G.R. No. 188456 - H. HARRY ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. BAGARES, ALLAN JONES F. LARDIZABAL, GILBERT T. ANDRES, IMMACULADA D. GARCIA, ERLINDA T. MERCADO, FRANCISCO A. ALCUAZ, MA. AZUCENA P. MACEDA, ALVIN A. PETERS, suing as taxpayers and as concerned citizens, Petitioners, v. COMMISSION ON ELECTIONS REPRESENTED BY JOSE MELO, COMELEC SPECIAL BIDS AND AWARDS COMMITTEE REPRESENTED BY ITS CHAIRMAN HON. FERDINAND RAFANAN, DEPARTMENT OF BUDGET AND MANAGEMENT REPRESENTED BY HON. ROLANDO ANDAYA, TOTAL INFORMATION MANAGEMENT, INC., AND SMARTMATIC INTERNATIONAL, INC., Respondents; ATTY. PETE QUIRINO-QUADRA, Petitioner-in-Intervention; SENATE OF THE PHILIPPINES, represented by its President, JUAN PONCE ENRILE, Movant-Intervenor.

 

 

                                                                           Promulgated:                                                                                                                                                                                                                                                                          September 10, 2009

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

 

 

DISSENTING  OPINION

 

CARPIO, J.:

 

 

         I vote to grant the petition in part.  The stipulations in the Contract[1] between the Commission on Elections (COMELEC), on the one hand, and Total Information Management, Inc., (TIM) and Smartmatic International, Inc., (Smartmatic), on the other, implementing a nationwide automated election in the 10 May 2010 elections, are void for being violative of Section 5 and Section 26 of Republic Act No. 8436 (RA 8436), as amended by Republic Act No. 9369 (RA 9369).

 

         Section 5 of RA 8436, as amended, mandates a pilot or partial automation before a nationwide automated election system can be implemented. Section 26 of the same law vests on the COMELEC “exclusive control and supervision” over the automated election system. The Contract violates these provisions of RA 8436, as amended.

 

 

Background

 

 

         On 23 January 2007, Congress passed RA 9369 amending the first automated election law, RA 8436.[2]  Section 5 of RA 8436, as amended by RA 9369, which amendment took effect on 10 February 2007, authorized the COMELEC to:

 

 [U]se an automated election system or systems in the same election in different provinces, whether paper-based or a direct recording automated 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 election, which shall be held immediately after effectivity of this Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao, to be chosen by the Commission x x x x In succeeding regular national or local elections, the AES shall be implemented nationwide. (Emphasis supplied)

 

 

The COMELEC did not use any automated election system in the 14 May 2007 elections, the national and local elections held after RA 9369 took effect.

On 10 July 2009, the COMELEC, on the one hand, and TIM and Smartmatic (Provider), on the other, signed the Contract for the automated tallying and recording of votes cast nationwide in the 10 May 2010 elections. For  P7,191,484,739.48, the COMELEC leased for use in the 10 May 2010 elections 82,200 optical scanners (and related equipment) and hired ancillary services of the Provider.[3] 

 

On 9 July 2009, petitioners, as taxpayers and citizens, filed this petition[4] to enjoin the signing of the Contract or its implementation and to compel disclosure of the terms of the Contract and other agreements between the Provider and its subcontractors.[5] Petitioners sought the Contract’s invalidation for non-compliance with the requirement in Section 5 of RA 8436, as amended, mandating the partial use of an automated election system before deploying it nationwide. To further support their claim on the Contract’s invalidity, petitioners alleged that (1) the optical scanners leased by the COMELEC “do not satisfy the minimum systems capabilities” under RA 8436, as amended and (2)  the Provider not only failed to submit relevant documents during the bidding but also failed to show “community of interest” among its constituent corporations as required in Information Technology Foundation of the Philippines v. COMELEC (Infotech).[6]

 

In their Comments, respondents COMELEC and the Provider raised the following threshold contentions: (1) petitioners neither have legal interest nor locus standi to question the validity of the Contract as none of them was party to the Contract and the petition does not raise constitutional issues; (2) the controversy is not ripe for adjudication as the 2010 elections have not taken place; (3) petitioners failed to exhaust administrative remedies;[7] (4) petitioners failed to observe the hierarchy of courts by not seeking prior recourse from lower courts of concurrent jurisdiction; and (5) neither the writ of mandamus nor the writ of certiorari lies because the documents petitioners wish to compel production are available to the public and the COMELEC’s execution of the Contract does not involve the exercise of its quasi-judicial powers.

 

On the merits, respondents defend the validity of the Contract on the following grounds: (1) the requirement for the limited use of an automated election system was intended for the 14 May 2007 elections, the national and local elections “held immediately after effectivity” of RA 9369 on 10 February 2007; (2) compliance with the requirement of limited automation in the 2007 elections is not a condition precedent for deploying the automated system nationwide in the 2010 elections following the mandate of Section 5, as amended, that  “In succeeding regular national or local elections, the AES shall be implemented nationwide;” (3) compliance with Section 5, as amended, is merely directory considering Section 12 of RA 8436, as amended by RA 9369, which provides that “With respect to the May 10, 2010 election and succeeding electoral exercises, the system procured must have demonstrated capability and been successfully used in a prior electoral exercise here or abroad. Participation in the 2007 pilot exercise shall not be conclusive of the system's fitness.”; and (4) Republic Act No. 9525 (RA 9525), enacted on 23 March 2009, allocating the budget for “an automated election system” in the  10 May 2010 elections represents the most recent expression of legislative intent on the subject.

Belying  petitioners' allegation that the optical scanners failed to meet minimum systems capabilities under RA 9369, respondents invoked the results of the pre-procurement demonstration of the system before the COMELEC and other government officials on four occasions with the tested scanners showing 100% reading accuracy, surpassing COMELEC’s 99.995% standard.[8]

 

Lastly, respondents contended that the Provider not only complied with the bidding documentation requirements but also met the “community of interest” standard in Infotech for joint ventures. On disclosing the terms of its subcontracts, the Provider maintained that the Contract does not require them to do so.

 

We granted intervention to the Philippine Senate, which filed a Comment-in-Intervention, joining causes with respondents, and to Atty. Pete Quadra, who filed a Petition-in-Intervention, assailing the lack of credible systems audit under the Contract.  We also requested three amici curiae to comment on the petition.[9]

 

         We heard the parties and an amicus curiae[10] in oral arguments on 29 July 2009.

 

In their Memoranda, respondents called the Court's attention to Senate  Resolution Nos. 96 and 567, passed after the 11 August 2008 automated elections in the Autonomous Region in Muslim Mindanao (ARMM),  urging the COMELEC to prepare for the  “full automation” of the 10 May 2010 elections. Respondents TIM and Smartmatic also raised a new alternative argument that the 2008 ARMM elections constitute “substantial compliance” with the initial limited use of an automated system under Section 5 of RA 8436, as amended.[11]   

 

 

On the Threshold Issues

 

 

The threshold issues respondents raise on petitioners’ lack of locus standi and non-exhaustion of administrative remedies were similarly raised and found surmountable in Infotech. There, as here, the individual petitioners were citizens and taxpayers who sought immediate recourse from this Court in a petition for certiorari to annul the award of the contract to use an automated election system in the 2004 elections. The Court in Infotech found the petitioners’ status as taxpayers sufficient to give them personality to file the suit since the contract involved the disbursement of public funds.[12] The underlying important public interest involved in the contract in Infotech, as here, of ensuring the “conduct of free, orderly, clean, honest and credible elections”[13] also suffices to vest legal standing to petitioners as citizens.

 

Direct resort to this Court was not deemed fatal to the cause of the petitioners in Infotech for facts peculiar to that case[14] and  because the nature of the petition allows for the application of some exceptions to the rule on prior resort to administrative remedies, namely, the unreasonability of insisting on compliance with the rule, resort to this Court is the plain, speedy and adequate remedy, and there is urgent need for judicial intervention.[15] These exceptions equally apply here and doubly serve as grounds to reject the COMELEC’s objection on prematurity of this suit. Indeed, waiting until after the Contract has been implemented, as what the COMELEC wants  petitioners to do, is a sure way to moot any challenges to its validity. 

 

Nor can the rule of mandating observance of hierarchy of courts bar resolution of this suit on the merits. Just as we found it proper to review the contract in Infotech, we should do so now for the same reasons that we waived compliance with the rule on exhausting remedies before the COMELEC.

 

On the Validity of the Contract

 

The Use of an Automated Election System Nationwide

Under the Contract Violates Section 5 of RA 8436,

as Amended

 

Section 5 of RA 8436, as

Amended, Imposes a Mandatory

Two-tiered Use of an Automated

Election System 

 

 

         Contrary to the COMELEC’s view that Section 5,[16] as amended, “merely envisions” an initial limited use of an automated system in the 2007 elections,[17] 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.[18] 

 

         The sponsorship speech interpellation and floor deliberations on Senate Bill 2231, the precursor Section 6 of RA 9369 (amending and re-numbering Section 6 of RA 8436), confirm the legislative intent to adopt a dual-phased scheme of implementation, thus:

 

          [Interpellation by Senator Aquilino Pimentel, Jr. on the Sponsorship Speech of Senator Richard Gordon]:

 

            Senator Gordon . [], it is important that we show that in our proposal here today, which I am sure practically every member of the Senate will help me craft better legislation, in the interpellations and on the amendments, it is my hope that we could proceed with this.  We impose an absolute minimum of 2 cities and 2 provinces, so that if we can do so with 10 cities of 10 provinces, so be it, Mr. President.

 

            Senator Pimentel.  The gentleman is trying to pilot the. . . .

 

            Senator Gordon.  Yes, Mr. President,  That is right.  We want to pilot this so that by 2010, we should be ready to go all out.  That is why it is important that we take the first steps.   We can even pilot this in all the highly urbanized cities or one remote province, like somewhere in Mindanao, even in Tawi-Tawior, for that matter, just to prove the point that it can happen.

 

            It is up to us here in the Senate now to say, if we want to inculcate or to put in there the number of cities or the number of provinces that are committed, this shall be part of it.  That is why we leave that open-ended, Mr. President.

 

            x x x x

 

            Senator Pimentel.  Mr. President, the comments of the gentleman really demonstrate that there are practical suggestions that he is espousing, especially on the matter of starting to cover not the entire country immediately in one fell blow but gradually.  There is merit to that proposal.[19] (Emphasis supplied)

 

            x x x x

[Interpellation by Senator Luisa P. Estrada of Senator Gordon during Second Reading]:

 

Senator Estrada (L).   Will the gentleman agree with me that the best way to remove doubt as to the integrity of the system is to conduct the mock elections at least three days prior to the actual elections?

 

            Senator Gordon.  Actually, Mr. President, we could do that, yes, but we provided three months for the conduct of the mock elections so that we have enough time to correct the kinks, if there are any.  And we would need that time, after which the whole thing is secured and the only time the system gets started is in the morning of the elections, just like the previous elections when the ballot box is opened and the machine codes are simultaneously triggered.

 

            Senator Estrada (L).  Mr. President, I think, that is a long time.  Three months is a long time to conduct mock elections before the actual elections.

 

            Senator Gordon.  That is why, Mr. President, in the initial phase of this exercise, for the year 2007, the absolute minimum is two cities and two provinces so we can really control the scenario.

 

            Now, when we see that this had worked in a controlled scenario, perhaps, I hope that we can do all the major cities of the country, all the highly urbanized cities in the country, because I guess that this is just an absolute minimum.  But, certainly, when the main elections come in 2010, I am sure technology will be advancing so well that we could actually take the kinks out of the system, protect it and make sure that we can even do a mock election maybe even closer than the aforesaid three months.[20] (Emphasis supplied)

 

 

         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.”[21] 

 

         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.[22] 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%.

 

Nor can it be said that compliance with the requirement in RA 9369 for pre-election field test and mock election,[23] stipulated in the Contract,[24] 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.[25] Indeed, field tests and mock elections can never replicate actual conditions on election day.[26]

 

For the same reason, respondents’ reliance on the results of the pre-procurement demonstration of the system hardly suffices to prove its reliability, much less functionality, in actual election conditions. The following observations on the laboratory tests by amicus Information Technology Foundation of the Philippines (ITFP), are enlightening:

 

           The demonstration of PCOS only showed that the machine can scan accurately.  Just like any computerized system, designing an Automated Election System (AES) should not only consider hardware that works.  It should also ensure that all the other elements of an automated system such as the communication and transmission devices and networks, the servers, the end-to-end software system, the “peopleware” (project managers, system designers, development, maintenance personnel, operators, trainers, etc.), and the users (voters) mesh together smoothly.  The scanning capability of the hardware has been demonstrated.  The other equally important elements have not.  It is these other elements that should now be considered and focused on and be the concentration of the pilot run.  The framers of the law (RA 9369), who were assisted by a Technical Working Group (TWG), appreciate[d] the complexities of an automated election system and for that reason included the requirement of a pilot run.[27] (Emphasis supplied)

        

 

         The COMELEC, dangerously parroting the line of the party which stands to profit from the Contract, justifies non-compliance with the partial  automation mandated in Section 5, as amended, by treating such partial automation as limited to the 2007 elections. Continuing with their line of reasoning and thus, ignoring the compelling reason behind such partial automation, respondents conclude that if Section 5, as amended, is interpreted as requiring an initial partial use of the automated system before its full deployment nationwide, then “Philippine elections will never be automated.”[28] 

 

         It may be that, Section 5, as amended, needs statutory interpretation whether a partial automation is a condition precedent to a full national automation. Section 5, as amended, provides that: (1) “for the regular national and local election, which shall be held immediately after 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” and the elections of 14 May 2007 was the first regular national and local election after RA 9369 took effect on 10 February 2007, and (2) “In succeeding regular national or local elections, the AES shall be implemented nationwide” and the 10 May 2010 elections is the “regular national or local elections” succeeding the elections of 14 May  2007.

 

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 around  – to breathe life to the legislative intent even to the extent of ignoring the text.[29] This is because use of language, while a mark of civilization,[30] remains susceptible to error as the Court knows all too well after having reviewed in the past imprecisely drafted legislation.[31] 

To give effect to the legislative intent behind Section 5, as amended, the automated election system under the Contract should be limited to partial automation only, covering at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao, to be chosen by the COMELEC.   Afterwards, with the COMELEC having tested its capabilities and manpower and after learning all the valuable lessons from the initial exercise, the automated system the COMELEC selects for the succeeding elections of 12 May 2013 can be fully deployed nationwide.

 

Procurement Standards Under Section 12,

as Amended, Meant to Assure Efficiency of

System and Proof of System Provider's

Capability, Supplementing Minimum

Standards Under Section 6, as Amended

 

 

         Section 12[32] of RA 8436, as amended by RA 9369, which involves the procurement of equipment and materials for automation, provides another layer of standard of system and system's provider capability for the 10 May 2010 elections, namely:  (1) prior use, here or abroad, of the system and    (2) proof by the system provider of its system's fitness, regardless of its “[p]articipation in the 2007 pilot exercise.”[33] These are mandatory requirements which any provider bidding to automate the 10 May 2010 elections must show the COMELEC before the COMELEC can procure the offered goods and services.

 

         The phrase “[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 bidder's 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 bidder's 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.

 

 

 

RA 9525 Funding the 10 May 2010

Elections did not Repeal Section 5 of

RA 8436, as amended

 

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.

 

The ARMM Elections in 2008

did not Meet the Parameters of

a Limited Initial Use of the AES

in RA 8436, as Amended

 

         The parameters for the initial limited use of an automated election system under Section 5 of RA 8436, as amended, are (1) the AES is used in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao, (2) as selected by the COMELEC.  The automated elections[34] in the ARMM held last 11 August 2008 did not satisfy these parameters because (1) they were held in southern Mindanao only, involving six provinces and two cities,[35] (2) as mandated by law.[36]

 

         In practical terms, this means that the COMELEC, in the 2008 ARMM elections, did not use the tri-level transmission of election results from voter-dense areas from north to south of the archipelago, the transmission scheme to be used in the 10 May 2010 elections.  This fact and the comparatively narrow scope of the 2008 ARMM elections in terms of  voter population (1.6M in the 2008 ARMM elections as against  40M in the 10 May 2009 elections), number of machines provided  by Smartmatic (2,558 DRE machines in the 2008 ARMM elections as against 82,200 precinct-based scanners in the 10 May 2009 elections), and positions involved (26 in the 2008 ARMM elections as against roughly 300 in the 10 May 2010 elections),[37] put into serious doubt the validity of the Provider’s claim  that the 2008 ARMM elections constitute “substantial compliance”  with the mandate for an initial limited use of the automated system under Section 5 of RA 8436, as amended. On the other hand, the initial implementation under Section 5, as amended, because of its dispersed geographic scope, puts to use all the system's components.

 

The Position of the Senate, While

Entitled to Respectful Consideration,

is not Controlling

 

         The Senate's position that the COMELEC is authorized to use an automated election system nationwide in the 10 May 2010 elections, as reflected in its Resolution Nos. 96 and 567, represents its contemporaneous interpretation of Section 5 of RA 8436, as amended. As the upper half of our legislature, the Senate is certainly entitled to construe legislation. By tradition and for comity, this branch of the government has always accorded interpretive attempts by the other branches with respectful consideration.[38] But it is timely to reiterate that in the distribution of powers ordained in the Constitution, the final word on what the law is lies with this branch.[39] 

 

The Stipulations in the Contract Relinquishing

to Smartmatic Control of the “Technical Aspects”

of the Automated Election System Violates Section

26 of RA 8436

 

 

Implementing the mandate in the Constitution for the COMELEC to “[e]nforce and administer all laws and regulations relative to the conduct of an election,”[40] Section 26 of RA 8426 places the automated election system under the COMELEC’s “exclusive control and supervision,”  thus:

 

Supervision and control. - The System shall be under the exclusive supervision and control of the Commission. For this purpose, there is hereby created an information technology department in the Commission to carry out the full administration and implementation of the System.

The Commission shall take immediate steps as may be necessary forthe , installation, administration, storage, and maintenance of equipment and devices, and to promulgate the necessary rules and regulations for the effective implementation of this Act. (Italicization in the original; boldfacing supplied)

 

This power of  “exclusive control and supervision” covers the adoption of measures for the “installation, administration, [and] storage” of the system’s “equipment and devices.” 

 

Juxtaposed with these constitutional and statutory parameters is the sweeping stipulation in the Contract that “Smartmatic x x x shall be in charge of the technical aspects of the counting and canvassing software and hardware, including transmission configuration and system integration.”[41] The extent of Smartmatic's control over the Contract's “technical aspects”  is divulged in the Contract's supporting documents which vest on the Provider the responsibility to:

 

(1) generate and distribute the access keys for the canvassing equipment and 82,200 optical scanners to be used on election day;[42]

(2) deliver the  82,200 optical scanners to their designated precincts and secure them on site;[43] 

(3) prepare the polling places and canvassing centers in all levels (that is, municipal, provincial and national) to make them “fully functional”;[44] and

(4) maintain 100% electronic transmission capability on election day (and thus fill the 25% gap of the country’s current 75% network coverage).[45] 

 

         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 keys ― both the private and public access keys ― is like giving to the system administrator of Yahoo or Hotmail one's 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.

 

         What Section 26 confines to the COMELEC's “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 system’s operation – equipment security and installation and results canvassing and transmission – the COMELEC contented itself with taking charge over the system's “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 26's stringent standard.

 

A vital policy consideration lies behind the blanket mandate of Section 26. Under our constitutional scheme, the COMELEC is the state organ tasked to “[e]nforce and administer all laws and regulations relative to the conduct of an election”[46] and of “ensuring x x x credible elections.”[47] By exercising  exclusive control and supervision over the automated system, the COMELEC can harness its manpower and resources to efficiently prevent or correct fraud. By surrendering to Smartmatic control over the automated system's “technical aspects,” the COMELEC closed the door on manual fraud but opened wide the window to its automated counterpart. As highlighted in the findings of a recent independent study, the threat of internal hacking is all too real:

 

The greater threat to most systems comes not from external hackers, but from insiders who have direct access to the machines.  Software can be modified maliciously before being installed into individual voting machines.  There is no reason to trust insiders in the election industry any more than in other industries, such as gambling,where sophisticated insider fraud has occurred despite extraordinary measures to prevent it.[48] x x x x

 

         Respondents gloss over the import of the offending contractual stipulations, calling attention to the request for bid proposals which gave notice that the COMELEC was accepting bids from “a complete solutions provider x x x which can provide x x x overall nationwide project management service and total customer support under COMELEC supervision and control.”[49] The Provider also limits the application of the second paragraph of Article 3.3 between TIM and Smartmatic.[50] 

 

         A close reading of the RFP shows that the provision by the Provider of “project management service and total customer support”  (paragraph 6, Part II) over which the COMELEC will have supervision and control, corresponds only to Component 3 of the Contract, that is, overall project management. The RFP does not say that the COMELEC exercises supervision and control over the Contract's remaining two components, namely, the paper-based automated-election system (Component 1) and the the provision for electronic transmission using public telecommunications networks  (Component 2).[51] 

         On the Provider's contention that the second paragraph of Article 3.3 regulates the relations between TIM and Smartmatic, suffice it to say that the argument would carry weight if the stipulation was placed in the joint venture agreement. The provision in question was placed in the Contract precisely to hold the Provider “liable for all its obligations under this Project,” as the first sentence of Article 3.3 provides.

 

         Until the COMELEC and the Provider amend the offending stipulations, these stipulations govern the rights and obligations between them. 

 

The Contract Provides for

the Effects of Partial Annulment

 

 

Unlike the disposition in Infotech, a finding that the Contract violates Section 5 and Section 26 of RA 8436, as amended, results only in its partial invalidation under the Contract’s Severability clause.[52]  This leaves COMELEC free to renegotiate with the Provider to scale down scope of the Contract, adjust the contract price, and modify other pertinent stipulations.

 

 

 

 

 

Using the Automated System Nationwide

in the 10 May 2010 Elections

Places our Fragile Democracy

at Needless Risk

 

 

         The COMELEC’s 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, Smartmatic's 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.[53] But we also cannot take chances with our fragile democracy. After all, what these machines count are not the day’s 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 technology’s benefits gingerly.

 

Lost in the headlong rush to switch this country’s 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.[54] This is the surest way to defeat the purpose of the entire electoral exercise, and put at unnecessary risk our hard-earned democracy.

 

Accordingly, I vote to GRANT IN PART the petition by annulling the  provisions of the Contract relating to the nationwide use of automated election system, and instead to DIRECT the COMELEC (1) to implement a partial automation of the 10 May 2010 elections as provided in Section 5 of RA 8436, as amended by RA 9369; (2) to assume full and exclusive control of the access keys to the partial automation system; and (3) to assume control over preparation of the polling places and canvassing centers in all levels to make them fully functional.

 

 

 

 

 

                                                      ANTONIO T. CARPIO

                                                           Associate Justice


[1]Contract for the Provision of An Automated Election System for the May 10, 2010 Synchronized National and Local Elections (“Contract”).  The affected provisions of the Contract are Article 3 (Scope of the Project), Article 4 (Contract Fee and Payment), relevant sub-provisions of Article 5 (Responsibilities of the Provider), relevant sub-provisions of Article 6 (COMELEC’s responsibilities), and relevant sub-provisions Article 7 (Delivery and Acceptance). The affected portions of the Request for Proposal (made integral to the Contract under Article  21) are Component 1-B (Precinct Count Optical Scan),  Component 1-C (Counting/Consolidation System), Component 2 (Provision for Electronic Transmission Using  Public Telecommunication Networks) and Component 3 (Overall Project Management). Under the Contract’s Severability Clause (Article 20), the unaffected provisions  remain valid and the parties may opt to renegotiate the invalidated provisions.

[2]An Act Authorizing The Commission On Elections To Use An Automated Election System  In The  May 11, 1998 National  Or Local Elections And In Subsequent National And Local  Electoral Exercises, Providing Funds Therefor And For Other Purposes.

[3]The Contract, divided into three components (paper-based automated-election system [Component 1], provision for electronic transmission using public telecommunications networks [Component 2], and overall project management [Component 3]), requires the Provider to, among others:

               (1) Develop a data management system (Election Management System), capable of generating audit log and integrating with the COMELEC’s database to create pre-election configuration data (i.e., voting jurisdictions, number of voters per precinct, positions and seats for election, candidates’ information and title and date of elections), generate ballot faces, and configure relevant data for different types of elections (e.g. national and local elections, ARMM elections, plebiscites, initiatives, recall elections, and special elections). The Provider is required to secure the system with authorization and authentication requirements (Component I-A). (Contract, p. 1; Request For Proposal [RFP], pp. 14-15);

   (2) Configure each of the 82,200 precinct optical scanners (80,136 allocated units plus 2,064 contingency units) for use in the city/municipality/councilor district where each scanner will be deployed on election day to scan “ballots intended for the city/municipality/councilor district for which it has been configured.” The Provider’s obligations on the security features for the scanning of ballots at, and transmission of election results from, each of the 80,000 clustered precincts of 1,000 voters per cluster, are as follows: (a) to generate access keys (such as usernames and passwords) with at least two access levels (operator and administrator); (b) to program each scanner to require “the electronic authentication and certification of the election results x x x by at least two [Board of Election Inspector] (BEI) members” before transmission of the results, in encrypted form, from the precinct level (to the municipal board of canvassers, the COMELEC central server, and the server for the political parties, accredited citizens’ arm and the Kapisanan ng mga Brodkaster ng Pilipinas) using “wireless, wired or satellite-based connection or a combination thereof” ensuring that the transmission service must be “available 99% of the time”; and (c) to program each scanner “to generate a backup copy of the digitally signed and encrypted ER in a removable data storage device” (Component I-B). (Contract, p. 1; RFP, pp. 15-16; Bid Bulletin No. 4, 27 April 2009, p. 5; Bid Bulletin No. 6, 27 April 2009, pp. 1, 7);

(3) Develop a consolidation and canvassing system which will tally election results for municipal, provincial and national offices using transmitted data (i.e. for municipal canvassing, using precinct results; for provincial/district canvassing,  using consolidated city/municipal results; for COMELEC canvassing [for senatorial and party-list elections], using consolidated provincial/city results; and for canvassing by Congress [for Presidential and Vice-Presidential elections], using consolidated provincial/city results). To secure the system, the contract requires the Provider to: (a) program the consolidation and canvassing system to “monitor, detect, [and] record x x x intrusion and/or unauthorized access and recognize its authorized users with the use of physical security devices, such as USB flash drives or PMCIA cards, with digital certificates, aside from the use of user IDs and passwords”; (b) program the system to “decrypt and authenticate the transmitted encrypted election results prior to consolidation/canvassing”; and (c) to program the system to allow the Board of Canvassers (BOC) “to digitally sign all electronic results and reports before transmission.” (Component I-C). (Contract, pp. 1, 6; RFP, p. 18);

                (4) Provide overall project management services and staffing (Component 3) (RFP, pp. 23-27);

                (5) Train COMELEC executives (83 to 100), technical personnel (100), field personnel (4,000) and BEI members (160,272) on the systems operations. For the COMELEC technical staff, the training should enable them to “operate the systems on their own.” (RFP, p. 31; Bid Bulletin No. 20, 27 April 2009, pp. 1-2); and

                (6) Provide, one week before and after the elections, at least “one technician for every voting/counting and data transmission centers,” who “must have cellular telephones or other means of real time communication.” (RFP, p. 32).

[4]For the writs of Certiorari, Prohibition and Mandamus.

[5]Jarltech International Corporation (supplier of optical scanners), Dominion Voting Systems (copyright owner of the software for the optical scanners) and ToGo Corporation (hired by the Provider to distribute the optical scanners to their assigned precincts).

[6]464 Phil.173 (2004).

[7]Respondents TIM and Smartmatic invoke Sections 55 and 58 of Republic Act No. 9184 which provide:

     

               Section 55. Protests on Decisions of the BAC.- Decisions of the BAC in all stages of procurement may be protested to the head of the procuring entity and shall be in writing. Decisions of the BAC may be protested by filing a verified position paper and paying a non-refundable protest fee. The amount of the protest fee and the periods during which the protests may be filed and resolved shall be specified in the IRR.

 

 

      Section 58. Report to Regular Courts; Certiorari.- Court action may be resorted to only after the protests contemplated in this Article shall have been completed. Cases that are filed in violation of the process specified in this Article shall be dismissed for lack of jurisdiction. The regional trial court shall have jurisdiction over final decision of the head of the procuring entity. Court actions shall be governed by Rule 65 of the 1997 Rules of Civil Procedure.

      This provision is without prejudice to any law conferring on the Supreme court the sole jurisdiction to issue temporary restraining orders and injunctions relating to Infrastructure Projects of Government.

[8]The first test used 625 ballots each with 32 “pre-determined” marks while the second test used 650 ballots each similarly bearing 32 marks (COMELEC Comment, pp. 30-31). 

[9]The University of the Philippines Computer Center, National Computer Center, and Information Technology Foundation.

[10]Information Technology Foundation of the Philippines.

[11]Memorandum (TIM and Smartmatic), pp. 54-63.

[12]Supra note 6.

[13]Section 2(4) and Section 4 , Article IX(C), Constitution.

[14]The COMELEC awarded the contract to a bidder even before the Bids and Awards Committee submitted its Report on the bidding.

[15]Supra 6at 163. It also appears that the protest mechanism provided in RA 9184, which respondents invoke, applies to losing bidders, not to third parties like petitioners. Section 55.2 of its implementing rules requires the “bidder” to provide relevant contact information in its position paper.

[16] Section 5, as amended, reads in its entirety: “SEC. 6. Section 6 of Republic Act No. 8436 is hereby amended to read as follows:

            SEC. 5 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 or systems in the same election in different provinces, whether paper-based or a direct recording automated 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 election, which shall be held immediately after effectivity of this Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao, to be chosen by the Commission: Provided, further, That local government units whose officials have been the subject of administrative charges within sixteen (16) month prior to the May 14, 2007 election 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 nationwide."

[17] COMELEC Comment, p. 23.

[18]Bersabal v. Salvador, 173 Phil. 379 (1978).

[19] 2 Record of the Senate 50-51 (20 March 2006).

[20]Id. at  67-68 (28 March 2006).

[21] Section 5 of RA 8436 reads in pertinent parts:

Section 5. Authority to use an automated election system. - To carry out the above-stated policy, the Commission on Elections, herein referred to as the 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.

 

                Unlike in RA 9369, Congress in Section 5 of RA 8436 provided a contingency mechanism, that is, for the COMELEC to revert to manual system for “the elections for both national and local positions  x x x except in the Autonomous Region in Muslim Mindanao (ARMM),” if  “inspite 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.”

               Significantly, the original draft for Section 5 in Senate Bill No. 3214, the precursor of RA 8436,  provided for the use of an automated system in “three regions” for the 11 May 1998 elections. However, upon the advice of the COMELEC that it will not be able to comply with this scheme, Senator Miriam Santiago, the bill’s principal author, amended the draft for the first phase to instead cover “17 highly-urbanized cities.” During the bill's Second Reading, Senator Marcelo Fernan submitted a proposal to limit the first phase of automation to selected positions instead of selected areas. The Senate approved his proposal (2 Record of the Senate 986-987, 989-990 [19 November 1997]; id. at 149 [1 December 1997]).

[22]TSN Oral Arguments (Augusto Lagman), 29 July 2009, pp. 528-529.

[23]Section 11 of RA 9369 provides in pertinent parts:

 

SEC. 11. Functions of the Technical Evaluation Committee. - The Committee shall certify, through an established international certification entity to be chosen by the Commission from the recommendations of the Advisory Council, not later than three months before the date of the electoral exercises, categorically stating that the AES, including its hardware and software components, is operating properly, securely, and accurately, in accordance with the provisions of this Act based, among others, on the following documented results:

 

            1. The successful conduct of a field testing process followed by a mock electionevent in one or more cities/municipalities;

[24]RFP, pp. 32-33.

[25]The distinction was elucidated during the floor deliberations of Senate Bill 2231 when Senator Gordon opposed the amendment of Senator Pimentel to substitute the word “use” in Section 5 with “pilot,” thus:

 

Senator Pimentel.  x x x x               I  propose that in lieu of the word “USED”, we substitute the following two words PILOT-TESTED IN AT LEAST TWO (2) HIGHLY URBANIZED CITIES AND TWO (2) PROVINCES IN LUZON:  AT LEAST TWO (2) HIGHLY URBANIZED CITIES AND TWO (2) PROVINCES IN THE VISAYAS: AND AT LEAST TWO (2) HIGHLY URBANIZED CITIES AND TWO (2) PROVINCES IN MINDANAO TO BE DETERMINED BY THE COMELEC.

               Senator Gordon.  I accept the amendment, without the use of the word “PILOT”.  I would insist that we use the word “USED” because it might be misconstrued.  There is already a provision that there would be a mock election in one province or one city in the bill down the line.  Maybe we can go ahead with the word “USED”. (2 Record of the Senate 60 [5 April 2006]; capitalization in the original, boldfacing supplied).

[26]Under the Contract, both the field test and mock election will use 10 optical scanners involving 17 canvassing units (8 city/municipality, 6 provincial, 2 national and 1 central backup) using 3,000 ballots (Bid Bulletin No. 4, 27 April 2009, pp. 6-7). On 10 May 2010, 80,136 optical scanners will be used with 1,234 canvassing units tallying results from approximately 40M ballots.

[27]ITFP Comment, p. 3. ITFP’s observation that based on the laboratory tests results, the optical scanners can scan accurately is not shared by another information technology expert, Prof. Pablo Manalastas, who opined that “under actual election conditions where people may use pencil, ball pen, rolling ball jotter, and felt-tip pen, and using all allowable marking styles (dot, check mark, cross mark, and complete shade), the [optical scanners] will be lucky to achieve an accuracy of 50%.” (see http://newsbreak.com.ph/index.php?option=com_content&task=view&id=6589&Itemid=88889287 [last visited on 14 August 2009]).

[28]Memorandum (TIM and Smartmatic), p. 5. The COMELEC advanced the same view (Memorandum [COMELEC]), pp. 36-37.

[29]City of Baguio  v. Marcos, 136 Phil. 569 (1969); Lopez & Sons, Inc. v. Court of Tax Appeals, 100 Phil. 850 (1957). The same rule applies in interpreting the Constitution (Tañada v. Cuenco, 103 Phil. 1051 [1958]).

[30]Philippine Constitutional Association v. Mathay, 124 Phil. 890, 922 (1966) Castro, J., concurring (referring to language as “one of the distinctive qualities x x x of modern thinking man.”)

[31]See City of Baguio  v. Marcos, supra (involving a textual conflict between the title and Section 1 of Republic Act No. 931 on the reckoning of the prescriptive period to reopen cadastral proceedings) and Lopez & Sons, Inc. v. Court of Tax Appeals, supra note 29 (involving a textual conflict between Section 7 and Section 11 of Republic Act No. 1125 on the review jurisdiction of the Court of Tax Appeals).

[32]The provision reads in its entirety: “SEC. 10. Section 8 of Republic Act No. 8436 is hereby amended to    read as follow:

 

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

 

In determining the amount of any bid from a technology, software or equipment supplier, the cost to the government of its deployment and implementation shall be added to the bid price as integral thereto. The value of any alternative use to which such technology, software or equipment can be put for public use shall not be deducted from the original face value of the said bid.

[33] As pointed out by Justice Teresita J. Leonardo-De Castro in the oral arguments (TSN, 29 July 2009, pp. 499-500).

[34]Using optical mark reader (OMR) and direct recording electronic (DRE) technologies.

[35]Shariff Kabunsuan, Maguindanao, Lanao del Sur, Basilan, Sulu and Tawi-Tawi and the cities of Marawi and Lamitan. Shariff Kabunsuan has since reverted to its mother province, Maguindanao, under the ruling in Sema v. Commission on Elections (G.R. No. 177597, 16 July 2008, 558 SCRA 700) voiding its creation.

[36]Republic Act No. 9333.

[37]Governor, Vice-Governor and 24 legislators (members of the Regional Legislative Assembly). 

[38] Yra v. Abaño, 52 Phil. 381 (1928).

[39] In Tañada v. Cuenco, 103 Phil. 1051 (1958), the Court noted but did not follow the interpretation of the Secretary of Justice of Section 11, Article VI of the 1935 Constitution.

[40] Section 2(1), Article IX(C), Constitution.

[41] Article 3.3 which provides in full:

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

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

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

[42]RFP, p. 15; Bid Bulletin No. 10, 27 April 2009, p. 2. The importance of controlling the access keys was illustrated in the ARMM Regional elections in 2008 when Smartmatic, which the COMELEC contracted to supply some of the equipment used, remotelyaccessed several tabulating machines to recalibrate their software after the machines “zeroed-out” the results due to an error in logging the number of cast ballots. (Manuel A. Alcuaz, Jr., Mapping the Future [Is the Smartmatic-TIM-COMELEC Contract Front-Loaded?], Philippine Daily Inquirer, 20 July 2009, p. B2-2). Commenting on Smartmatic's control over the private and public keys (to be distributed to the BEIs and [Board of Canvassers] personnel), an IT expert noted: “Since Smartmatic has this responsibility [of generating the access keys], it will have possession of all BEIs' private keys, and will give Smartmatic the capability to change the [Election Results] of any precinct in the entire country, resulting in massive computerized cheating in case this capability is exploited by Smartmatic.” (Professor Pablo Manalastas at http://pmana.multiply.com/journal/item/68/Harry_Roque_vs_COMELEC-Smartmatic[last visited on 25 August 2009]).

[43]Bid Bulletin No. 6, 27 April 2009, p. 7; Bid Bulletin No. 10, 27 April 2009, p. 3.

[44]Bid Bulletin No. 19, 27 April 2009, p. 2.

[45]Bid Bulletin No. 6, 27 April 2009, pp. 1-2.

[46]Section 2(1), Article IX(C), Constitution.

[47] See Section 2(4) and Section 4, Article IX(C) of the Constitution authorizing the COMELEC to deputize law enforcement agencies and regulate franchises, respectively, to ensure “free, orderly, honest, peaceful, and credible elections.”

[48]Report of the Commission on Federal Election Reform (September 2005), p. 36, available at http://www.american.edu/ia/cfer/report/full_report.pdf (last visited on 14 August 2009).

[49]RFP, p. 5.

[50]Memorandum (TIM and Smartmatic), p. 100.

[51]The relevant portion of the RFP provides (p. 5):

 

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

(1)               Introduction of a new system of voting to the Filipino electorate nationwide without deviating much from the manual manner of voting and which protects the voter’s right to the secrecy of his vote;

(2)               An automated system of counting of votes which can count the voter’s vote accurately and as intended by the voter, which can secure the precinct results in such a way that it cannot be tampered with or read outside the system, and the results of which can be accepted as input by the existing canvassing application of the COMELEC;

An integrated and comprehensive system for preparing and managing pre-election configuration and post-election requirements;

(3)               A secure, reliable and redundant service for electronic transmission of precinct results from authorized sources to COMELEC-designated target destinations using public telecommunication network, including Internet access from all cities, municipalities and provinces;

(4)               A consolidation/canvassing system that allows consolidation of precinct results, and city/municipal and provincial results; and

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

 

When matched with the Contract's “components,” paragraph 3 corresponds to Component 1 (paper-based automated-election system) while paragraphs 4 and 5 correspond to Component 2 (electronic transmission using public telecommunications networks).

[52] Article 20 of the Contract provides: “If any provision of this Contract is declared illegal, unenforceable or void, the parties shall negotiate in good faith to agree upon a substitute provision that is legal and enforceable and consistent with the intentions of the Project. The rest of this contract that is not materially affected by such declaration shall remain valid, binding and enforceable.” Under Article 1409 of the Civil Code, contracts whose purpose is contrary to law are void.

[53] Indeed, even technologically advanced democracies such as the United States and some countries in Europe continue to experience glitches in the operation of their electronic voting systems. (See F. Emmert, Trouble Counting Votes? Comparing Voting Mechanism in the United  States and Selected Countries,  41 Creighton L. Rev. 3 [2007]).

[54]Under Section 7, Article VII of the Constitution, the Vice-President, Senate President and Speaker of the House succeeds to the Office of the President in case of vacancy, in that order. Congress has yet to pass a law providing “for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified” as required under Section 7.