
10. The recourse taken on 25 June 2013 in the form of an original and
special civil action for a writ of Certiorari through Rule 64 of the Rules of
Court is circumscribed by set rules and principles.
a) The special action before the COMELEC which was a Petition
to Cancel Certificate of Candidacy was a SUMMARY
PROCEEDING or one heard summarily. The nature of the
proceedings is best indicated by the COMELEC Rule on Special
Actions, Rule 23, Section 4 of which states that the Commission
may designate any of its officials who are members of the
Philippine Bar to hear the case and to receive evidence.
COMELEC Rule 17 further provides in Section 3 that when the
proceedings are authorized to be summary, in lieu of oral
 testimonies, the parties may, after due notice, be required to
submit their position paper together with affidavits, counter-
affidavits and other documentary evidence; x x x and that this
provision shall likewise apply to cases where the hearing and
reception of evidence are delegated by the Commission or the
Division to any of its officials x x x.
b) The special and civil action of Certiorari is defined in the Rules
of Court thus:
When any tribunal, board or officer exercising judicial or quasi-judicial functions
has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal, or
any plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered annulling or modifying
the proceedings of such tribunal, board or officer, and granting such incidental
reliefs as law and justice may require.
The accepted definition of grave abuse of discretion is: a capricious and
whimsical exercise of judgment so patent and gross as to amount to an evasion
of a positive duty or a virtual refusal to perform a duty enjoined by law, as where
the power is exercised in an arbitrary and despotic manner because of passion
or hostility.6
It is the category of the special action below providing the procedural leeway in
the exercise of the COMELEC summary jurisdiction over the case, in conjunction
with the limits of the Supreme Court's authority over the FINAL COMELEC ruling
that is brought before it, that defines the way petitioner's submission before the
Court should be adjudicated. Thus further explained, the disposition of 25 June
2013 is here repeated for affirmation:
Petitioner alleges that the COMELEC gravely abused its discretion when it took
cognizance of "newly-discovered evidence" without the same having been
testified on and offered and admitted in evidence. She assails the admission of
the blog article of Eli Obligacion as hearsay and the photocopy of the
Certification from the Bureau of Immigration. She likewise contends that there
was a violation of her right to due process of law because she was not given the
opportunity to question and present controverting evidence.
Her contentions are incorrect.
It must be emphasized that the COMELEC is not bound to strictly adhere to the
technical rules of procedure in the presentation of evidence. Under Section 2 of
Rule I the COMELEC Rules of Procedure shall be liberally construed in order x x
x to achieve just, expeditious and inexpensive determination and disposition of
every action and proceeding brought before the Commission. In view of the fact
that the proceedings in a petition to deny due course or to cancel certificate of
candidacy are summary in nature, then the newly discovered evidence was
properly admitted by respondent COMELEC.
Furthermore, there was no denial of due process in the case at bar as petitioner
was given every opportunity to argue her case before the COMELEC. From 10
October 2012 when Tan's petition was filed up to 27 March 2013 when the First
Division rendered its resolution, petitioner had a period of five (5) months to
adduce evidence. Unfortunately, she did not avail herself of the opportunity given
her.
Also, in administrative proceedings, procedural due process only requires that
the party be given the opportunity or right to be heard. As held in the case of
Sahali v. COMELEC:
The petitioners should be reminded that due process does not necessarily mean
or require a hearing, but simply an opportunity or right to be heard. One may be
heard, not solely by verbal presentation but also, and perhaps many times more
creditably and predictable than oral argument, through pleadings. In
administrative proceedings moreover, technical rules of procedure and evidence
are not strictly applied; administrative process cannot be fully equated with due
process in its strict judicial sense. Indeed, deprivation of due process cannot be
successfully invoked where a party was given the chance to be he rd on his
motion for reconsideration. (Emphasis supplied)
As to the ruling that petitioner s ineligible to run for office on the ground of
citizenship, the COMELEC First Division, discoursed as follows:
"x x x for respondent to reacquire her Filipino citizenship and become eligible for
public office the law requires that she must have accomplished the following acts:
(1) take the oath of allegiance to the Republic of the Philippines before the
Consul-General of the Philippine Consulate in the USA; and (2) make a personal
and sworn renunciation of her American citizenship before any public officer
authorized to administer an oath.
In the case at bar, there s no showing that respondent complied with the
aforesaid requirements. Early on in the proceeding, respondent hammered on
petitioner's lack of proof regarding her American citizenship, contending that it is
petitioner's burden to present a case. She, however, specifically denied that she
has become either a permanent resident or naturalized citizen of the USA.
Due to petitioner's submission of newly-discovered evidence thru a Manifestation
dated February 7, 2013, however, establishing the fact that respondent is a
holder of an American passport which she continues to use until June 30 2012
petitioner was able to substantiate his allegations. The burden now shifts to
respondent to present substantial evidence to prove otherwise. This, the
respondent utterly failed to do, leading to the conclusion inevitable that
respondent falsely misrepresented in her COC that she is a natural-born Filipino
citizen. Unless and until she can establish that she had availed of the privileges
of RA 9225 by becoming a dual Filipino-American citizen, and thereafter, made a
valid sworn renunciation of her American citizenship, she remains to be an
American citizen and is, therefore, ineligible to run for and hold any elective
public office in the Philippines." (Emphasis in the original.)
Let us look into the events that led to this petition: In moving for the cancellation
of petitioner's COC, respondent submitted records of the Bureau of Immigration
showing that petitioner is a holder of a US passport, and that her status is that of
a balikbayan. At this point, the burden of proof shifted to petitioner, imposing
upon her the duty to prove that she is a natural-born Filipino citizen and has not
lost the same, or that she has re-acquired such status in accordance with the
provisions of R.A. No. 9225. Aside from the bare allegation that she is a natural-
born citizen, however, petitioner submitted no proof to support such contention.
Neither did she submit any proof as to the inapplicability of R.A. No. 9225 to her.
Notably, in her Motion for Reconsideration before the COMELEC En Bane,
petitioner admitted that she is a holder of a US passport, but she averred that
she is only a dual Filipino-American citizen, thus the requirements of R.A. No.
9225 do not apply to her. Still, attached to the said motion is an Affidavit of
Renunciation of Foreign Citizenship dated 24 September 2012. Petitioner
explains that she attached said Affidavit if only to show her desire and zeal to
serve the people and to comply with rules, even as a superfluity. We cannot,
however, subscribe to petitioner's explanation. If petitioner executed said Affidavit
if only to comply with the rules, then it is an admission that R.A. No. 9225 applies
to her. Petitioner cannot claim that she executed it to address the observations
by the COMELEC as the assailed Resolutions were promulgated only in 2013,
while the Affidavit was executed in September 2012.1wphi1
Moreover, in the present petition, petitioner added a footnote to her oath of office
as Provincial Administrator, to this effect: This does not mean that Petitioner did
not, prior to her taking her oath of office as Provincial Administrator, take her oath
of allegiance for purposes of re-acquisition of natural-born Filipino status, which
she reserves to present in the proper proceeding. The reference to the taking of
oath of office is in order to make reference to what is already part of the records
and evidence in the present case and to avoid injecting into the records evidence
on matters of fact that was not previously passed upon by Respondent
COMELEC. This statement raises a lot of questions -Did petitioner execute an
oath of allegiance for re-acquisition of natural-born Filipino status? If she did, why
did she not present it at the earliest opportunity before the COMELEC? And is
this an admission that she has indeed lost her natural-born Filipino status?
To cover-up her apparent lack of an oath of allegiance as required by R.A. No.
9225, petitioner contends that, since she took her oath of allegiance in
connection with her appointment as Provincial Administrator of Marinduque, she
is deemed to have reacquired her status as a natural-born Filipino citizen.
This contention is misplaced. For one, this issue is being presented for the first
time before this Court, as it was never raised before the COMELEC. For another,
said oath of allegiance cannot be considered compliance with Sec. 3 of R.A. No.
9225 as certain requirements have to be met as prescribed by Memorandum
Circular No. AFF-04-01, otherwise known as the Rules Governing Philippine
Citizenship under R.A. No. 9225 and Memorandum Circular No. AFF-05-002
(Revised Rules) and Administrative Order No. 91, Series of 2004 issued by the
Bureau of Immigration. Thus, petitioner s oath of office as Provincial
Administrator cannot be considered as the oath of allegiance in compliance with
R.A. No. 9225.
These circumstances, taken together, show that a doubt was clearly cast on
petitioner s citizenship. Petitioner, however, failed to clear such doubt. 7
11. It may need pointing out that there is no conflict between the
COMELEC and the HRET insofar as the petitioner s being a
Representative of Marinduque is concerned. The COMELEC covers the
matter of petitioner s certificate of candidacy, and its due course or its
cancellation, which are the pivotal conclusions that determines who can
be legally proclaimed. The matter can go to the Supreme Court but not
as a continuation of the proceedings in the COMELEC, which has in fact
ended, but on an original action before the Court grounded on more than
mere error of judgment but on error of jurisdiction for grave abuse of
 discretion. At and after the COMELEC En Bane decision, there is no
longer any certificate cancellation matter than can go to the HRET. In that
sense, the HRET s constitutional authority opens, over the qualification
of its MEMBER, who becomes so only upon a duly and legally based
proclamation, the first and unavoidable step towards such membership.
The HRET jurisdiction over the qualification of the Member of the House
of Representatives is original and exclusive, and as such, proceeds de
novo unhampered by the proceedings in the COMELEC which, as just
stated has been terminated. The HRET proceedings is a regular, not
summary, proceeding. It will determine who should be the Member of the
House. It must be made clear though, at the risk of repetitiveness, that
no hiatus occurs in the representation of Marinduque in the House
because there is such a representative who shall sit as the HRET
proceedings are had till termination. Such representative is the duly
proclaimed winner resulting from the terminated case of cancellation of
certificate of candidacy of petitioner. The petitioner is not, cannot, be that
representative. And this, all in all, is the crux of the dispute between the
parties: who shall sit in the House in representation of Marinduque, while
there is yet no HRET decision on the qualifications of the Member.
12. As finale, and as explained in the discussion just done, no
unwarranted haste can be attributed, as the dissent does so, to the
resolution of this petition promulgated on 25 June 2013. It was not done
to prevent the exercise by the HRET of its constitutional duty. Quite the
contrary, the speedy resolution of the petition was done to pave the way
for the unimpeded performance by the HRET of its constitutional role.
The petitioner can very well invoke the authority of the HRET, but not as
a sitting member of the House of Representatives.8
The inhibition of this ponente was moved for. The reason for the denial of the
motion was contained in a letter to the members of the Court on the
understanding that the matter was internal to the Court. The ponente now seeks
the Courts approval to have the explanation published as it is now appended to
this Resolution.
The motion to withdraw petition filed AFTER the Court has acted thereon, is
noted. It may well be in order to remind petitioner that jurisdiction, once acquired,
is not lost upon the instance of the parties, but continues until the case is
terminated.9 When petitioner filed her Petition for Certiorari jurisdiction vested in
the Court and, in fact, the Court exercised such jurisdiction when it acted on the
petition. Such jurisdiction cannot be lost by the unilateral withdrawal of the
petition by petitioner.
More importantly, the Resolution dated 25 June 2013, being a valid court
issuance, undoubtedly has legal consequences. Petitioner cannot, by the mere
expediency of withdrawing the petition, negative and nullify the Court's
Resolution and its legal effects. At this point, we counsel petitioner against trifling
with court processes. Having sought the jurisdiction of the Supreme Court,
petitioner cannot withdraw her petition to erase the ruling adverse to her
interests. Obviously, she cannot, as she designed below, subject to her
predilections the supremacy of the law.
WHEREFORE, The Motion for Reconsideration is DENIED. The dismissal of the
petition is affirmed. Entry of Judgment is ordered.
SO ORDERED.
G.R. No. 157013 July 10, 2003
ATTY. ROMULO B. MACALINTAL, petitioner,
vs.
COMMISSION ON ELECTIONS, HON. ALBERTO ROMULO, in his official
capacity as Executive Secretary, and HON. EMILIA T. BONCODIN, Secretary
of the Department of Budget and Management, respondents.
Election Law; Constitutional Law; Parties in Interest; Taxpayers have the right to
restrain officials from wasting public funds through the enforcement of an
unconstitutional statute.R.A. No. 9189, entitled, An Act Providing for A System
of Overseas Absentee Voting by Qualified Citizens of the Philippines Abroad,
Appropriating Funds Therefor, and for Other Purposes, appropriates funds under
Section 29 thereof which provides that a supplemental budget on the General
Appropriations Act of the year of its enactment into law shall provide for the
necessary amount to carry out its provisions. Taxpayers, such as herein
petitioner, have the right to restrain officials from wasting public funds through the
enforcement of an unconstitutional statute. The Court has held that they may
assail the validity of a law appropriating public funds because expenditure of
public funds by an officer of the State for the purpose of executing an
unconstitutional act constitutes a misapplication of such funds.
Same; Same; Statutes; Laws that do not conform to the Constitution shall be
stricken down for being unconstitutional.The Constitution is the fundamental
and paramount law of the nation to which all other laws must conform and in
accordance with which all private rights must be determined and all public
authority administered. Laws that do not conform to the Constitution shall be
stricken down for being unconstitutional.
Same; Same; Same; Presumption of constitutionality of a law must be overcome
convincingly.Generally, however, all laws are presumed to be constitutional. In
Peralta vs. COMELEC, the Court said: . . . An act of the legislature, approved by
the executive, is presumed to be within constitutional limitations. The
responsibility of upholding the Constitution rests not on the courts alone but on
the legislature as well. The question of the validity of every statute is first
determined by the legislative department of the government itself. Thus,
presumption of constitutionality of a law must be overcome convincingly: . . . To
declare a law unconstitutional, the repugnancy of that law to the Constitution
must be clear and unequivocal, for even if a law is aimed at the attainment of
some public good, no infringement of constitutional rights is allowed. To strike
down a law there must be a clear showing that what the fundamental law
condemns or prohibits, the statute allows it to be done.
Same; Same; Same; Statutory Construction; A constitutional provision should
function to the full extent of its substance and its terms, not by itself alone, but in
conjunction with all other provisions of that great document.It is a basic rule in
constitutional construction that the Constitution should be construed as a whole.
In Chiongbian vs. De Leon, the Court held that a constitutional provision should
function to the full extent of its substance and its terms, not by itself alone, but in
conjunction with all other provisions of that great document. Constitutional
provisions are mandatory in character unless, either by express statement or by
necessary implication, a different intention is manifest. The intent of the
Constitution may be drawn primarily from the language of the document itself.
Should it be ambiguous, the Court may consider the intent of its framers through
their debates in the constitutional convention.
Same; Same; Same; Same; Absentee Voting; Members to the Constitutional
Commission intended to enfranchise as much as possible all Filipino citizens
abroad who have not abandoned their domicile of origin.It is clear from these
discussions of the members of the Constitutional Commission intended to
enfranchise as much as possible all Filipino citizens abroad who have not
abandoned their domicile of origin. The Commission even intended to extend to
young Filipinos who reach voting age abroad whose parents domicile of origin is
in the Philippines, and consider them qualified as voters for the first time.
Same; Same; Same; Same; Same; The execution of the affidavit itself is not the
enabling or enfranchising act; The affidavit is not only proof of the intention of the
immigrant or permanent resident to go back and resume residency in the
Philippines, but more significantly, it serves as an explicit expression that he had
not in fact abandoned his domicile of origin.Contrary to the claim of petitioner,
the execution of the affidavit itself is not the enabling or enfranchising act. The
affidavit required in Section 5(d) is not only proof of the intention of the immigrant
or permanent resident to go back and resume residency in the Philippines, but
more significantly, it serves as an explicit expression that he had not in fact
abandoned his domicile of origin. Thus, it is not correct to say that the execution
of the affidavit under Section 5(d) violates the Constitution that proscribes
provisional registration or a promise by a voter to perform a condition to qualified
to vote in a political exercise.
Same; Same; Same; Same; Same; Section 5(d) does not only require an affidavit
or a promise to resume actual physical permanent residence in the Philippines
not later than three years from approval of his/her registration, the Filipinos
abroad must also declare that they have not applied for citizenship in another
country.It must be emphasized that Section 5(d) does not only require an
affidavit or a promise to resume actual physical permanent residence in the
Philippines not later than three years from approval of his/her registration, the
Filipinos abroad must also declare that they have not applied for citizenship in
another country. Thus, they must return to the Philippines; otherwise, their failure
to return shall be cause for the removal of their names from the National
Registry of Absentee Voters and his/her permanent disqualification to vote in
absentia.
Same; Same; Same; Same; Same; Section 5(d) itself provides for a deterrence
which is that the Filipino who fails to return as promised stands to lose his right of
suffrage.Congress itself was conscious of said probability and in fact, it has
addressed the expected problem. Section 5(d) itself provides for a deterrence
which is that the Filipino who fails to return as promised stands to lose his right of
suffrage. Under Section 9, should a registered overseas absentee voter fail to
vote for two consecutive national elections, his name may be ordered removed
from the National Registry of Overseas Absentee Voters.
Same; Same; Same; Same; Same; Court does not find Section 5(d) of R.A. No.
9189 as constitutionally defective.In fine, considering the underlying intent of
the Constitution, the Court does not find Section 5(d) of R.A. No. 9189 as
constitutionally defective.
Same; The canvassing of the votes and the proclamation of the winning
candidates for president and vice-president for the entire nation must remain in
the hands of Congress.Congress could not have allowed the COMELEC to
usurp a power that constitutionally belongs to it or, as aptly stated by petitioner, to
encroach on the power of Congress to canvass the votes for president and vice-
president and the power to proclaim the winners for the said positions. The
provisions of the Constitution as the fundamental law of the land should be read
as part of The Overseas Absentee Voting Act of 2003 and hence, the canvassing
of the votes and the proclamation of the winning candidates for president and
vice-president for the entire nation must remain in the hands of Congress.
Same; By vesting itself with the powers to approve, review, amend, and revise
the IRR for The Overseas Absentee Voting Act of 2003, Congress went beyond
the scope of its constitutional authority.By vesting itself with the powers to
approve, review, amend, and revise the IRR for The Overseas Absentee Voting
Act of 2003, Congress went beyond the scope of its constitutional authority.
Congress trampled upon the constitutional mandate of independence of the
COMELEC. Under such a situation, the Court is left with no option but to
withdraw from its usual reticence in declaring a provision of law unconstitutional.
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari and prohibition filed by Romulo B.
Macalintal, a member of the Philippine Bar, seeking a declaration that certain
provisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of
2003)1 suffer from constitutional infirmity. Claiming that he has actual and
material legal interest in the subject matter of this case in seeing to it that public
funds are properly and lawfully used and appropriated, petitioner filed the instant
petition as a taxpayer and as a lawyer.
The Court upholds the right of petitioner to file the present petition.
R.A. No. 9189, entitled, "An Act Providing for A System of Overseas Absentee
Voting by Qualified Citizens of the Philippines Abroad, Appropriating Funds
Therefor, and for Other Purposes," appropriates funds under Section 29 thereof
which provides that a supplemental budget on the General Appropriations Act of
the year of its enactment into law shall provide for the necessary amount to carry
out its provisions. Taxpayers, such as herein petitioner, have the right to restrain
officials from wasting public funds through the enforcement of an unconstitutional
statute.2 The Court has held that they may assail the validity of a law
appropriating public funds3 because expenditure of public funds by an officer of
the State for the purpose of executing an unconstitutional act constitutes a
misapplication of such funds.4
The challenged provision of law involves a public right that affects a great
number of citizens. The Court has adopted the policy of taking jurisdiction over
cases whenever the petitioner has seriously and convincingly presented an issue
of transcendental significance to the Filipino people. This has been explicitly
pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc.
vs. Tan,5 where the Court held:
Objections to taxpayers suit for lack of sufficient personality standing, or
interest are, however, in the main procedural matters. Considering the
importance to the public of the cases at bar, and in keeping with the
Courts duty, under the 1987 Constitution, to determine whether or not
the other branches of government have kept themselves within the limits
of the Constitution and the laws and that they have not abused the
discretion given to them, the Court has brushed aside technicalities of
procedure and has taken cognizance of these petitions. 6
Indeed, in this case, the Court may set aside procedural rules as the
constitutional right of suffrage of a considerable number of Filipinos is involved.
The question of propriety of the instant petition which may appear to be visited by
the vice of prematurity as there are no ongoing proceedings in any tribunal,
board or before a government official exercising judicial, quasi-judicial or
ministerial functions as required by Rule 65 of the Rules of Court, dims in light of
the importance of the constitutional issues raised by the petitioner. In Taada vs.
Angara,7 the Court held:
In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right
but in fact the duty of the judiciary to settle the dispute. "The question
thus posed is judicial rather than political. The duty (to adjudicate)
remains to assure that the supremacy of the Constitution is upheld."
Once a "controversy as to the application or interpretation of
constitutional provision is raised before this Court (as in the instant case),
 it becomes a legal issue which the Court is bound by constitutional
mandate to decide."
In another case of paramount impact to the Filipino people, it has been
expressed that it is illogical to await the adverse consequences of the law in
order to consider the controversy actual and ripe for judicial resolution. 8 In yet
another case, the Court said that:
. . . despite the inhibitions pressing upon the Court when confronted with
constitutional issues, it will not hesitate to declare a law or act invalid
when it is convinced that this must be done. In arriving at this conclusion,
its only criterion will be the Constitution and God as its conscience gives
it in the light to probe its meaning and discover its purpose. Personal
motives and political considerations are irrelevancies that cannot
influence its decisions. Blandishment is as ineffectual as intimidation, for
all the awesome power of the Congress and Executive, the Court will not
hesitate "to make the hammer fall heavily," where the acts of these
departments, or of any official, betray the peoples will as expressed in
the Constitution . . .9
The need to consider the constitutional issues raised before the Court is further
buttressed by the fact that it is now more than fifteen years since the ratification
of the 1987 Constitution requiring Congress to provide a system for absentee
voting by qualified Filipinos abroad. Thus, strong reasons of public policy demand
that the Court resolves the instant petition10 and determine whether Congress
has acted within the limits of the Constitution or if it had gravely abused the
discretion entrusted to it.11
The petitioner raises three principal questions:
A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of
voters who are immigrants or permanent residents in other countries by
their mere act of executing an affidavit expressing their intention to return
to the Philippines, violate the residency requirement in Section 1 of
Article V of the Constitution?
B. Does Section 18.5 of the same law empowering the COMELEC to
proclaim the winning candidates for national offices and party list
representatives including the President and the Vice-President violate
the constitutional mandate under Section 4, Article VII of the Constitution
that the winning candidates for President and the Vice-President shall be
proclaimed as winners by Congress?
C. May Congress, through the Joint Congressional Oversight Committee
created in Section 25 of Rep. Act No. 9189, exercise the power to review,
revise, amend, and approve the Implementing Rules and Regulations
that the Commission on Elections shall promulgate without violating the
independence of the COMELEC under Section 1, Article IX-A of the
Constitution?
The Court will resolve the questions in seriatim.
A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the
1987 Constitution of the Republic of the Philippines?
Section 5(d) provides:
Sec. 5. Disqualifications. The following shall be disqualified from voting
under this Act:
.........
d) An immigrant or a permanent resident who is recognized as such in
the host country, unless he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission declaring that he/she shall
resume actual physical permanent residence in the Philippines not later
than three (3) years from approval of his/her registration under this Act.
Such affidavit shall also state that he/she has not applied for citizenship
in another country. Failure to return shall be cause for the removal of the
name of the immigrant or permanent resident from the National Registry
of Absentee Voters and his/her permanent disqualification to vote in
absentia.
Petitioner posits that Section 5(d) is unconstitutional because it violates Section
1, Article V of the 1987 Constitution which requires that the voter must be a
resident in the Philippines for at least one year and in the place where he
proposes to vote for at least six months immediately preceding an election.
Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals12 to support
his claim. In that case, the Court held that a "green card" holder immigrant to the
United States is deemed to have abandoned his domicile and residence in the
Philippines.
Petitioner further argues that Section 1, Article V of the Constitution does not
allow provisional registration or a promise by a voter to perform a condition to be
qualified to vote in a political exercise;13 that the legislature should not be allowed
to circumvent the requirement of the Constitution on the right of suffrage by
providing a condition thereon which in effect amends or alters the aforesaid
residence requirement to qualify a Filipino abroad to vote. 14 He claims that the
right of suffrage should not be granted to anyone who, on the date of the election,
does not possess the qualifications provided for by Section 1, Article V of the
Constitution.
Respondent COMELEC refrained from commenting on this issue. 15
In compliance with the Resolution of the Court, the Solicitor General filed his
comment for all public respondents. He contraposes that the constitutional
challenge to Section 5(d) must fail because of the absence of clear and
unmistakable showing that said provision of law is repugnant to the Constitution.
He stresses: All laws are presumed to be constitutional; by the doctrine of
separation of powers, a department of government owes a becoming respect for
the acts of the other two departments; all laws are presumed to have adhered to
constitutional limitations; the legislature intended to enact a valid, sensible, and
just law.
In addition, the Solicitor General points out that Section 1, Article V of the
Constitution is a verbatim reproduction of those provided for in the 1935 and the
1973 Constitutions. Thus, he cites Co vs. Electoral Tribunal of the House of
Representatives16 wherein the Court held that the term "residence" has been
understood to be synonymous with "domicile" under both Constitutions. He
further argues that a person can have only one "domicile" but he can have two
residences, one permanent (the domicile) and the other temporary; 17 and that the
definition and meaning given to the term residence likewise applies to absentee
voters. Invoking Romualdez-Marcos vs. COMELEC18 which reiterates the Courts
ruling in Faypon vs. Quirino,19 the Solicitor General maintains that Filipinos who
are immigrants or permanent residents abroad may have in fact never
abandoned their Philippine domicile.20
Taking issue with the petitioners contention that "green card" holders are
considered to have abandoned their Philippine domicile, the Solicitor General
suggests that the Court may have to discard its ruling in Caasi vs. Court of
Appeals21 in so far as it relates to immigrants and permanent residents in foreign
countries who have executed and submitted their affidavits conformably with
Section 5(d) of R.A. No. 9189. He maintains that through the execution of the
requisite affidavits, the Congress of the Philippines with the concurrence of the
President of the Republic had in fact given these immigrants and permanent
residents the opportunity, pursuant to Section 2, Article V of the Constitution, to
manifest that they had in fact never abandoned their Philippine domicile; that
indubitably, they would have formally and categorically expressed the requisite
intentions, i.e., "animus manendi" and "animus revertendi;" that Filipino
immigrants and permanent residents abroad possess the unquestionable right to
exercise the right of suffrage under Section 1, Article V of the Constitution upon
approval of their registration, conformably with R.A. No. 9189. 22
The seed of the present controversy is the interpretation that is given to the
phrase, "qualified citizens of the Philippines abroad" as it appears in R.A. No.
9189, to wit:
SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a
system of honest and orderly overseas absentee voting that upholds the secrecy
and sanctity of the ballot. Towards this end, the State ensures equal opportunity
to all qualified citizens of the Philippines abroad in the exercise of this
fundamental right.
SEC. 3. Definition of Terms. For purposes of this Act:
a) "Absentee Voting" refers to the process by which qualified
citizens of the Philippines abroad, exercise their right to vote;
. . . (Emphasis supplied)
f) "Overseas Absentee Voter" refers to a citizen of the
Philippines who is qualified to register and vote under this
Act, not otherwise disqualified by law, who is abroad on the day
of elections. (Emphasis supplied)
SEC. 4. Coverage. All citizens of the Philippines abroad, who are
not otherwise disqualified by law, at least eighteen (18) years of age
 on the day of elections, may vote for president, vice-president, senators
and party-list representatives. (Emphasis supplied)
in relation to Sections 1 and 2, Article V of the Constitution which read:
SEC. 1. Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age, and
who shall have resided in the Philippines for at least one year and in the
place wherein they propose to vote for at least six months immediately
preceding the election. No literacy, property, or other substantive
requirement shall be imposed on the exercise of suffrage.
SEC. 2. The Congress shall provide a system for securing the secrecy
and sanctity of the ballot as well as a system for absentee voting by
qualified Filipinos abroad.
. . . . . . . . . (Emphasis supplied)
Section 1, Article V of the Constitution specifically provides that suffrage may be
exercised by (1) all citizens of the Philippines, (2) not otherwise disqualified by
law, (3) at least eighteen years of age, (4) who are residents in the Philippines for
at least one year and in the place where they propose to vote for at least six
months immediately preceding the election. Under Section 5(d) of R.A. No. 9189,
one of those disqualified from voting is an immigrant or permanent resident who
is recognized as such in the host country unless he/she executes an affidavit
declaring that he/she shall resume actual physical permanent residence in the
Philippines not later than three years from approval of his/her registration under
said Act.
Petitioner questions the rightness of the mere act of execution of an affidavit to
qualify the Filipinos abroad who are immigrants or permanent residents, to vote.
He focuses solely on Section 1, Article V of the Constitution in ascribing
constitutional infirmity to Section 5(d) of R.A. No. 9189, totally ignoring the
provisions of Section 2 empowering Congress to provide a system for absentee
voting by qualified Filipinos abroad.
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the
impression that it contravenes Section 1, Article V of the Constitution. Filipino
immigrants and permanent residents overseas are perceived as having left and
abandoned the Philippines to live permanently in their host countries and
therefore, a provision in the law enfranchising those who do not possess the
residency requirement of the Constitution by the mere act of executing an
affidavit expressing their intent to return to the Philippines within a given period,
risks a declaration of unconstitutionality. However, the risk is more apparent than
real.
The Constitution is the fundamental and paramount law of the nation to which all
other laws must conform and in accordance with which all private rights must be
determined and all public authority administered.23 Laws that do not conform to
the Constitution shall be stricken down for being unconstitutional.
Generally, however, all laws are presumed to be constitutional. In Peralta vs.
COMELEC, the Court said:
. . . An act of the legislature, approved by the executive, is presumed to
be within constitutional limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the legislature as well.
The question of the validity of every statute is first determined by the
legislative department of the government itself.24
Thus, presumption of constitutionality of a law must be overcome convincingly:
. . . To declare a law unconstitutional, the repugnancy of that law to the
Constitution must be clear and unequivocal, for even if a law is aimed at
the attainment of some public good, no infringement of constitutional
rights is allowed. To strike down a law there must be a clear showing that
what the fundamental law condemns or prohibits, the statute allows it to
be done.25
As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it
behooves the Court to take a holistic view of the pertinent provisions of both the
Constitution and R.A. No. 9189. It is a basic rule in constitutional construction
that the Constitution should be construed as a whole. In Chiongbian vs. De
Leon,26 the Court held that a constitutional provision should function to the full
extent of its substance and its terms, not by itself alone, but in conjunction with all
other provisions of that great document. Constitutional provisions are mandatory
in character unless, either by express statement or by necessary implication, a
different intention is manifest.27 The intent of the Constitution may be drawn
primarily from the language of the document itself. Should it be ambiguous, the
Court may consider the intent of its framers through their debates in the
constitutional convention.28
R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of
Section 2, Article V of the Constitution that Congress shall provide a system for
voting by qualified Filipinos abroad. It must be stressed that Section 2 does not
provide for the parameters of the exercise of legislative authority in enacting said
law. Hence, in the absence of restrictions, Congress is presumed to have duly
exercised its function as defined in Article VI (The Legislative Department) of the
Constitution.
To put matters in their right perspective, it is necessary to dwell first on the
significance of absentee voting. The concept of absentee voting is relatively new.
It is viewed thus:
The method of absentee voting has been said to be completely
separable and distinct from the regular system of voting, and to be a new
and different manner of voting from that previously known, and an
exception to the customary and usual manner of voting. The right of
absentee and disabled voters to cast their ballots at an election is purely
statutory; absentee voting was unknown to, and not recognized at, the
common law.
Absentee voting is an outgrowth of modern social and economic
conditions devised to accommodate those engaged in military or civil life
whose duties make it impracticable for them to attend their polling places
on the day of election, and the privilege of absentee voting may flow
from constitutional provisions or be conferred by statutes, existing in
some jurisdictions, which provide in varying terms for the casting and
reception of ballots by soldiers and sailors or other qualified voters
absent on election day from the district or precinct of their residence.
Such statutes are regarded as conferring a privilege and not a right, or
an absolute right. When the legislature chooses to grant the right by
statute, it must operate with equality among all the class to which it
is granted; but statutes of this nature may be limited in their
application to particular types of elections. The statutes should be
construed in the light of any constitutional provisions affecting
registration and elections, and with due regard to their texts prior to
amendment and to predecessor statutes and the decisions
thereunder; they should also be construed in the light of the
circumstances under which they were enacted; and so as to carry out
the objects thereof, if this can be done without doing violence to their
provisions and mandates. Further, in passing on statutes regulating
absentee voting, the court should look to the whole and every part
of the election laws, the intent of the entire plan, and reasons and
spirit of their adoption, and try to give effect to every portion
thereof.29 (Emphasis supplied)
Ordinarily, an absentee is not a resident and vice versa; a person cannot be at
the same time, both a resident and an absentee.30 However, under our election
laws and the countless pronouncements of the Court pertaining to elections, an
absentee remains attached to his residence in the Philippines as residence is
considered synonymous with domicile.
In Romualdez-Marcos,31 the Court enunciated:
Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights
and the fulfillment of civil obligations, the domicile of natural persons is
their place of habitual residence." In Ong vs. Republic, this court took the
concept of domicile to mean an individuals "permanent home," "a place
to which, whenever absent for business or for pleasure, one intends to
return, and depends on facts and circumstances in the sense that they
disclose intent." Based on the foregoing, domicile includes the twin
elements of "the fact of residing or physical presence in a fixed place"
and animus manendi, or the intention of returning there permanently.
Residence, in its ordinary conception, implies the factual relationship of
an individual to a certain place. It is the physical presence of a person in
a given area, community or country. The essential distinction between
residence and domicile in law is that residence involves the intent to
leave when the purpose for which the resident has taken up his abode
ends. One may seek a place for purposes such as pleasure, business, or
health. If a persons intent be to remain, it becomes his domicile; if his
intent is to leave as soon as his purpose is established it is residence. It
is thus, quite perfectly normal for an individual to have different
residences in various places. However, a person can only have a single
domicile, unless, for various reasons, he successfully abandons his
domicile in favor of another domicile of choice. In Uytengsu vs. Republic,
we laid this distinction quite clearly:
"There is a difference between domicile and residence.
Residence is used to indicate a place of abode, whether
permanent or temporary; domicile denotes a fixed permanent
residence to which, when absent, one has the intention of
 returning. A man may have a residence in one place and a
domicile in another. Residence is not domicile, but domicile is
residence coupled with the intention to remain for an unlimited
time. A man can have but one domicile for the same purpose at
any time, but he may have numerous places of residence. His
place of residence is generally his place of domicile, but it is not
by any means necessarily so since no length of residence
without intention of remaining will constitute domicile."
For political purposes the concepts of residence and domicile are
dictated by the peculiar criteria of political laws. As these concepts have
evolved in our election law, what has clearly and unequivocally
emerged is the fact that residence for election purposes is used
synonymously with domicile.32(Emphasis supplied)
Aware of the domiciliary legal tie that links an overseas Filipino to his residence
in this country, the framers of the Constitution considered the circumstances that
impelled them to require Congress to establish a system for overseas absentee
voting, thus:
MR. OPLE. With respect to Section 1, it is not clear whether the right of
suffrage, which here has a residential restriction, is not denied to citizens
temporarily residing or working abroad. Based on the statistics of several
government agencies, there ought to be about two million such Filipinos
at this time. Commissioner Bernas had earlier pointed out that these
provisions are really lifted from the two previous Constitutions of 1935
and 1973, with the exception of the last paragraph. They could not
therefore have foreseen at that time the phenomenon now described as
the Filipino labor force explosion overseas.
According to government data, there are now about 600,000 contract
workers and employees, and although the major portions of these
expatriate communities of workers are to be found in the Middle East,
they are scattered in 177 countries in the world.
In a previous hearing of the Committee on Constitutional Commissions
and Agencies, the Chairman of the Commission on Elections, Ramon
Felipe, said that there was no insuperable obstacle to making effective
the right of suffrage for Filipinos overseas. Those who have adhered to
their Filipino citizenship notwithstanding strong temptations are exposed
to embrace a more convenient foreign citizenship. And those who on
their own or under pressure of economic necessity here, find that they
have to detach themselves from their families to work in other countries
with definite tenures of employment. Many of them are on contract
employment for one, two, or three years. They have no intention of
changing their residence on a permanent basis, but are technically
disqualified from exercising the right of suffrage in their countries of
destination by the residential requirement in Section 1 which says:
Suffrage shall be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are eighteen years of age or
over, and who shall have resided in the Philippines for at least
one year and in the place wherein they propose to vote for at
least six months preceding the election.
I, therefore, ask the Committee whether at the proper time they might
entertain an amendment that will make this exercise of the right to vote
abroad for Filipino citizens an effective, rather than merely a nominal
right under this proposed Constitution.
FR. BERNAS. Certainly, the Committee will consider that. But more than
just saying that, I would like to make a comment on the meaning of
"residence" in the Constitution because I think it is a concept that has
been discussed in various decisions of the Supreme Court, particularly in
the case of Faypon vs. Quirino, a 1954 case which dealt precisely with
the meaning of "residence" in the Election Law. Allow me to quote:
A citizen may leave the place of his birth to look for greener
pastures, as the saying goes, to improve his lot and that, of
course, includes study in other places, practice of his avocation,
reengaging in business. When an election is to be held, the
citizen who left his birthplace to improve his lot may decide to
return to his native town, to cast his ballot, but for professional or
business reasons, or for any other reason, he may not absent
himself from the place of his professional or business activities.
So, they are here registered as voters as he has the
qualifications to be one, and is not willing to give up or lose the
opportunity to choose the officials who are to run the government
especially in national elections. Despite such registration,
the animus revertendi to his home, to his domicile or residence
of origin has not forsaken him.
This may be the explanation why the registration of a voter in a place other than
his residence of origin has not been deemed sufficient to consider abandonment
or loss of such residence of origin.
In other words, "residence" in this provision refers to two residence
qualifications: "residence" in the Philippines and "residence" in the place
where he will vote. As far as residence in the Philippines is concerned,
the word "residence" means domicile, but as far as residence in the
place where he will actually cast his ballot is concerned, the meaning
seems to be different. He could have a domicile somewhere else and yet
he is a resident of a place for six months and he is allowed to vote there.
So that there may be serious constitutional obstacles to absentee
voting, unless the vote of the person who is absent is a vote which
will be considered as cast in the place of his domicile.
MR. OPLE. Thank you for citing the jurisprudence.
It gives me scant comfort thinking of about two million Filipinos who
should enjoy the right of suffrage, at least a substantial segment of these
overseas Filipino communities. The Committee, of course, is aware that
when this Article of the Constitution explicitly and unequivocally extends
the right of effective suffrage to Filipinos abroad, this will call for a
logistical exercise of global proportions. In effect, this will require
budgetary and administrative commitments on the part of the Philippine
government, mainly through the COMELEC and the Ministry of Foreign
Affairs, and perhaps, a more extensive elaboration of this mechanism
that will be put in place to make effective the right to vote.
Therefore, seeking shelter in some wise jurisprudence of the past
may not be sufficient to meet the demands of the right of suffrage
for Filipinos abroad that I have mentioned. But I want to thank the
Committee for saying that an amendment to this effect may be
entertained at the proper time. . . . . . . . . . 33 (Emphasis supplied)
Thus, the Constitutional Commission recognized the fact that while millions of
Filipinos reside abroad principally for economic reasons and hence they
contribute in no small measure to the economic uplift of this country, their voices
are marginal insofar as the choice of this countrys leaders is concerned.
The Constitutional Commission realized that under the laws then existing and
considering the novelty of the system of absentee voting in this jurisdiction,
vesting overseas Filipinos with the right to vote would spawn constitutional
problems especially because the Constitution itself provides for the residency
requirement of voters:
MR. REGALADO. Before I act on that, may I inquire from Commissioner
Monsod if the term "absentee voting" also includes transient voting;
meaning, those who are, let us say, studying in Manila need not go back
to their places of registration, for instance, in Mindanao, to cast their
votes.
MR. MONSOD. I think our provision is for absentee voting by Filipinos
abroad.
MR. REGALADO. How about those people who cannot go back to the
places where they are registered?
MR. MONSOD. Under the present Election Code, there are provisions
for allowing students and military people who are temporarily in another
place to register and vote. I believe that those situations can be covered
by the Omnibus Election Code. The reason we want absentee voting
to be in the Constitution as a mandate to the legislature is that
there could be inconsistency on the residence rule if it is just a
question of legislation by Congress. So, by allowing it and saying
that this is possible, then legislation can take care of the
rest.34 (Emphasis supplied)
Thus, Section 2, Article V of the Constitution came into being to remove any
doubt as to the inapplicability of the residency requirement in Section 1. It is
precisely to avoid any problems that could impede the implementation of its
pursuit to enfranchise the largest number of qualified Filipinos who are not in the
Philippines that the Constitutional Commission explicitly mandated Congress to
provide a system for overseas absentee voting.
The discussion of the Constitutional Commission on the effect of the residency
requirement prescribed by Section 1, Article V of the Constitution on the
proposed system of absentee voting for qualified Filipinos abroad is enlightening:
MR. SUAREZ. May I just be recognized for a clarification. There are
certain qualifications for the exercise of the right of suffrage like having
resided in the Philippines for at least one year and in the place where
they propose to vote for at least six months preceding the elections.
What is the effect of these mandatory requirements on the matter of the
exercise of the right of suffrage by the absentee voters like Filipinos
abroad?
THE PRESIDENT. Would Commissioner Monsod care to answer?
MR. MONSOD. I believe the answer was already given by Commissioner
Bernas, that the domicile requirements as well as the qualifications and
disqualifications would be the same.
THE PRESIDENT. Are we leaving it to the legislature to devise the
system?
FR. BERNAS. I think there is a very legitimate problem raised there.
THE PRESIDENT. Yes.
MR. BENGZON. I believe Commissioner Suarez is clarified.
FR. BERNAS. But I think it should be further clarified with regard to the
residence requirement or the place where they vote in practice; the
understanding is that it is flexible. For instance, one might be a resident
of Naga or domiciled therein, but he satisfies the requirement of
residence in Manila, so he is able to vote in Manila.
MR. TINGSON. Madam President, may I then suggest to the Committee
to change the word "Filipinos" to QUALIFIED FILIPINO VOTERS.
Instead of "VOTING BY FILIPINOS ABROAD," it should be QUALIFIED
FILIPINO VOTERS. If the Committee wants QUALIFIED VOTERS
LIVING ABROAD, would that not satisfy the requirement?
THE PRESIDENT. What does Commissioner Monsod say?
MR. MONSOD. Madam President, I think I would accept the phrase
"QUALIFIED FILIPINOS ABROAD" because "QUALIFIED" would
assume that he has the qualifications and none of the disqualifications to
vote.
MR. TINGSON. That is right. So does the Committee accept?
FR. BERNAS. "QUALIFIED FILIPINOS ABROAD"?
THE PRESIDENT. Does the Committee accept the amendment?
MR. REGALADO. Madam President.
THE PRESIDENT. Commissioner Regalado is recognized.
MR. REGALADO. When Commissioner Bengzon asked me to read my
proposed amendment, I specifically stated that the National Assembly
shall prescribe a system which will enable qualified citizens, temporarily
absent from the Philippines, to vote. According to Commissioner
Monsod, the use of the phrase "absentee voting" already took that into
account as its meaning. That is referring to qualified Filipino citizens
temporarily abroad.
MR. MONSOD. Yes, we accepted that. I would like to say that with
respect to registration we will leave it up to the legislative assembly,
for example, to require where the registration is. If it is, say,
members of the diplomatic corps who may be continuously abroad
for a long time, perhaps, there can be a system of registration in the
embassies. However, we do not like to preempt the legislative assembly.
THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is
only to provide a system.
MR. MONSOD. Yes.
THE PRESIDENT. The Commissioner is not stating here that he wants
new qualifications for these absentee voters.
MR. MONSOD. That is right. They must have the qualifications and none
of the disqualifications.
THE PRESIDENT. It is just to devise a system by which they can vote.
MR. MONSOD. That is right, Madam President.35 (Emphasis supplied)
Clearly therefrom, the intent of the Constitutional Commission is to entrust to
Congress the responsibility of devising a system of absentee voting. The
qualifications of voters as stated in Section 1 shall remain except for the
residency requirement. This is in fact the reason why the Constitutional
Commission opted for the term qualified Filipinos abroad with respect to the
system of absentee voting that Congress should draw up. As stressed by
Commissioner Monsod, by the use of the adjective qualified with respect to
Filipinos abroad, the assumption is that they have the "qualifications and none of
the disqualifications to vote." In fine-tuning the provision on absentee voting, the
Constitutional Commission discussed how the system should work:
MR. SUAREZ. For clarification purposes, we just want to state for the
record that in the case of qualified Filipino citizens residing abroad and
exercising their right of suffrage, they can cast their votes for the
candidates in the place where they were registered to vote in the
Philippines. So as to avoid any complications, for example, if they are
registered in Angeles City, they could not vote for a mayor in Naga City.
In other words, if that qualified voter is registered in Angeles City, then he
can vote only for the local and national candidates in Angeles City. I just
want to make that clear for the record.
MR. REGALADO. Madam President.
THE PRESIDENT. What does Commissioner Regalado say?
MR. REGALADO. I just want to make a note on the statement of
Commissioner Suarez that this envisions Filipinos residing abroad. The
understanding in the amendment is that the Filipino is temporarily
abroad.He may not be actually residing abroad; he may just be there on
a business trip. It just so happens that the day before the elections he
has to fly to the United States, so he could not cast his vote. He is
temporarily abroad, but not residing there. He stays in a hotel for two
days and comes back. This is not limited only to Filipinos temporarily
residing abroad. But as long as he is temporarily abroad on the
date of the elections, then he can fall within the prescription of
Congress in that situation.
MR. SUAREZ. I thank the Commissioner for his further clarification.
Precisely, we need this clarification on record.
MR. MONSOD. Madam President, to clarify what we mean by
"temporarily abroad," it need not be on very short trips. One can be
abroad on a treaty traders visa. Therefore, when we talk about
registration, it is possible that his residence is in Angeles and he would
be able to vote for the candidates in Angeles, but Congress or the
Assembly may provide the procedure for registration, like listing
ones name, in a registry list in the embassy abroad. That is still
possible under the system.
FR. BERNAS. Madam President, just one clarification if Commissioner
Monsod agrees with this.
Suppose we have a situation of a child of a diplomatic officer who
reaches the voting age while living abroad and he has never registered
here. Where will he register? Will he be a registered voter of a certain
locality in the Philippines?
MR. MONSOD. Yes, it is possible that the system will enable that child to
comply with the registration requirements in an embassy in the United
States and his name is then entered in the official registration book in
Angeles City, for instance.
FR. BERNAS. In other words, he is not a registered voter of Los Angeles,
but a registered voter of a locality here.
MR. MONSOD. That is right. He does not have to come home to the
Philippines to comply with the registration procedure here.
FR. BERNAS. So, he does not have to come home.
MR. BENGZON. Madam President, the Floor Leader wishes to inquire if
there are more clarifications needed from the body.
Also, the Floor Leader is happy to announce that there are no more
registered Commissioners to propose amendments. So I move that we
close the period of amendments.36 (Emphasis supplied)
It is clear from these discussions of the members of the Constitutional
Commission that they intended to enfranchise as much as possible all Filipino
citizens abroad who have not abandoned their domicile of origin. The
Commission even intended to extend to young Filipinos who reach voting age
abroad whose parents domicile of origin is in the Philippines, and consider them
qualified as voters for the first time.
It is in pursuance of that intention that the Commission provided for Section 2
immediately after the residency requirement of Section 1. By the doctrine of
necessary implication in statutory construction, which may be applied in
construing constitutional provisions,37 the strategic location of Section 2 indicates
that the Constitutional Commission provided for an exception to the actual
residency requirement of Section 1 with respect to qualified Filipinos abroad. The
same Commission has in effect declared that qualified Filipinos who are not in
the Philippines may be allowed to vote even though they do not satisfy the
residency requirement in Section 1, Article V of the Constitution.
That Section 2 of Article V of the Constitution is an exception to the residency
requirement found in Section 1 of the same Article was in fact the subject of
debate when Senate Bill No. 2104, which became R.A. No. 9189, was
deliberated upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in relation
to the constitutional provisions. I think the sponsor and I would agree that
the Constitution is supreme in any statute that we may enact.
Let me read Section 1, Article V, of the Constitution entitled, "Suffrage." It
says:
Section 1. Suffrage may be exercised by all citizens of the
Philippines not otherwise disqualified by law, who are at least
eighteen years of age, and who shall have resided in the
Philippines for at least one year and in the place wherein they
propose to vote for at least six months immediately preceding
the election.
Now, Mr. President, the Constitution says, "who shall have resided in the
Philippines." They are permanent immigrants. They have changed
residence so they are barred under the Constitution. This is why I asked
whether this committee amendment which in fact does not alter the
original text of the bill will have any effect on this?
Senator Angara. Good question, Mr. President. And this has been asked
in various fora. This is in compliance with the Constitution. One, the
interpretation here of "residence" is synonymous with "domicile."
As the gentleman and I know, Mr. President, "domicile" is the intent to
return to ones home. And the fact that a Filipino may have been
physically absent from the Philippines and may be physically a
resident of the United States, for example, but has a clear intent to
return to the Philippines, will make him qualified as a resident of
the Philippines under this law.
This is consistent, Mr. President, with the constitutional mandate that we
that Congress must provide a franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle literally as
demanding physical presence, then there is no way we can provide
for offshore voting to our offshore kababayan, Mr. President.
Senator Arroyo. Mr. President, when the Constitution says, in Section 2
of Article V, it reads: "The Congress shall provide a system for securing
the secrecy and sanctity of the ballot as well as a system for absentee
voting by qualified Filipinos abroad."
The key to this whole exercise, Mr. President, is "qualified." In other
words, anything that we may do or say in granting our compatriots
abroad must be anchored on the proposition that they are qualified.
Absent the qualification, they cannot vote. And "residents" (sic) is a
qualification.
I will lose votes here from permanent residents so-called "green-card
holders", but the Constitution is the Constitution. We cannot compromise
on this. The Senate cannot be a party to something that would affect or
impair the Constitution.
Look at what the Constitution says "In the place wherein they propose
to vote for at least six months immediately preceding the election."
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros where Senator Cayetano lives.
We are separated only by a creek. But one who votes in Makati cannot
vote in Pateros unless he resides in Pateros for six months. That is how
restrictive our Constitution is. I am not talking even about the Election
Code. I am talking about the Constitution.
 As I have said, if a voter in Makati would want to vote in Pateros, yes, he
may do so. But he must do so, make the transfer six months before the
election, otherwise, he is not qualified to vote.
That is why I am raising this point because I think we have a fundamental
difference here.
Senator Angara. It is a good point to raise, Mr. President. But it is a
point already well-debated even in the constitutional commission of
1986. And the reason Section 2 of Article V was placed immediately
after the six-month/one-year residency requirement is to
demonstrate unmistakably that Section 2 which authorizes
absentee voting is an exception to the six-month/one-year
residency requirement. That is the first principle, Mr. President, that
one must remember.
The second reason, Mr. President, is that under our jurisprudence and I
think this is so well-entrenched that one need not argue about it
"residency" has been interpreted as synonymous with "domicile."
But the third more practical reason, Mr. President, is, if we follow
the interpretation of the gentleman, then it is legally and
constitutionally impossible to give a franchise to vote to overseas
Filipinos who do not physically live in the country, which is quite
ridiculous because that is exactly the whole point of this exercise
to enfranchise them and empower them to vote. 38(Emphasis
supplied)
Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the
absentee voting process, to wit:
SEC. 4. Coverage. All citizens of the Philippines abroad, who are not
otherwise disqualified by law, at least eighteen (18) years of age on the
day of elections, may vote for president, vice-president, senators and
party-list representatives.
which does not require physical residency in the Philippines; and Section 5 of the
assailed law which enumerates those who are disqualified, to wit:
SEC. 5. Disqualifications. The following shall be disqualified from
voting under this Act:
a) Those who have lost their Filipino citizenship in accordance with
Philippine laws;
b) Those who have expressly renounced their Philippine citizenship and
who have pledged allegiance to a foreign country;
c) Those who have committed and are convicted in a final judgment by a
court or tribunal of an offense punishable by imprisonment of not less
than one (1) year, including those who have committed and been found
guilty of Disloyalty as defined under Article 137 of the Revised Penal
Code, such disability not having been removed by plenary pardon or
amnesty: Provided, however, That any person disqualified to vote under
this subsection shall automatically acquire the right to vote upon
expiration of five (5) years after service of sentence; Provided, further,
That the Commission may take cognizance of final judgments issued by
foreign courts or tribunals only on the basis of reciprocity and subject to
the formalities and processes prescribed by the Rules of Court on
execution of judgments;
d) An immigrant or a permanent resident who is recognized as such in
the host country, unless he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission declaring that he/she shall
resume actual physical permanent residence in the Philippines not later
than three (3) years from approval of his/her registration under this Act.
Such affidavit shall also state that he/she has not applied for citizenship
in another country. Failure to return shall be cause for the removal of the
name of the immigrant or permanent resident from the National Registry
of Absentee Voters and his/her permanent disqualification to vote in
absentia.
e) Any citizen of the Philippines abroad previously declared insane or
incompetent by competent authority in the Philippines or abroad, as
verified by the Philippine embassies, consulates or foreign service
establishments concerned, unless such competent authority
subsequently certifies that such person is no longer insane or
incompetent.
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically
disqualifies an immigrant or permanent resident who is "recognized as such in
the host country" because immigration or permanent residence in another
country implies renunciation of ones residence in his country of origin. However,
same Section allows an immigrant and permanent resident abroad to register as
voter for as long as he/she executes an affidavit to show that he/she has not
abandoned his domicile in pursuance of the constitutional intent expressed in
Sections 1 and 2 of Article V that "all citizens of the Philippines not otherwise
disqualified by law" must be entitled to exercise the right of suffrage and, that
Congress must establish a system for absentee voting; for otherwise, if actual,
physical residence in the Philippines is required, there is no sense for the framers
of the Constitution to mandate Congress to establish a system for absentee
voting.
Contrary to the claim of petitioner, the execution of the affidavit itself is not the
enabling or enfranchising act. The affidavit required in Section 5(d) is not only
proof of the intention of the immigrant or permanent resident to go back and
resume residency in the Philippines, but more significantly, it serves as an explicit
expression that he had not in fact abandoned his domicile of origin. Thus, it is not
correct to say that the execution of the affidavit under Section 5(d) violates the
Constitution that proscribes "provisional registration or a promise by a voter to
perform a condition to be qualified to vote in a political exercise."
To repeat, the affidavit is required of immigrants and permanent residents abroad
because by their status in their host countries, they are presumed to have
relinquished their intent to return to this country; thus, without the affidavit, the
presumption of abandonment of Philippine domicile shall remain.
Further perusal of the transcripts of the Senate proceedings discloses another
reason why the Senate required the execution of said affidavit. It wanted the
affiant to exercise the option to return or to express his intention to return to his
domicile of origin and not to preempt that choice by legislation. Thus:
Senator Villar. Yes, we are going back.
It states that: "For Filipino immigrants and those who have acquired
permanent resident status abroad," a requirement for the registration is
the submission of "a Sworn Declaration of Intent to Return duly sworn
before any Philippine embassy or consulate official authorized to
administer oath"
Mr. President, may we know the rationale of this provision? Is the
purpose of this Sworn Declaration to include only those who have the
intention of returning to be qualified to exercise the right of suffrage?
What if the Filipino immigrant has no purpose of returning? Is he
automatically disbarred from exercising this right to suffrage?
Senator Angara. The rationale for this, Mr. President, is that we want
to be expansive and all-inclusive in this law. That as long as he is a
Filipino, no matter whether he is a green-card holder in the U.S. or
not, he will be authorized to vote. But if he is already a green-card
holder, that means he has acquired permanent residency in the
United States, then he must indicate an intention to return. This is
what makes for the definition of "domicile." And to acquire the vote,
we thought that we would require the immigrants and the green-card
holders . . . Mr. President, the three administration senators are leaving,
maybe we may ask for a vote [Laughter].
Senator Villar. For a merienda, Mr. President.
Senator Angara. Mr. President, going back to the business at hand. The
rationale for the requirement that an immigrant or a green-card holder
should file an affidavit that he will go back to the Philippines is that, if he
is already an immigrant or a green-card holder, that means he may not
return to the country any more and that contradicts the definition of
"domicile" under the law.
But what we are trying to do here, Mr. President, is really provide
the choice to the voter. The voter, after consulting his lawyer or after
deliberation within the family, may decide "No, I think we are risking our
permanent status in the United States if we file an affidavit that we want
to go back." But we want to give him the opportunity to make that
decision. We do not want to make that decision for him. 39(Emphasis
supplied)
The jurisprudential declaration in Caasi vs. Court of Appeals that green card
holders are disqualified to run for any elective office finds no application to the
present case because the Caasi case did not, for obvious reasons, consider the
absentee voting rights of Filipinos who are immigrants and permanent residents
in their host countries.
In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they
may still be considered as a "qualified citizen of the Philippines abroad" upon
fulfillment of the requirements of registration under the new law for the purpose of
exercising their right of suffrage.
It must be emphasized that Section 5(d) does not only require an affidavit or a
promise to "resume actual physical permanent residence in the Philippines not
later than three years from approval of his/her registration," the Filipinos abroad
must also declare that they have not applied for citizenship in another country.
Thus, they must return to the Philippines; otherwise, their failure to return "shall
be cause for the removal" of their names "from the National Registry of Absentee
Voters and his/her permanent disqualification to vote in absentia."
Thus, Congress crafted a process of registration by which a Filipino voter
permanently residing abroad who is at least eighteen years old, not otherwise
disqualified by law, who has not relinquished Philippine citizenship and who has
not actually abandoned his/her intentions to return to his/her domicile of origin,
the Philippines, is allowed to register and vote in the Philippine embassy,
consulate or other foreign service establishments of the place which has
jurisdiction over the country where he/she has indicated his/her address for
purposes of the elections, while providing for safeguards to a clean election.
Thus, Section 11 of R.A. No. 9189 provides:
SEC. 11. Procedure for Application to Vote in Absentia.
11.1. Every qualified citizen of the Philippines abroad whose application
for registration has been approved, including those previously registered
under Republic Act No. 8189, shall, in every national election, file with
the officer of the embassy, consulate or other foreign service
establishment authorized by the Commission, a sworn written application
to vote in a form prescribed by the Commission. The authorized officer of
such embassy, consulate or other foreign service establishment shall
transmit to the Commission the said application to vote within five (5)
days from receipt thereof. The application form shall be accomplished in
triplicate and submitted together with the photocopy of his/her overseas
absentee voter certificate of registration.
11.2. Every application to vote in absentia may be done personally at, or
by mail to, the embassy, consulate or foreign service establishment,
which has jurisdiction over the country where he/she has indicated
his/her address for purposes of the elections.
11.3. Consular and diplomatic services rendered in connection with the
overseas absentee voting processes shall be made available at no cost
to the overseas absentee voter.
Contrary to petitioners claim that Section 5(d) circumvents the Constitution,
Congress enacted the law prescribing a system of overseas absentee voting in
compliance with the constitutional mandate. Such mandate expressly requires
that Congress provide a system of absentee voting that necessarily presupposes
that the "qualified citizen of the Philippines abroad" is not physically present in
the country. The provisions of Sections 5(d) and 11 are components of the
system of overseas absentee voting established by R.A. No. 9189. The qualified
Filipino abroad who executed the affidavit is deemed to have retained his
domicile in the Philippines. He is presumed not to have lost his domicile by his
physical absence from this country. His having become an immigrant or
permanent resident of his host country does not necessarily imply an
abandonment of his intention to return to his domicile of origin, the Philippines.
Therefore, under the law, he must be given the opportunity to express that he
has not actually abandoned his domicile in the Philippines by executing the
affidavit required by Sections 5(d) and 8(c) of the law.
Petitioners speculative apprehension that the implementation of Section 5(d)
would affect the credibility of the elections is insignificant as what is important is
to ensure that all those who possess the qualifications to vote on the date of the
election are given the opportunity and permitted to freely do so. The COMELEC
and the Department of Foreign Affairs have enough resources and talents to
ensure the integrity and credibility of any election conducted pursuant to R.A. No.
9189.
As to the eventuality that the Filipino abroad would renege on his undertaking to
return to the Philippines, the penalty of perpetual disenfranchisement provided
for by Section 5(d) would suffice to serve as deterrence to non-compliance with
his/her undertaking under the affidavit.
Petitioner argues that should a sizable number of "immigrants" renege on their
promise to return, the result of the elections would be affected and could even be
a ground to contest the proclamation of the winning candidates and cause further
confusion and doubt on the integrity of the results of the election. Indeed, the
probability that after an immigrant has exercised the right to vote, he shall opt to
remain in his host country beyond the third year from the execution of the
affidavit, is not farfetched. However, it is not for this Court to determine the
wisdom of a legislative exercise. As expressed in Taada vs. Tuvera,40 the Court
is not called upon to rule on the wisdom of the law or to repeal it or modify it if we
find it impractical.
Congress itself was conscious of said probability and in fact, it has addressed the
expected problem. Section 5(d) itself provides for a deterrence which is that the
Filipino who fails to return as promised stands to lose his right of suffrage. Under
Section 9, should a registered overseas absentee voter fail to vote for two
consecutive national elections, his name may be ordered removed from the
National Registry of Overseas Absentee Voters.
Other serious legal questions that may be raised would be: what happens to the
votes cast by the qualified voters abroad who were not able to return within three
years as promised? What is the effect on the votes cast by the non-returnees in
favor of the winning candidates? The votes cast by qualified Filipinos abroad who
failed to return within three years shall not be invalidated because they were
qualified to vote on the date of the elections, but their failure to return shall be
cause for the removal of the names of the immigrants or permanent residents
from the National Registry of Absentee Voters and their permanent
disqualification to vote in absentia.
In fine, considering the underlying intent of the Constitution, the Court does not
find Section 5(d) of R.A. No. 9189 as constitutionally defective.
B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in
contravention of Section 4, Article VII of the Constitution?
Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote
for president, vice-president, senators and party-list representatives.
Section 18.5 of the same Act provides:
SEC. 18. On-Site Counting and Canvassing.
.........
18. 5 The canvass of votes shall not cause the delay of the proclamation
of a winning candidate if the outcome of the election will not be affected
by the results thereof. Notwithstanding the foregoing, the Commission
is empowered to order the proclamation of winning
candidates despite the fact that the scheduled election has not taken
place in a particular country or countries, if the holding of elections
therein has been rendered impossible by events, factors and
circumstances peculiar to such country or countries, in which events,
factors and circumstances are beyond the control or influence of the
Commission. (Emphasis supplied)
Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering
the COMELEC to order the proclamation of winning candidates insofar as it
affects the canvass of votes and proclamation of winning candidates for president
and vice-president, is unconstitutional because it violates the following provisions
of paragraph 4, Section 4 of Article VII of the Constitution:
SEC. 4 . . .
The returns of every election for President and Vice-President, duly
certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the Senate.
Upon receipt of the certificates of canvass, the President of the Senate
shall, not later than thirty days after the day of the election, open all the
certificates in the presence of the Senate and the House of
Representatives in joint public session, and the Congress, upon
determination of the authenticity and due execution thereof in the manner
provided by law, canvass the votes.
The person having the highest number of votes shall be proclaimed
elected, but in case two or more shall have an equal and highest number
of votes, one of them shall forthwith be chosen by the vote of a majority
of all the Members of both Houses of the Congress, voting separately.
The Congress shall promulgate its rules for the canvassing of the
certificates.
...
which gives to Congress the duty to canvass the votes and proclaim the winning
candidates for president and vice-president.
The Solicitor General asserts that this provision must be harmonized with
paragraph 4, Section 4, Article VII of the Constitution and should be taken to
mean that COMELEC can only proclaim the winning Senators and party-list
representatives but not the President and Vice-President. 41
Respondent COMELEC has no comment on the matter.
Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A.
No. 9189 is far too sweeping that it necessarily includes the proclamation of the
winning candidates for the presidency and the vice-presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of
the Constitution only insofar as said Section totally disregarded the authority
given to Congress by the Constitution to proclaim the winning candidates for the
positions of president and vice-president.
In addition, the Court notes that Section 18.4 of the law, to wit:
18.4. . . . Immediately upon the completion of the canvass, the chairman
of the Special Board of Canvassers shall transmit via facsimile, electronic
mail, or any other means of transmission equally safe and reliable the
Certificates of Canvass and the Statements of Votes to the
Commission, . . . [Emphasis supplied]
clashes with paragraph 4, Section 4, Article VII of the Constitution which provides
that the returns of every election for President and Vice-President shall be
certified by the board of canvassers to Congress.
Congress could not have allowed the COMELEC to usurp a power that
constitutionally belongs to it or, as aptly stated by petitioner, to encroach "on the
power of Congress to canvass the votes for president and vice-president and the
power to proclaim the winners for the said positions." The provisions of the
Constitution as the fundamental law of the land should be read as part of The
Overseas Absentee Voting Act of 2003 and hence, the canvassing of the votes
and the proclamation of the winning candidates for president and vice-president
for the entire nation must remain in the hands of Congress.
C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article
IX-A of the Constitution?
Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A
(Common Provisions) of the Constitution, to wit:
Section 1. The Constitutional Commissions, which shall
be independent, are the Civil Service Commission, the Commission on
Elections, and the Commission on Audit. (Emphasis supplied)
He submits that the creation of the Joint Congressional Oversight Committee
with the power to review, revise, amend and approve the Implementing Rules
and Regulations promulgated by the COMELEC, R.A. No. 9189 intrudes into the
independence of the COMELEC which, as a constitutional body, is not under the
control of either the executive or legislative departments of government; that only
the COMELEC itself can promulgate rules and regulations which may be
changed or revised only by the majority of its members; and that should the rules
promulgated by the COMELEC violate any law, it is the Court that has the power
to review the same via the petition of any interested party, including the
legislators.
It is only on this question that respondent COMELEC submitted its Comment. It
agrees with the petitioner that Sections 19 and 25 of R.A. No. 9189 are
unconstitutional. Like the petitioner, respondent COMELEC anchors its claim of
unconstitutionality of said Sections upon Section 1, Article IX-A of the
Constitution providing for the independence of the constitutional commissions
such as the COMELEC. It asserts that its power to formulate rules and
regulations has been upheld in Gallardo vs. Tabamo, Jr.42 where this Court held
that the power of the COMELEC to formulate rules and regulations is implicit in
its power to implement regulations under Section 2(1) of Article IX-C 43 of the
Constitution. COMELEC joins the petitioner in asserting that as an independent
constitutional body, it may not be subject to interference by any government
instrumentality and that only this Court may review COMELEC rules and only in
cases of grave abuse of discretion.
The COMELEC adds, however, that another provision, vis--vis its rule-making
power, to wit:
SEC. 17. Voting by Mail.
17.1. For the May, 2004 elections, the Commission shall authorize voting
by mail in not more than three (3) countries, subject to the approval of
the Congressional Oversight Committee. Voting by mail may be
allowed in countries that satisfy the following conditions:
 a) Where the mailing system is fairly well-developed and secure to
prevent occasion for fraud;
b) Where there exists a technically established identification system that
would preclude multiple or proxy voting; and
c) Where the system of reception and custody of mailed ballots in the
embassies, consulates and other foreign service establishments
concerned are adequate and well-secured.
Thereafter, voting by mail in any country shall be allowed only upon
review and approval of the Joint Congressional Oversight
Committee . . . . . . . . . (Emphasis supplied)
is likewise unconstitutional as it violates Section 1, Article IX-A mandating the
independence of constitutional commissions.
The Solicitor General takes exception to his prefatory statement that the
constitutional challenge must fail and agrees with the petitioner that Sections 19
and 25 are invalid and unconstitutional on the ground that there is nothing in
Article VI of the Constitution on Legislative Department that would as much as
imply that Congress has concurrent power to enforce and administer election
laws with the COMELEC; and by the principles of exclusio unius est exclusio
alterius and expressum facit cessare tacitum, the constitutionally enumerated
powers of Congress circumscribe its authority to the exclusion of all others.
The parties are unanimous in claiming that Sections 19, 25 and portions of
Section 17.1 are unconstitutional. Thus, there is no actual issue forged on this
question raised by petitioner.
However, the Court finds it expedient to expound on the role of Congress through
the Joint Congressional Oversight Committee (JCOC) vis--vis the independence
of the COMELEC, as a constitutional body.
R.A. No. 9189 created the JCOC, as follows:
SEC. 25. Joint Congressional Oversight Committee. A Joint
Congressional Oversight Committee is hereby created, composed of the
Chairman of the Senate Committee on Constitutional Amendments,
Revision of Codes and Laws, and seven (7) other Senators designated
by the Senate President, and the Chairman of the House Committee on
Suffrage and Electoral Reforms, and seven (7) other Members of the
House of Representatives designated by the Speaker of the House of
Representatives: Provided, That, of the seven (7) members to be
designated by each House of Congress, four (4) should come from the
majority and the remaining three (3) from the minority.
The Joint Congressional Oversight Committee shall have the power
to monitor and evaluate the implementation of this Act. It shall
review, revise, amend and approve the Implementing Rules and
Regulations promulgated by the Commission. (Emphasis supplied)
SEC. 19. Authority of the Commission to Promulgate Rules. The
Commission shall issue the necessary rules and regulations to effectively
implement the provisions of this Act within sixty (60) days from the
effectivity of this Act. The Implementing Rules and Regulations shall
be submitted to the Joint Congressional Oversight Committee
created by virtue of this Act for prior approval.
. . . . . . . . . (Emphasis supplied)
Composed of Senators and Members of the House of Representatives, the Joint
Congressional Oversight Committee (JCOC) is a purely legislative body. There is
no question that the authority of Congress to "monitor and evaluate the
implementation" of R.A. No. 9189 is geared towards possible amendments or
revision of the law itself and thus, may be performed in aid of its legislation.
However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives
to the JCOC the following functions: (a) to "review, revise, amend and approve
the Implementing Rules and Regulations" (IRR) promulgated by the COMELEC
[Sections 25 and 19]; and (b) subject to the approval of the JCOC [Section 17.1],
the voting by mail in not more than three countries for the May 2004 elections
and in any country determined by COMELEC.
The ambit of legislative power under Article VI of the Constitution is
circumscribed by other constitutional provisions. One such provision is Section 1
of Article IX-A of the 1987 Constitution ordaining that constitutional commissions
such as the COMELEC shall be "independent."
Interpreting Section 1, Article X of the 1935 Constitution providing that there shall
be an independent COMELEC, the Court has held that "[w]hatever may be the
nature of the functions of the Commission on Elections, the fact is that the
framers of the Constitution wanted it to be independent from the other
departments of the Government."44 In an earlier case, the Court elucidated:
The Commission on Elections is a constitutional body. It is intended to
play a distinct and important part in our scheme of government. In the
discharge of its functions, it should not be hampered with restrictions that
would be fully warranted in the case of a less responsible organization.
The Commission may err, so may this court also. It should be allowed
considerable latitude in devising means and methods that will insure the
accomplishment of the great objective for which it was created free,
orderly and honest elections. We may not agree fully with its choice of
means, but unless these are clearly illegal or constitute gross abuse of
discretion, this court should not interfere. Politics is a practical matter,
and political questions must be dealt with realistically not from the
standpoint of pure theory. The Commission on Elections, because of its
fact-finding facilities, its contacts with political strategists, and its
knowledge derived from actual experience in dealing with political
controversies, is in a peculiarly advantageous position to decide complex
political questions.45 (Emphasis supplied)
The Court has no general powers of supervision over COMELEC which is an
independent body "except those specifically granted by the Constitution," that is,
to review its decisions, orders and rulings.46 In the same vein, it is not correct to
hold that because of its recognized extensive legislative power to enact election
laws, Congress may intrude into the independence of the COMELEC by
exercising supervisory powers over its rule-making authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the
COMELEC to "issue the necessary rules and regulations to effectively implement
the provisions of this Act within sixty days from the effectivity of this Act." This
provision of law follows the usual procedure in drafting rules and regulations to
implement a law the legislature grants an administrative agency the authority to
craft the rules and regulations implementing the law it has enacted, in recognition
of the administrative expertise of that agency in its particular field of
operation.47Once a law is enacted and approved, the legislative function is
deemed accomplished and complete. The legislative function may spring back to
Congress relative to the same law only if that body deems it proper to review,
amend and revise the law, but certainly not to approve, review, revise and amend
the IRR of the COMELEC.
By vesting itself with the powers to approve, review, amend, and revise the IRR
for The Overseas Absentee Voting Act of 2003, Congress went beyond the scope
of its constitutional authority. Congress trampled upon the constitutional mandate
of independence of the COMELEC. Under such a situation, the Court is left with
no option but to withdraw from its usual reticence in declaring a provision of law
unconstitutional.
The second sentence of the first paragraph of Section 19 stating that "[t]he
Implementing Rules and Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue of this Act for prior
approval," and the second sentence of the second paragraph of Section 25
stating that "[i]t shall review, revise, amend and approve the Implementing Rules
and Regulations promulgated by the Commission," whereby Congress, in both
provisions, arrogates unto itself a function not specifically vested by the
Constitution, should be stricken out of the subject statute for constitutional
infirmity. Both provisions brazenly violate the mandate on the independence of
the COMELEC.
Similarly, the phrase, "subject to the approval of the Congressional Oversight
Committee" in the first sentence of Section 17.1 which empowers the
Commission to authorize voting by mail in not more than three countries for the
May, 2004 elections; and the phrase, "only upon review and approval of the Joint
Congressional Oversight Committee" found in the second paragraph of the same
section are unconstitutional as they require review and approval of voting by mail
in any country after the 2004 elections. Congress may not confer upon itself the
authority to approve or disapprove the countries wherein voting by mail shall be
allowed, as determined by the COMELEC pursuant to the conditions provided for
in Section 17.1 of R.A. No. 9189.48 Otherwise, Congress would overstep the
bounds of its constitutional mandate and intrude into the independence of the
COMELEC.
During the deliberations, all the members of the Court agreed to adopt the
separate opinion of Justice Reynato S. Puno as part of the ponencia on the
unconstitutionality of Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as they
relate to the creation of and the powers given to the Joint Congressional
Oversight Committee.
WHEREFORE, the petition is partly GRANTED. The following portions
of R.A. No. 9189 are declared VOID for being UNCONSTITUTIONAL:
 a) The phrase in the first sentence of the first paragraph of Section 17.1,
to wit: "subject to the approval of the Joint Congressional Oversight
Committee;"
b) The portion of the last paragraph of Section 17.1, to wit: "only upon
review and approval of the Joint Congressional Oversight
Committee;"
c) The second sentence of the first paragraph of Section 19, to wit: "The
Implementing Rules and Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue of this Act
for prior approval;" and
d) The second sentence in the second paragraph of Section 25, to wit: "It
shall review, revise, amend and approve the Implementing Rules
and Regulations promulgated by the Commission" of the same law;
for being repugnant to Section 1, Article IX-A of the Constitution mandating the
independence of constitutional commission, such as COMELEC.
The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect
only to the authority given to the COMELEC to proclaim the winning candidates
for the Senators and party-list representatives but not as to the power to canvass
the votes and proclaim the winning candidates for President and Vice-President
which is lodged with Congress under Section 4, Article VII of the Constitution.
The constitutionality of Section 5(d) is UPHELD.
Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law
continues to be in full force and effect.
SO ORDERED.
G.R. No. L-42300 January 31, 1936
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
AMADEO CORRAL, defendant-appellant.
1.ELECTION LAW; SUFFRAGE; DISQUALIFICATION.Under the law a person
is disqualified to vote who, since the 13th day of August, 1898, has been
sentenced by final judgment to suffer not less than eighteen months of
imprisonment, such disability not having been removed by plenary pardon.
(Administrative Code, sec., 482.)
2.ID.; ID.; ID.; VIOLATION OF.Whoever at any election votes knowing that he
is not entitled so to do incurs in criminal responsibility. (Sec. 2642 of the
Administrative Code.)
3.ID.; ID.; STATUTORY NOT NATURAL RIGHT.The modern conception of the
suffrage is that voting is a function of government. It is a right created by law, not
a natural right.
4.ID.; ID.; A PRIVILEGE.Suffrage is a privilege granted by the State to such
person or classes as are most likely to exercise it for the public good. For
reasons of public policy, certain classes of persons are excluded from the
franchise. Among the generally excluded classes are minors, idiots, paupers, and
convicts.
5.ID.; ID.; RIGHT OF STATE.The right of the State to deprive persons of the
right of suffrage by reason of their having been convicted of crime, is beyond
question. The manifest purpose of such restriction is to preserve the purity of
elections. (9 R. C. L., 1042.)
6.ID.; ID.; PRESUMPTION ARISING FROM CONVICTIONThe presumption is
that one rendered infamous by conviction of felony is unfit to exercise the
privilege of suffrage or to hold a public office. (9 R. C. L., 1042.)
7.ID.; ID.; DlSQUALIFICATION IS FOR PROTECTION, NOT PUNISHMENT.
The exclusion from the exercise of suffrage must be adjudged a mere
disqualification imposed for protection and not for punishment, the withholding of
a privilege and not the denial of a personal right. (9 R. C. L., 1042.)
8.ID.; ID.; DISQUALIFICATION; DURATION.From the very nature of the
suffrage disqualificationwhich is imposed "for protection and not for
punishment, the withholding of a privilege and not the denial of a personal
right"the deprivation of suffrage does not lapse at the expiration of the
sentence of the convict. (Administrative Code, sec. 432.)
9.ID.; ID.; ID.; PRESCRIPTION.The disqualification for crime imposed by law,
having once attached and not having been subsequently removed by a plenary
pardon, is not wiped out only because the ex-convict had once been allowed to
vote.
Generoso, Pelayo, Castillo, Braganza, Chavez, Doromal, Diaz and Capili for
appellant.
Office of the Solicitor General Hilado for appellee.
ABAD SANTOS, J.:
Appellant was charged having voted illegally at the general elections held on
June 5, 1934. After due trial, he was convicted on the ground that he had voted
while laboring under a legal disqualification. The judgment of conviction was
based on section 2642, in connection with section 432. of the Revised
Administrative Code.
Said Section 432 reads as follows:
The following persons shall be disqualified from voting:
 (a) Any person who, since the thirteenth day of August, eighteen hundred
and ninety-eight, has been sentenced by final judgment to suffer not less
than eighteen months of imprisonment, such disability not having been
removed by plenary pardon.
(b) Any person who has violated an oath of allegiance taken by him to
the United States.
(c) Insane of feeble-minded persons.
(d) Deaf-mutes who cannot read and write.
(e) Electors registered under subsection (c) of the next proceeding
section who, after failing to make sworn statement to the satisfaction of
the board of inspectors at any of its two meetings for registration and
revision, that they are incapacitated for preparing their ballots due to
permanent physical disability, present themselves at the hour of voting as
incapacitated, irrespective of whether such incapacity be real or feigned.
And section 2642 provides:
Whoever at any election votes or attempts to vote knowing that he is not
entitled so to do, ... shall be punished by imprisonment for not less than
one month nor more than one year and by a fine of not less than one
hundred pesos nor more than one thousand pesos, and in all cases by
deprivation of the right of suffrage and disqualification from public office
for a period of not more than four years.
It is undisputed that appellant was sentenced by final judgment of this court
promulgated on March 3, 1910,1 to suffer eight years and one day of presidio
mayor. No evidence was presented to show that prior to June 5, 1934, he had
been granted a plenary pardon. It is likewise undisputed that at the general
elections held on June 5, 1934, the voted in election precinct No. 18 of the
municipality of Davao, Province of Davao.
The modern conception of the suffrage is that voting is a function of government.
The right to vote is not a natural right but is a right created by law. Suffrage is a
privilege granted by the State to such persons or classes as are most likely to
exercise it for the public good. In the early stages of the evolution of the
representative system of government, the exercise of the right of suffrage was
limited to a small portion of the inhabitants. But with the spread of democratic
ideas, the enjoyment of the franchise in the modern states has come to embrace
the mass of the audit classes of persons are excluded from the franchise. Among
the the generally excluded classes are minors idiots, paupers, and convicts.
The right of the State to deprive persons to the right of suffrage by reason of their
having been convicted of crime, is beyond question. "The manifest purpose of
such restrictions upon this right is to preserve the purity of elections. The
presumption is that one rendered infamous by conviction of felony, or other base
offense indicative of moral turpitude, is unfit to exercise the privilege of suffrage
or to hold office. The exclusion must for this reason be adjudged a mere
disqualification, imposed for protection and not for punishment, the withholding of
a privilege and not the denial of a personal right. (9 R.C.L., 1042.)
Upon the facts established in this case, it seems clear that the appellant was not
entitled to vote on June 5 1934, because of section 432 of the Revised
Administrative Code which disqualified from voting any person who, since the
13th day of August, 1898, had been sentenced by final judgment to offer not less
than eighteen months of imprisonment, such disability not having been removed
by plenary pardon. As above stated, the appellant had been sentenced by final
judgment to suffer eight years and one day of presidio mayor, and had not been
granted a plenary pardon.
Counsel for the appellant contend that inasmuch as the latter voted in 1928 his
offense had already prescribed, and he could no longer be prosecuted for illegal
voting at the general election held on June 5, 1934. This contention is clearly
without merit. The disqualification for crime imposed under section 432 of the
Revised Administrative Code having once attached on the appellant and not
having been subsequently removed by a plenary pardon, continued and
rendered it illegal for the appellant to vote at the general elections of 1934.
Neither is there any merit in the contention advanced by counsel for the appellant
that the disqualification imposed on the latter must be considered as having been
removed at the expiration of his sentence. This claim is based upon an erroneous
theory of the nature of the disqualification. It regards it as a punishment when, as
already indicated, the correct view is that it is imposed, "for protection and not for
punishment,. the withholding of a prvilege and not the denial of a personal right."
Judicial interpretation and long established administrative practice are against
such a view.
The judgment appealed from is affirmed with costs against the appellant. So
ordered.
Villa-Real, Vickers, Imperial, Butte, and Goddard, JJ., concur.
Separate Opinions
AVANCEA, C.J., dissenting:
The appealed judgment affirmed by the majority members of this court sentences
the appellant for having voted in the general election held on June 5, 1934, in the
municipality of Davao, Province of Davao, being disqualified from voting. The
appellant, in my opinion, was not disqualified from voting.
The appellant was sentenced to the penalty of eight years and one day of prision
mayor in the year 1910. This penalty carried with it, as an accessory,
disqualification from the right of suffrage during the term of the sentence. He
began to serve his sentence on April 11, 1910. He was granted a conditional
pardon on July 31, 1913. Inasmuch as the accessory penalty of disqualification
from the right of suffrage was not expressly remitted in this pardon, it is
understood that he complied with and extinguished this part of the sentence on
April 12, 1918. Therefore, under the penalty imposed upon the appellant, he was
not disqualified from voting in 1934.
The majority, however bases its decision on section 432 of the administrative
Code which reads:
The following persons shall be disqualified from voting:
(a) Any person who, since the thirteenth day of August, eighteen hundred
and ninety-eight, has been sentenced by final judgment to suffer not less
than eighteen months of imprisonment, such disability not having been
removed by plenary pardon.
The language of the law is not clear whether the disqualification referred to
therein is only for the term of the sentence or for the entire life time of the convict.
The majority however, interprets this provision in the latter sense to which I do
not agree, it being contrary to the spirit thereof.
If the interpretation of the majority were correct, section 432 of the Administrative
Code would not harmonize with the latter provisions thereof (secs. 2636, 2637,
2639, 2640, 2641, 2642, 2643, 2644, 2645, 2646, 2647, 2649, 2652, 2654, 2656,
2657, 2658 and 2659) on offenses relative to elections and elective officers,
imposing the penalties of imprisonment and disqualification from the right of
suffrage for a period not exceeding five and fourteen years, respectively.
Supposing that in one of said cases, for instance that of an election inspector
who willfully signs a false statement of the result of a ballot (sec. 2639), the
penalty of imprisonment for more than eighteen months is imposed upon him
could be disqualified from voting during his entire lifetime, in accordance with
section 432, if the interpretation of the majority is correct, and it would be to no
purpose still to sentence him to him to the penalty of disqualification from the
right of suffrage for a period not exceeding fourteen years.
It cannot be said to harmonize these provisions, that the disqualification from the
right of suffrage should be imposed only when the penalty of imprisonment
imposed therein less than eighteen months because it is expressly required that
both penalties be imposed in all cases.
Neither can it be said that section 432 governs all cases, in general, and sections
2336 et seq. govern the specific cases referred to therein, because there would
be no justice in the law. One may be sentenced to more than eighteen months of
imprisonment for having committed the crime of serious physical injuries, for
instance, through reckless negligence or in self-defense, but without having used
the means reasonably necessary therefor, and according to the majority opinion
he will be disqualified from voting during his entire who, abusing his position,
willfully commits a falsehood in connection with a ballot entrusted to him, after
serving his sentence which does not exceed fourteen years, will again be
qualified to vote. This cannot be the result countenanced by the law. If the law in
more serious cases wherein an attempt is made directly against the cleanliness
of the election, not disqualifies the guilty party from the right of suffrage for a
period not exceeding fourteen years, it cannot be supposed that its intention is to
forever disqualify therefrom the party guilty of a crime which bears no relation to
the exercise of suffrage and which does not involve the degree of moral turpitude
as in the other case.
I am of the opinion that this anomaly can be avoided only by interpreting section
432 in the sense that the disqualification referred to therein is merely during the
term of the sentence.
RECTO, J.:
I concur in this dissenting opinion of Chief Justice Avancea.
I hereby certify that Hon. George A. Malcolm, Associate Justice, participated in
this decision and voted to affirm the judgment. AVANCEA, C.J.