G. R. No. 163193 - June 15, 2004
SIXTO S. BRILLANTES, JR., petitioner,
D E C I S I O N
CALLEJO, SR., J.:
Before us is the petition for certiorari and prohibition under Rule 65 of the Rules of Court filed by Atty. Sixto S. Brillantes, Jr., a voter and taxpayer, seeking to nullify, for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction, Resolution No. 6712 dated April 28, 2004 approved by the Commission on Elections
(COMELEC) En Banc captioned GENERAL INSTRUCTIONS FOR THE ELECTRONIC TRANSMISSION AND CONSOLIDATION OF ADVANCED RESULTS IN THE MAY 10, 2004 ELECTIONS.1 The petitioner, likewise, prays for the issuance of a temporary restraining order and, after due proceedings, a writ of prohibition to permanently enjoin the respondent COMELEC from enforcing and implementing the questioned resolution.
After due deliberation, the Court resolved to require the respondent to comment on the petition and to require the parties to observe the status quo prevailing before the issuance by the COMELEC of the assailed resolution. The parties were heard on oral arguments on May 8, 2004. The respondent COMELEC was allowed during the hearing to make a presentation of the Electronic Transmission, Consolidation and Dissemination (PHASE III) program of the COMELEC, through Mr. Renato V. Lim of the Philippine Multi-Media System, Inc. (PMSI).
The Court, thereafter, resolved to maintain the status quo order issued on May 6, 2004 and expanded it to cover any and all other issuances related to the implementation of the so-called election quick count project. In compliance with the resolution of the Court, the respondent, the petitioner and the petitioners-in-intervention submitted the documents required of them.
On December 22, 1997, Congress enacted Republic Act No. 84362 authorizing the COMELEC to use an automated election system (AES) for the process of voting, counting of votes and canvassing/consolidating the results of the national and local elections. It also mandated the COMELEC to acquire automated counting machines (ACMs), computer equipment, devices and materials; and to adopt new electoral forms and printing materials.
The COMELEC initially intended to implement the automation during the May 11, 1998 presidential elections, particularly in the Autonomous Region in Muslim Mindanao (ARMM). The failure of the machines to read correctly some automated ballots, however, deferred its implementation.3
In the May 2001 elections, the counting and canvassing of votes for both national and local positions were also done manually, as no additional ACMs had been acquired for that electoral exercise because of time constraints.
On October 29, 2002, the COMELEC adopted, in its Resolution No. 02-0170, a modernization program for the 2004 elections consisting of three (3) phases, to wit:
It resolved to conduct biddings for the three phases.
On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172,4 which allocated the sum of
On January 28, 2003, the COMELEC issued an Invitation to Bid5 for the procurement of supplies, equipment, materials and services needed for the complete implementation of all three phases of the AES with an approved budget of
On February 10, 2003, upon the request of the COMELEC, President Gloria Macapagal-Arroyo issued Executive Order No. 175,6 authorizing the release of a supplemental
On April 15, 2003, the COMELEC promulgated Resolution No. 6074 awarding the contract for Phase II of the AES to Mega Pacific Consortium and correspondingly entered into a contract with the latter to implement the project. On the same day, the COMELEC entered into a separate contract with Philippine Multi-Media System, Inc. (PMSI) denominated "ELECTRONIC TRANSMISSION, CONSOLIDATION & DISSEMINATION OF ELECTION RESULTS PROJECT CONTRACT.8 The contract, by its very terms, pertains to Phase III of the respondent COMELECs AES modernization program. It was predicated on a previous bid award of the contract, for the lease of 1,900 units of satellite-based Very Small Aperture Terminals (VSAT) each unit consisting of an indoor and outdoor equipment, to PMSI for possessing the legal, financial and technical expertise necessary to meet the projects objectives. The COMELEC bound and obliged itself to pay PMSI the sum of
In the meantime, the Information Technology Foundation of the Philippines (ITFP), filed a petition for certiorari and prohibition in this Court for the nullification of Resolution No. 6074 approving the contract for Phase II of AES to Mega Pacific Consortium, entitled and docketed as Information Technology Foundation of the Philippines, et al. vs. COMELEC, et al., G.R. No. 159139. While the case was pending in this Court, the COMELEC paid the contract fee to the PMSI in trenches.
On January 13, 2004, this Court promulgated its Decision nullifying COMELEC Resolution No. 6074 awarding the contract for Phase II of the AES to Mega Pacific Consortium. Also voided was the subsequent contract entered into by the respondent COMELEC with Mega Pacific Consortium for the purchase of computerized voting/counting machines for the purpose of implementing the second phase of the modernization program. Phase II of the AES was, therefore, scrapped based on the said Decision of the Court and the COMELEC had to maintain the old manual voting and counting system for the May 10, 2004 elections.
On the other hand, the validation scheme under Phase I of the AES apparently encountered problems in its implementation, as evinced by the COMELECs pronouncements prior to the elections that it was reverting to the old listing of voters. Despite the scrapping of Phase II of the AES, the COMELEC nevertheless ventured to implement Phase III of the AES through an electronic transmission of advanced "unofficial" results of the 2004 elections for national, provincial and municipal positions, also dubbed as an "unofficial quick count."
Senate President Franklin Drilon had misgivings and misapprehensions about the constitutionality of the proposed electronic transmission of results for the positions of President and Vice-President, and apprised COMELEC Chairman Benjamin Abalos of his position during their meeting on January 28, 2004. He also wrote Chairman Abalos on February 2, 2004. The letter reads:
The COMELEC approved a Resolution on February 10, 2004 referring the letter of the Senate President to the members of the COMELEC and its Law Department for study and recommendation. Aside from the concerns of the Senate President, the COMELEC had to contend with the primal problem of sourcing the money for the implementation of the project since the money allocated by the Office of the President for the AES had already been spent for the acquisition of the equipment. All these developments notwithstanding, and despite the explicit specification in the project contract for Phase III that the same was functionally intended to be an interface of Phases I and II of the AES modernization program, the COMELEC was determined to carry out Phase III of the AES. On April 6, 2004, the COMELEC, in coordination with the project contractor PMSI, conducted a field test of the electronic transmission of election results.
On April 27, 2004, the COMELEC met en banc to update itself on and resolve whether to proceed with its implementation of Phase III of the AES.10 During the said meeting, COMELEC Commissioner Florentino Tuason, Jr. requested his fellow Commissioners that "whatever is said here should be confined within the four walls of this room and the minutes so that walang masyadong problema.11 Commissioner Tuason, Jr. stated that he had no objection as to the Phase III of the modernization project itself, but had concerns about the budget. He opined that other funds of the COMELEC may not be proper for realignment. Commissioners
Despite the dire and serious reservations of most of its members, the COMELEC, the next day, April 28, 2004, barely two weeks before the national and local elections, approved the assailed resolution declaring that it "adopts the policy that the precinct election results of each city and municipality shall be immediately transmitted electronically in advance to the COMELEC, Manila."13 For the purpose, respondent COMELEC established a National Consolidation Center (NCC), Electronic Transmission Centers (ETCs) for every city and municipality, and a special ETC at the COMELEC, Manila, for the Overseas Absentee Voting.14
Briefly, the procedure for this electronic transmission of precinct results is outlined as follows:
III. A Department of Education (DepEd) Supervisor shall be designated in the area who will be assigned in each polling center for the purpose of gathering from all Board of Election Inspectors (BEI) therein the envelopes containing the Copy 3 of the Election Returns (ER) for national positions and Copy 2 of the ER for local positions, both intended for the COMELEC, which shall be used as basis for the encoding and transmission of advanced precinct results.18
The assailed resolution further provides that written notices of the date, time and place of the electronic transmission of advanced precinct results shall be given not later than May 5, 2004 to candidates running for local positions, and not later than May 7, 2004 to candidates running for national positions, as well as to political parties fielding candidates, and parties, organizations/coalitions participating under the party-list system.19
In relation to this, Section 13 of the assailed resolution provides that the encoding proceedings were ministerial and the tabulations were "advanced unofficial results." The entirety of Section 13, reads:
Provided, That candidates for the sangguniang panlalawigan, sangguniang panglungsod or sangguniang bayan belonging to the same slate or ticket shall collectively be entitled to only one common observer at the ETC.
The citizens arm of the Commission, and civic, religious, professional, business, service, youth and other similar organizations collectively, with prior authority of the Commission, shall each be entitled to one (1) observer. Such fact shall be recorded in the Minutes.
The observer shall have the right to observe, take note of and make observations on the proceedings of the team. Observations shall be in writing and, when submitted, shall be attached to the Minutes.
The encoding proceedings being ministerial in nature, and the tabulations being advanced unofficial results, no objections or protests shall be allowed or entertained by the ETC.
In keeping with the "unofficial" character of the electronically transmitted precinct results, the assailed resolution expressly provides that "no print-outs shall be released at the ETC and at the NCC."20 Instead, consolidated and per-precinct results shall be made available via the Internet, text messaging, and electronic billboards in designated locations. Interested parties may print the result published in the COMELEC web site.21
When apprised of the said resolution, the National Citizens Movement for Free Elections (NAMFREL), and the heads of the major political parties, namely, Senator Edgardo J. Angara of the Laban ng Demokratikong Pilipino (LDP) and Chairman of the Koalisyon ng mga Nagkakaisang Pilipino (KNP) Executive Committee, Dr. Jaime Z. Galvez Tan of the Aksyon Demokratiko, Frisco San Juan of the Nationalist Peoples Coalition (NPC), Gen. Honesto M. Isleta of Bangon Pilipinas, Senate President Franklin Drilon of the Liberal Party, and Speaker Jose de Venecia of the Lakas-Christian Muslim Democrats (CMD) and Norberto M. Gonzales of the Partido Demokratiko Sosyalista ng Pilipinas, wrote the COMELEC, on May 3, 2004 detailing their concerns about the assailed resolution:
This refers to COMELEC Resolution 6712 promulgated on 28 April 2004.
NAMFREL and political parties have the following concerns about Resolution 6712 which arose during consultation over the past week[:]
To us, it does appear that the use of election returns as prescribed in Resolution 6712 departs from the letters and spirit of the law, as well as previous practice. More importantly, questions of legalities aside, the conduct of an advanced count by the COMELEC may affect the credibility of the elections because it will differ from the results obtained from canvassing. Needless to say, it does not help either that Resolution 6712 was promulgated only recently, and perceivably, on the eve of the elections.
In view of the foregoing, we respectfully request the Commission to reconsider Resolution 6712 which authorizes the use of election returns for the consolidation of the election results for the May 10, 2004 elections.22
The Present Petition
On May 4, 2004, the petition at bar was filed in this Court.
Jose Concepcion, Jr., Jose De Venecia, Edgardo J. Angara, Dr. Jaime Z. Galvez-Tan, Franklin M. Drilon, Frisco San Juan, Norberto M. Gonzales, Honesto M. Isleta and Jose A. Bernas, filed with this Court their Motion to Admit Attached Petition-in-Intervention. In their petition-in-intervention, movants-petitioners urge the Court to declare as null and void the assailed resolution and permanently enjoin the respondent COMELEC from implementing the same. The Court granted the motion of the petitioners-in-intervention and admitted their petition.
In assailing the validity of the questioned resolution, the petitioner avers in his petition that there is no provision under Rep. Act No. 8436 which authorizes the COMELEC to engage in the biometrics/computerized system of validation of voters (Phase I) and a system of electronic transmission of election results (Phase III). Even assuming for the nonce that all the three (3) phases are duly authorized, they must complement each other as they are not distinct and separate programs but mere stages of one whole scheme. Consequently, considering the failed implementation of Phases I and II, there is no basis at all for the respondent COMELEC to still push through and pursue with Phase III. The petitioner essentially posits that the counting and consolidation of votes contemplated under Section 6 of Rep. Act No. 8436 refers to the official COMELEC count under the fully automated system and not any kind of "unofficial" count via electronic transmission of advanced results as now provided under the assailed resolution.
The petitioners-in-intervention point to several constitutional infractions occasioned by the assailed resolution. They advance the view that the assailed resolution effectively preempts the sole and exclusive authority of Congress under Article VII, Section 4 of the Constitution to canvass the votes for President and Vice-President. Further, as there has been no appropriation by Congress for the respondent COMELEC to conduct an "unofficial" electronic transmission of results of the May 10, 2004 elections, any expenditure for the said purpose contravenes Article VI, Section 29 (par. 1) of the Constitution.
On statutory grounds, the petitioner and petitioners-in-intervention contend that the assailed resolution encroaches upon the authority of NAMFREL, as the citizens accredited arm, to conduct the "unofficial" quick count as provided under pertinent election laws. It is, likewise, impugned for violating Section 52(i) of the Omnibus Election Code, relating to the requirement of notice to the political parties and candidates of the adoption of technological and electronic devices during the elections.
For its part, the COMELEC preliminarily assails the jurisdiction of this Court to pass upon the assailed resolutions validity claiming that it was promulgated in the exercise of the respondent COMELECs executive or administrative power. It asserts that the present controversy involves a "political question;" hence, beyond the ambit of judicial review. It, likewise, impugns the standing of the petitioner to file the present petition, as he has not alleged any injury which he would or may suffer as a result of the implementation of the assailed resolution.
On the merits, the respondent COMELEC denies that the assailed resolution was promulgated pursuant to Rep. Act No. 8436, and that it is the implementation of Phase III of its modernization program. Rather, as its bases, the respondent COMELEC invokes the general grant to it of the power to enforce and administer all laws relative to the conduct of elections and to promulgate rules and regulations to ensure free, orderly and honest elections by the Constitution, the Omnibus Election Code, and Rep. Acts Nos. 6646 and 7166. The COMELEC avers that granting arguendo that the assailed resolution is related to or connected with Phase III of the modernization program, no specific law is violated by its implementation. It posits that Phases I, II and III are mutually exclusive schemes such that, even if the first two phases have been scrapped, the latter phase may still proceed independently of and separately from the others. It further argues that there is statutory basis for it to conduct an "unofficial" quick count. Among others, it invokes the general grant to it of the power "to ensure free, orderly, honest, peaceful and credible elections." Finally, it claims that it had complied with Section 52(i) of the Omnibus Election Code, as the political parties and all the candidates of the 2004 elections were sufficiently notified of the electronic transmission of advanced election results.
The COMELEC trivializes as "purely speculative" these constitutional concerns raised by the petitioners-in-intervention and the Senate President. It maintains that what is contemplated in the assailed resolution is not a canvass of the votes but merely consolidation and transmittal thereof. As such, it cannot be made the basis for the proclamation of any winning candidate. Emphasizing that the project is "unofficial" in nature, the COMELEC opines that it cannot, therefore, be considered as preempting or usurping the exclusive power of Congress to canvass the votes for President and Vice-President.
At the said hearing on May 8, 2004, the Court set forth the issues for resolution as follows:
The Ruling of the Court
The issues, as earlier defined, shall now be resolved in seriatim:
The Petitioners And Petitioners-In-Intervention Possess The Locus Standi To Maintain The Present Action
The gist of the question of standing is whether a party has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.23 Since the implementation of the assailed resolution obviously involves the expenditure of funds, the petitioner and the petitioners-in-intervention, as taxpayers, possess the requisite standing to question its validity as they have sufficient interest in preventing the illegal expenditure of money raised by taxation.24 In essence, taxpayers are allowed to sue where there is a claim of illegal disbursement of public funds, or that public
Most of the petitioners-in-intervention are also representatives of major political parties that have participated in the May 10, 2004 elections. On the other hand, petitioners-in-intervention Concepcion and Bernas represent the National Citizens Movement for Free Elections (NAMFREL), which is the citizens arm authorized to conduct an "unofficial" quick count during the said elections. They have sufficient, direct and personal interest in the manner by which the respondent COMELEC would conduct the elections, including the counting and canvassing of the votes cast therein.
Moreover, the petitioners-in-intervention Drilon and De Venecia are, respectively, President of the Senate and Speaker of the House of Representatives, the heads of Congress which is exclusively authorized by the Constitution to canvass the votes for President and Vice-President. They have the requisite standing to prevent the usurpation of the constitutional prerogative of Congress.
The Issue Raised By The Petition Is Justiciable
Article VIII, Section 1 of the 1987 Constitution expands the concept of judicial review by providing that:
The issue raised in the present petition does not merely concern the wisdom of the assailed resolution but focuses on its alleged disregard for applicable statutory and constitutional provisions. In other words, that the petitioner and the petitioners-in-intervention are questioning the legality of the respondent COMELECs administrative issuance will not preclude this Court from exercising its power of judicial review to determine whether or not there was grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the respondent COMELEC in issuing Resolution No. 6712. Indeed, administrative issuances must not override, supplant or modify the law, but must remain consistent with the law they intend to carry out.27 When the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected, is justiciable the problem being one of legality or validity, not its wisdom.28 In the present petition, the Court must pass upon the petitioners contention that Resolution No. 6712 does not have adequate statutory or constitutional basis.
Although not raised during the oral arguments, another procedural issue that has to be addressed is whether the substantive issues had been rendered moot and academic. Indeed, the May 10, 2004 elections have come and gone. Except for the President and Vice-President, the newly- elected national and local officials have been proclaimed. Nonetheless, the Court finds it necessary to resolve the merits of the substantive issues for future guidance of both the bench and bar.29 Further, it is settled rule that courts will decide a question otherwise moot and academic if it is "capable of repetition, yet evading review."30
The Respondent COMELEC Committed Grave Abuse Of Discretion Amounting To Lack Or Excess Of Jurisdiction In Issuing Resolution No. 6712
The preliminary issues having been thus resolved, the Court shall proceed to determine whether the respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in promulgating the assailed resolution.
The Court rules in the affirmative.
An administrative body or tribunal acts without jurisdiction if it does not have the legal power to determine the matter before it; there is excess of jurisdiction where the respondent, being clothed with the power to determine the matter, oversteps its authority as determined by law.31 There is grave abuse of discretion justifying the issuance of the writ of certiorari when there is a capricious and whimsical exercise of his judgment as is equivalent to lack of jurisdiction.32
First. The assailed resolution usurps, under the guise of an "unofficial" tabulation of election results based on a copy of the election returns, the sole and exclusive authority of Congress to canvass the votes for the election of President and Vice-President. Article VII, Section 4 of the Constitution provides in part:
As early as January 28, 2004, Senate President Franklin M. Drilon already conveyed to Chairman Benjamin S. Abalos, Sr. his deep-seated concern that the respondent COMELEC could not and should not conduct any "quick count" of the votes cast for the positions of President and Vice-President. In his Letter dated February 2, 200433 addressed to Chairman Abalos, Senate President Drilon reiterated his position emphasizing that "any quick count to be conducted by the Commission on said positions would in effect constitute a canvass of the votes of the President and Vice-President, which not only would be pre-emptive of the authority of Congress, but would also be lacking of any constitutional authority."34
Nonetheless, in disregard of the valid objection of the Senate President, the COMELEC proceeded to promulgate the assailed resolution. Such resolution directly infringes the authority of Congress, considering that Section 4 thereof allows the use of the third copy of the Election Returns (ERs) for the positions of President, Vice-President, Senators and Members of the House of Representatives, intended for the COMELEC, as basis for the encoding and transmission of advanced precinct results, and in the process, canvass the votes for the President and Vice-President, ahead of the canvassing of the same votes by Congress.
Parenthetically, even the provision of Rep. Act No. 8436 confirms the constitutional undertaking of Congress as the sole body tasked to canvass the votes for the President and Vice-President. Section 24 thereof provides:
The contention of the COMELEC that its tabulation of votes is not prohibited by the Constitution and Rep. Act No. 8436 as such tabulation is "unofficial," is puerile and totally unacceptable. If the COMELEC is proscribed from conducting an official canvass of the votes cast for the President and Vice-President, the COMELEC is, with more reason, prohibited from making an "unofficial" canvass of said votes.
The COMELEC realized its folly and the merits of the objection of the Senate President on the constitutionality of the resolution that it decided not to conduct an "unofficial" quick count of the results of the elections for President and Vice-President. Commissioner Sadain so declared during the hearing:
Second. The assailed COMELEC resolution contravenes the constitutional provision that "no money shall be paid out of the treasury except in pursuance of an appropriation made by law."37
By its very terms, the electronic transmission and tabulation of the election results projected under Resolution No. 6712 is "unofficial" in character, meaning "not emanating from or sanctioned or acknowledged by the government or government body.38 Any disbursement of public funds to implement this project is contrary to the provisions of the Constitution and Rep. Act No. 9206, which is the 2003 General Appropriations Act. The use of the COMELEC of its funds appropriated for the AES for the "unofficial" quick count project may even be considered as a felony under Article 217 of the Revised Penal Code, as amended.39
Irrefragably, the implementation of the assailed resolution would entail, in due course, the hiring of additional manpower, technical services and acquisition of equipment, including computers and software, among others. According to the COMELEC, it needed
The COMELEC posited during the hearing that the 2003 General Appropriations Act has appropriated the amount needed for its "unofficial" tabulation. We quote the transcript of stenographic notes taken during the hearing:
But then the COMELEC, through Commissioner Sadain, admitted during the said hearing that although it had already approved the assailed resolution, it was still looking for the
Inexplicably, Commissioner Sadain contradicted himself when he said that its Financial Department had already found the money, but that proper documentation was forthcoming:
Earlier, during the April 27, 2004 meeting of the COMELEC En Banc, the Commissioners expressed their serious concerns about the lack of funds for the project, the propriety of using the funds for Phase III of its modernization, and the possibility of realigning funds to finance the project:
We have reviewed Rep. Act No. 9206, the General Appropriations Act, which took effect on April 23, 2003 and find no appropriation for the project of the COMELEC for electronic transmission of "unofficial" election results. What is appropriated therein is the amount of
Under paragraph 3 of the special provisions of Rep. Act No. 9206, the amount of
Section 52 of Rep. Act No. 9206 proscribes any change or modification in the expenditure items authorized thereunder. Thus:
Neither can the money needed for the project be taken from the COMELECs savings, if any, because it would be violative of Article VI, Section 25 (5)47 of the 1987 Constitution.
The power to augment from savings lies dormant until authorized by law.48 In this case, no law has, thus, far been enacted authorizing the respondent COMELEC to transfer savings from another item in its appropriation, if there are any, to fund the assailed resolution. No less than the Secretary of the Senate certified that there is no law appropriating any amount for an "unofficial" count and tabulation of the votes cast during the May 10, 2004 elections:
What is worrisome is that despite the concerns of the Commissioners during its En Banc meeting on April 27, 2004, the COMELEC nevertheless approved the assailed resolution the very next day. The COMELEC had not executed any supplemental contract for the implementation of the project with PMSI. Worse, even in the absence of a certification of availability of funds for the project, it approved the assailed resolution.
Third. The assailed resolution disregards existing laws which authorize solely the duly-accredited citizens arm to conduct the "unofficial" counting of votes. Under Section 27 of Rep. Act No. 7166, as amended by Rep. Act No. 8173,49 and reiterated in Section 18 of Rep. Act No. 8436,50 the accredited citizens arm - in this case, NAMFREL - is exclusively authorized to use a copy of the election returns in the conduct of an "unofficial" counting of the votes, whether for the national or the local elections. No other entity, including the respondent COMELEC itself, is authorized to use a copy of the election returns for purposes of conducting an "unofficial" count. In addition, the second or third copy of the election returns, while required to be delivered to the COMELEC under the aforementioned laws, are not intended for undertaking an "unofficial" count. The aforesaid COMELEC copies are archived and unsealed only when needed by the respondent COMELEC to verify election results in connection with resolving election disputes that may be imminent. However, in contravention of the law, the assailed Resolution authorizes the so-called Reception Officers (RO), to open the second or third copy intended for the respondent COMELEC as basis for the encoding and transmission of advanced "unofficial" precinct results. This not only violates the exclusive prerogative of NAMFREL to conduct an "unofficial" count, but also taints the integrity of the envelopes containing the election returns, as well as the returns themselves, by creating a gap in its chain of custody from the Board of Election Inspectors to the COMELEC.
Fourth. Section 52(i) of the Omnibus Election Code, which is cited by the COMELEC as the statutory basis for the assailed resolution, does not cover the use of the latest technological and election devices for "unofficial" tabulations of votes. Moreover, the COMELEC failed to notify the authorized representatives of accredited political parties and all candidates in areas affected by the use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices. Section 52(i) reads:
From the clear terms of the above provision, before the COMELEC may resort to and adopt the latest technological and electronic devices for electoral purposes, it must act in accordance with the following conditions:
It is quite obvious that the purpose of this provision is to accord to all political parties and all candidates the opportunity to object to the effectiveness of the proposed technology and devices, and, if they are so minded not to object, to allow them ample time to field their own trusted personnel especially in far flung areas and to take other necessary measures to ensure the reliability of the proposed electoral technology or device.
As earlier pointed out, the assailed resolution was issued by the COMELEC despite most of the Commissioners apprehensions regarding the legal, operational and financial impediments thereto. More significantly, since Resolution No. 6712 was made effective immediately a day after its issuance on April 28, 2004, the respondent COMELEC could not have possibly complied with the thirty-day notice requirement provided under Section 52(i) of the Omnibus Election Code. This indubitably violates the constitutional right to due process of the political parties and candidates. The Office of the Solicitor General (OSG) concedes this point, as it opines that "the authorized representatives of accredited political parties and candidates should have been notified of the adoption of the electronic transmission of election returns nationwide at the latest on April 7, 2004, April 8 and 9 being Holy Thursday and Good Friday, pursuant to Section 52(i) of the Omnibus Election Code."51 Furthermore, during the hearing on May 18, 2004, Commissioner Sadain, who appeared for the COMELEC, unabashedly admitted that it failed to notify all the candidates for the 2004 elections, as mandated by law:
The respondent COMELEC has, likewise, failed to submit any resolution or document to prove that it had notified all political parties of the intended adoption of Resolution No. 6712, in compliance with Section 52(i) of the Omnibus Election Code. This notwithstanding the fact that even long before the issuance of the assailed resolution, it had admittedly entered into a contract on April 15, 200353 and acquired facilities pertaining to the implementation of the electronic transmission and official tabulation of election results. As correctly pointed out by the petitioners-in-intervention, the invitations dated January 15, 2004 regarding the January 20, 2004 COMELEC Conference with the political parties on election security measures did not mention electronic transmission of advanced results, much less the formal adoption of the purpose of the conference. Such "notices" merely invited the addressee thereof or its/his authorized representative to a conference where the COMELEC would show a sample of the official ballot to be used in the elections, discuss various security measures that COMELEC had put in place, and solicit suggestions to improve the administration of the polls.54 Further, the invitations purportedly sent out to the political parties regarding the April 6, 2004 Field Test of the Electronic Transmission, Consolidation and Dissemination System to be conducted by the COMELEC appear to have been sent out in the late afternoon of April 5, 2004, after office hours. There is no showing that all the political parties attended the Field Test, or received the invitations. More importantly, the said invitations did not contain a formal notice of the adoption of a technology, as required by Section 52(i) of the Omnibus Election Code.55
Fifth. The assailed resolution has no constitutional and statutory basis. That respondent COMELEC is the sole body tasked to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall"56 and to ensure "free, orderly, honest, peaceful and credible elections"57 is beyond cavil. That it possesses the power to promulgate rules and regulations in the performance of its constitutional duties is, likewise, undisputed. However, the duties of the COMELEC under the Constitution, Rep. Act No. 7166, and other election laws are carried out, at all times, in its official capacity. There is no constitutional and statutory basis for the respondent COMELEC to undertake a separate and an "unofficial" tabulation of results, whether manually or electronically. Indeed, by conducting such "unofficial" tabulation of the results of the election, the COMELEC descends to the level of a private organization, spending public funds for the purpose. Besides, it is absurd for the COMELEC to conduct two kinds of electoral counts a slow but "official" count, and an alleged quicker but "unofficial" count, the results of each may substantially differ.
Clearly, the assailed resolution is an implementation of Phase III of the modernization program of the COMELEC under Rep. Act No. 8436. Section 2 of the assailed resolution expressly refers to the Phase III-Modernization Project of the COMELEC. Since this Court has already scrapped the contract for Phase II of the AES, the COMELEC cannot as yet implement the Phase III of the program. This is so provided in Section 6 of Rep. Act No. 8436.
SEC. 6. Authority to Use an Automated Election System. -- To carry out the above-stated policy, the Commission on Elections, herein referred to as the Commission, is hereby authorized to use an automated election system, herein referred to as the System, for the process of voting, counting of votes and canvassing/consolidation of results of the national and local elections: Provided, however, That for the May 11, 1998 elections, the System shall be applicable in all areas within the country only for the positions of president, vice-president, senators and parties, organizations or coalitions participating under the party-list system.
To achieve the purpose of this Act, the Commission is authorized to procure by purchase, lease or otherwise, any supplies, equipment, materials and services needed for the holding of the elections by an expedited process of public bidding of vendors, suppliers or lessors: Provided, That the accredited political parties are duly notified of and allowed to observe but not to participate in the bidding. If in spite of its diligent efforts to implement this mandate in the exercise of this authority, it becomes evident by February 9, 1998 that the Commission cannot fully implement the automated election system for national positions in the May 11, 1998 elections, the elections for both national and local positions shall be done manually except in the Autonomous Region in Muslim Mindanao (ARMM) where the automated election system shall be used for all positions.
The AES provided in Rep. Act No. 8436 constitutes the entire "process of voting, counting of votes and canvassing/consolidation of results of the national and local elections" corresponding to the Phase I, Phase II and Phase III of the AES of the COMELEC. The three phases cannot be effected independently of each other. The implementation of Phase II of the AES is a condition sine qua non to the implementation of Phase III. The nullification by this Court of the contract for Phase II of the System effectively put on hold, at least for the May 10, 2004 elections, the implementation of Phase III of the AES.
Sixth. As correctly observed by the petitioner, there is a great possibility that the "unofficial" results reflected in the electronic transmission under the supervision and control of the COMELEC would significantly vary from the results reflected in the COMELEC official count. The latter follows the procedure prescribed by the Omnibus Election Code, which is markedly different from the procedure envisioned in the assailed resolution.
Under the Omnibus Election Code, after the votes are cast and the polls closed, the Board of Election Inspectors (BEI) for each precinct is enjoined to publicly count the votes and record the same simultaneously on the tally boards and on two sets of ERs. Each set of the ER is prepared in eight (8) copies. After the ERs are accomplished, they are forwarded to the Municipal Board of Canvassers (MBC), which would canvass all the ERs and proclaim the elected municipal officials. All the results in the ERs are transposed to the statements of votes (SOVs) by precinct. These SOVs are then transferred to the certificates of canvass (COCs) which are, in turn, brought to the Provincial Board of Canvassers (PBC). Subsequently, the PBC would canvass all the COCs from various municipalities and proclaim the elected provincial officials, including those to the House of Representatives. The PBC would then prepare two sets of Provincial Certificates of Canvass (PCOCs). One set is forwarded to Congress for its canvassing of the results for the President and Vice-President. The other set is forwarded to the COMELEC for its canvassing of the results for Senators.
As the results are transposed from one document to another, and as each document undergoes the procedure of canvassing by various Boards of Canvassers, election returns and certificates of canvass are objected to and at times excluded and/or deferred and not tallied, long after the pre-proclamation controversies are resolved by the canvass boards and the COMELEC.
On the other hand, under the assailed resolution, the precinct results of each city and municipality received by the ETCs would be immediately electronically transmitted to the NCC. Such data, which have not undergone the process of canvassing, would expectedly be dissimilar to the data on which the official count would be based.
Resultantly, the official and unofficial canvass, both to be administered by the respondent COMELEC, would most likely not tally. In the past elections, the "unofficial" quick count conducted by the NAMFREL had never tallied with that of the official count of the COMELEC, giving rise to allegations of "trending" and confusion. With a second "unofficial" count to be conducted by the official election body, the respondent COMELEC, in addition to its official count, allegations of "trending," would most certainly be aggravated. As a consequence, the electoral process would be undermined.
The only intimated utility claimed by the COMELEC for the "unofficial" electronic transmission count is to avert the so-called "dagdag-bawas." The purpose, however, as the petitioner properly characterizes it, is a total sham. The Court cannot accept as tenable the COMELECs profession that from the results of the "unofficial" count, it would be able to validate the credibility of the official tabulation. To sanction this process would in effect allow the COMELEC to preempt or prejudge an election question or dispute which has not been formally brought before it for quasi-judicial cognizance and resolutions.
Moreover, the Court doubts that the problem of "dagdag-bawas" could be addressed by the implementation of the assailed resolution. It is observed that such problem arises because of the element of human intervention. In the prevailing set up, there is human intervention because the results are manually tallied, appreciated, and canvassed. On the other hand, the electronic transmission of results is not entirely devoid of human intervention. The crucial stage of encoding the precinct results in the computers prior to the transmission requires human intervention. Under the assailed resolution, encoding is accomplished by employees of the PMSI. Thus, the problem of "dagdag-bawas" could still occur at this particular stage of the process.
As it stands, the COMELEC "unofficial" quick count would be but a needless duplication of the NAMFREL "quick" count, an illegal and unnecessary waste of government funds and effort.
The Court is mindful of the salutary goals that the respondent COMELEC had envisioned in promulgating the assailed resolution, to wit: [t]o renew the publics confidence in the Philippine Electoral System by:
Doubtless, these are laudable intentions. But the rule of law requires that even the best intentions must be carried out within the parameters of the Constitution and the law. Verily, laudable purposes must be carried out by legal methods.59
WHEREFORE, the petition is GRANTED. The assailed Resolution No. 6712 dated April 28, 2004 issued by the Commission on Elections (COMELEC) En Banc is hereby declared NULL AND VOID.
Davide, Jr., Puno, Vitug*, Panganiban, Quisumbing, Ynares-Santiago**, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.
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