G.R. No. 188456 — H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. BAGARES, ALLAN JONES F. LARDIZABAL, GILBERT T. ANDRES, IMMACULADA D. GARCIA, ERLINDA T. MERCADO, FRANCISCO A. ALCUAZ, MA. AZUCENA P. MACEDA, ALVIN A. PETERS, suing as taxpayers and as concerned citizens versus COMMISSION ON ELECTIONS, represented by Hon. Chairman Jose Melo, COMELEC SPECIAL BIDS AND AWARDS COMMITTEE,  represented by its Chairman Hon. Ferdinand Rafanan, DEPARTMENT OF BUDGET AND MANAGEMENT, represented by Hon. Rolando Andaya, TOTAL INFORMATION MANAGEMENT, INC. and SMARTMATIC INTERNATIONAL, INC.

 

                                                Promulgated: September 10, 2009

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S E P A R A T E   O P I N I O N

CORONA, J:

A new civilization is emerging in our lives, and blind men everywhere are trying to suppress it. This new civilization brings with it new family styles; changed ways of working, loving, and living; a new economy; new political conflicts; and beyond all this, an altered consciousness as well. Pieces of this new civilization exist today. Millions are already attuning their lives to the rhythms of tomorrow. Others, terrified of the future, are engaged in a desperate, futile flight into the past and are trying to restore the dying world that gave them birth.

 

The dawn of this new civilization is the single most explosive fact of our lifetimes.[1]

 

        The Third Wave of the Philippine electoral system is upon us. The ballot, one of the most significant means through which the people directly participate in governance by periodically choosing their representatives, is evolving from purely paper-based to computer-readable and the elections are progressing from manual to automated. Indeed, the means by which popular sovereignty may be exercised through suffrage is about to change considerably. The tsunami of change in our electoral system encourages us to adopt the words of the renowned futurist Alvin Toffler as our own: “We are the children of the new transformation, the Third Wave.”

 

Back then, there was the papeleta oficial.  It was barely the size of this paper and only one side was written with the titles of seven elective offices. On the space corresponding to each office, a voter wrote the name of the chosen candidate. The voter would then deposit the papeleta in a ballot box and, at the closing of the polls, the votes would be publicly counted and tallied, with a copy of the statement of the results sent by registered mail or special messenger to the provincial treasurer. If heaven cooperated, the election results were known within two months.[2]

 

Through the years, the papeleta evolved into the official ballot, commonly known as the balota. The balota was of uniform size and provided by the Commission on Elections (Comelec). It was printed in black ink on white security paper with distinctive, clear and legible water marks that readily distinguished it from ordinary paper. Each balota was in the shape of a strip with stub and detachable coupon containing the ballot’s serial number and a space for the thumbmark of the voter on the detachable coupon. It contained all the names of all the offices to be voted for in the election, allowing opposite the name of each office sufficient space or spaces with horizontal lines where the voter wrote the name or names of individual candidates voted for by him. The voter, after affixing his thumbmark on the detachable coupon in the presence of the board of election inspectors, deposited his balota and the coupon in the respective compartments of the ballot box.  As soon as the voting was finished, the ballots were counted publicly and the totals of votes recorded in the tally board and election returns. The returns were then submitted to the various boards of canvassers (municipal or city, provincial and national) for canvassing.  The election results were hopefully proclaimed within one week (for local positions) or up to two months (for national positions).

     

In the coming synchronized national and local elections in May 2010, it will be the precinct count optical scan (PCOS) ballot. It will be nearly thrice the size of this paper, with both sides filled with the names of at least 600 candidates and opposite each name will be a spot which the voter can mark to indicate his choice. It will be fed manually into the PCOS which in turn will determine the ballot’s authenticity, tally the votes marked therein and generate digitally signed and encrypted election results to be electronically transmitted to different levels for consolidation and canvass.[3] Hopefully, within two days the election results will be known.

 

The shift from manual elections to an automated election system (AES) has indeed become inevitable. Not just one but four laws have been passed decreeing it: RA[4] 8046[5] in 1995, RA 8436[6] in 1997, RA 9369[7] in 2007 and RA 9525[8] in 2009. 

 

For the 2010 elections, automation is envisaged in RA 8436, as amended by RA 9369. Pursuant to that purpose, respondent Commission on Elections-Special Bids and Awards Committee (Comelec-SBAC) conducted biddings and issued to the joint venture of respondents Smartmatic International Corporation and Total Information Management Corporation (Smartmatic-TIM) a notice of award on June 10, 2009.[9] On July 10, 2009, respondent Comelec and Smartmatic-TIM executed a contract governing the procurement of counting machines, including the supply of ballot paper, electronic transmission services using public telecommunications networks, training, technical support, warehousing, deployment, installation, pull-out, systems integration and overall project management.[10] On the same day, Smartmatic-TIM received a notice to proceed with the implementation of the contract.[11]

 

        Early on, however, petitioners as concerned citizens and taxpayers filed a petition in this Court for certiorari, prohibition and mandamus urging us to annul the June 10, 2009 notice of award and permanently enjoin respondents from signing and/or implementing any contract for the 2010 elections. They also sought to compel all respondents to disclose the full terms and conditions of the relevant agreements between and among themselves, including the agreements among respondent Smartmatic, Dominion Voting Systems (Dominion) and Jartltech International Corporation (Jarltech) and between respondent TIM and 2Go Corporation (2Go), respectively.[12] However, with the execution of the July 10, 2009 contract between Comelec and Smartmatic-TIM, petitioners are now also seeking the annulment of the said contract.[13]

 

        Petitioners argue that the impugned June 10, 2009 notice of award and July 10, 2009 contract violate the following:

 

(a)    Sections 5 and 12 of RA 8436, as amended by RAs 9329 and 9525 on pilot-testing and Section 7 of RA 8436, as amended by RA 9329, on the systems capability of the PCOS machines and[14]

 

(b)    Section 8 of RA 7042[15] in relation to EO[16] 584[17] and Article IX, Part B, Items 2.2.4, 2.2.6.1.2.2, 2.2.6.1.2.3, 2.2.6.1.2.5 and 2.2.6.2.1 of the Request for Proposal (RFP) on the eligibility of  Smartmatic TIM as a bidder.[18]

 

 

They also claim that Articles 3.3, 6.7, 7.4, 21.1 and 21.4 of the impugned contract violate paragraphs 1 and 3, Section 2, Article IX-C of the Constitution and Section 26 of  RA 9369 on the mandate of the Comelec.[19]

 

They further contend that Articles 3.1, 3.2 and 21.1 of the impugned contract incorporating the March 10, 2009 RFP and bid documents issued by the Comelec violate Section 2, Article V of the Constitution on the sanctity and secrecy of the ballot.[20]

 

Petitioners exhort the Court to recognize their locus standi in view of the transcendental importance of the matters raised in their petition.[21] They also pray that their failure to exhaust the administrative remedies provided under the implementing rules of RA 9184 (or the Government Procurement Reform Act) be excused.[22]

 

In view of the great significance of the matters involved in this case in our national life especially at this critical juncture of our history, I am inclined to gloss over the technical deficiencies and focus only on the substantive issues. Nonetheless, after careful study and reflection, I vote to dismiss the instant petition for the reasons I will explain.

 

   

Are the June 10, 2009 Notice of Award and July 10, 2009 Contract Legal?

 

         

        The mandate of the Comelec under RA 8436, as amended, is two-fold: first, to use an AES (automated election system) as provided under Section 1:

 

        Sec. 1. Declaration of Policy. — It is the policy of the State to ensure free, orderly, honest, peaceful, credible and informed elections, plebiscites, referenda, recall and other similar electoral exercises by improving on the election process and adopting systems which shall involve the use of an automated election system that will ensure the secrecy and sanctity of the ballot and all election, consolidation and transmission documents in order that the process shall be transparent and credible and that the results shall be fast, accurate and reflective of the genuine will of the people.

 

            The State recognizes the mandate and authority of the Commission to prescribe the adoption and use of the most suitable technology of demonstrated capability taking into account the situation prevailing in the area and the funds available for the purpose.[23] (emphasis supplied)      

                Such authority to use “an automated election system or systems xxx 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” is reiterated in Section 5 of the law, as amended. 

       

Second, as provided under Section 12 of the same law, as amended, to procure supplies, equipment, materials, software, facilities, and other services for the purpose of implementing an AES.

 

        There are provisions which outline how the Comelec is to carry out its mandate. Section 5 of RA 8436, as amended, provides:

 

                        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 electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises: Provided, that for the regular national and local 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.[24] (emphasis supplied)

   

 

Moreover, Section 12 of RA 8436, as amended, states:

 

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. x x x[25] (emphasis supplied)

 

 

Citing the proceedings of the Senate on Senate Bill No. 2231 (from which RA 9329 originated),[26] petitioners posit that Sections 5 and 12 of RA 8436, as amended, impose the restriction that no AES can be implemented in the 2010 elections unless the said AES shall have been pilot-tested in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao during the 2007 elections.[27] Petitioners claim that the impugned notice of award and contract contravene Sections 5 and 12 of RA 8436, as amended, because they authorize the use of PCOS machines that have never undergone pilot-testing.

 

        The view of petitioners is, however, at odds with the plain language of the law and the proceedings of the Senate.

 

        The aforecited provisions do not limit or restrict the statutory mandate of the Comelec to implement a nationwide AES beginning the 2010 elections. The provisos of Section 5 merely prescribe the minimum scope of, as well as the conditions for, the implementation of an AES by the Comelec in the 2007 elections. On the other hand, Section 12 simply regulates the capability of the supplies, equipment, materials, software, facilities and other services which the Comelec can procure. Neither provision, however, removes or constrains the mandate of the Comelec to implement an AES nationwide beginning the 2010 elections.

        A review of the evolution of Section 5 of RA 8436, as amended, will shed light on the matter.

Prior to its amendment by RA 9369, Section 5 was numbered Section 6 of RA 8436. It provided that “for the May 11, 1998 elections” the Comelec could use an AES which “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.”[28] If by February 9, 1998 it would have become evident that the AES could not be implemented for national positions in the 1998 elections, the provision stated that elections for both national and local positions would be done manually except in the Autonomous Region in Muslim Mindanao where the automated election system would be used for all positions. The then Section 6 of RA 8436, therefore, contained the specific limitation or restriction that, while the Comelec may implement an AES nationwide in the 1998 elections, it could do so only for certain national positions. However, it did not provide that if no AES would have been implemented in the 1998 elections, the Comelec would forfeit its mandate to implement an AES nationwide in the succeeding elections.

 

        As amended and renumbered by RA 9369, (the former Section 6) Section 5 of RA 8436 contains a proviso which provides that “for the regular national and local election, which shall be held immediately after effectivity of this Act,” the Comelec shall implement an AES “in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao.” The preceding clause is significant in two aspects.

First, it refers solely to the May 14, 2007 synchronized national and local elections because the 2007 elections were the only regular and local elections held immediately after the effectivity of RA 9369.  It was held on February 10, 2007.[29]

Second, by ordinary definition, the phrase “at least” sets a minimum[30] scope but does not bar attempts or efforts to exceed or surpass it. The clause in Section 5 deliberately employs the phrase “at least” rather than “not more than” or the word “only” (as in the original text of Section 5). As qualified, the clause means that, in the 2007 elections the Comelec had the discretion to implement an AES within the minimum scope of “two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao,” or within the maximum scope of all areas in the country. It did not proscribe the nationwide implementation of an AES in the 2007 elections. Nor does it forbid one in the 2010 and succeeding elections.

In sum, the aforementioned proviso of Section 5 of RA 8436, as amended, merely delineates the minimum scope of implementation of the AES for the 2007 elections.

 

More significantly, in the event that no AES was implemented in the 2007 elections, Section 5 does not prohibit the Comelec from implementing an AES nationwide starting in the 2010 elections. Rather, the last clause of Section 5 is categorical that “in succeeding regular national or local elections, an AES shall be implemented nationwide.” And the 2010 elections were the elections that immediately followed the 2007 elections, the regular elections “held immediately after effectivity of [RA 9369].” In other words, the directive of the law itself is clear: the nationwide implementation of the AES commences in the 2010 elections.

Laws are to be interpreted in a way that will render them effective, not in a manner that will make them inoperative. To insist, as petitioners do, that no nationwide AES can be implemented in the 2010 elections because no AES was implemented in the 2007 elections is to disregard the categorical language of the law. It frustrates and defeats the legislative intent to fully automate the 2010 elections. Indeed, if petitioners’ argument were to be pursued to its (not-so-) logical conclusion, RA 8436, as amended by RA 9369, would be a dead law. Under petitioners’ theory, no AES can be implemented in any future election unless Congress enacts another law. This is so because, according to petitioners themselves, the “condition precedent” for any nationwide implementation of the AES – the implementation of the AES in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao in the 2007 elections – was not complied with.

Moreover, considering that RA 9369 took effect only on February 10, 2007, it was almost impossible to utilize an AES even in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao during the May 14, 2007 elections. Considering that, from the effectivity date of RA 9369, there was only a little over three months left before the 2007 elections, the additional burden (on the preparations for the 2007 elections) of the procurement process for and implementation of even a partial AES of the said elections would have been a superhuman task. More significantly, the 2007 appropriations for the Comelec did not include a budget for AES. The convergence of time and funding constraints made the implementation of any AES in the 2007 elections impossible for the Comelec to conduct. Nemo tenetur ad impossibile.[31] The law obliges no one to perform an impossibility. Laws and rules must be interpreted in a way that they are in accordance with logic, common sense, reason and practicality.[32]

        Furthermore, Section 12 of RA 8436, as amended, relevantly states that “[p]articipation in the 2007 pilot exercise shall not be conclusive of the system’s fitness.” This has a two-fold implication on petitioners’ position. One, since participation in the intended automation of the 2007 elections was not a conclusive determinant of the system’s fitness, partial automation of the 2007 elections pursuant to the proviso of Section 5 (assuming it was a condition for the full/nationwide automation of elections starting 2010) was merely preferable, not indispensable. Two, the fact that the PCOS machines were not pilot-tested in the 2007 elections has no significant bearing on the fitness and suitability of those machines for the elections to be held subsequent to the 2007 polls.

        The Senate proceedings invoked by petitioners do not at all indicate that partial implementation of the AES in the 2007 elections is a condition sine qua non to its full implementation in the 2010 elections. A close reading of the transcript of the proceedings reveals that, in urging his colleagues to approve the proviso in Section 5 (that AES be implemented in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao), Sen. Richard Gordon, the principal sponsor of Senate Bill No. 2231, was merely underscoring the need to demonstrate the possibility and viability of poll automation even in the 2007 elections.[33] Nowhere in the transcript cited by petitioners did the Senate proscribe the nationwide implementation of the AES beginning the 2010 elections if no partial AES was implemented in the 2007 elections.

        In addition to the clarity of the language of RA 8436, as amended by RA 9369, as well as the legislative intent to have the nationwide implementation of the AES starting the 2010 elections, the intent of the lawmakers can furthermore be seen from the passage of RA 9525 on March 23, 2009. With this law, an P11,301,790,000 supplemental appropriations was specifically made for the automation of the 2010 elections. When Congress passed RA 9525, it was well aware that there was no pilot-testing of the PCOS in any previous Philippine electoral exercise. Nonetheless, Section 2 of the law states that the sum should be disbursed to ensure the “transparency and accuracy in the selection of the relevant technology of the machines to be used on May 10, 2010 automated national and local election[s].”

 

        In fine, under Section 5 in relation to Section 1 of RA 8436, as amended, the mandate of the Comelec to prescribe the adoption and use of an AES is complete. It can determine which suitable technology of demonstrated capability to adopt for an AES.   It can determine which, between a paper-based or a direct recording electronic election system, is more appropriate and practical. More notably, in the 2007 elections, it could decide whether to implement an AES within a maximum scope of all areas in the country or within the minimum scope of two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao.  And in the 2010 and succeeding elections, its unqualified mandate is to implement an AES nationwide.

 

Therefore, when it issued the notice of award to and executed the contract with Smartmatic-TIM for the nationwide implementation of an AES in the 2010 elections, the Comelec acted pursuant to its mandate and did not violate Section 5 of RA 8436 as amended by RA 9369.

 

        Neither did the Comelec violate Section 12 of RA 8436, as amended. The provision merely requires that, to implement a nationwide AES starting from the 2010 elections, the Comelec must procure a system that has a demonstrated capability and has been successfully used in a prior electoral exercise here or abroad, though application of the system in the 2007 elections would not have been conclusive evidence of its fitness. Clearly, it is not imperative that the system was successfully applied in the 2007 elections; it suffices that the system can be shown to have been viable in an election abroad. As the Comelec averred, the system it procured for the 2010 elections was successfully employed in prior electoral exercises in New Brunswick and New York in 2008 and in Ontario in 2009.[34]

 

 

Did the June 10, 2009 Notice of Award and the July 10, 2009 Contract Comply With Requirements on Bidding Eligibility?

 

        Petitioners impugn the notice of award and contract in favor of Smartmatic TIM on the ground that the latter violated the RFP when it failed to submit a valid joint venture agreement (JVA), a copy of its single largest contract for the last three years, an ISO 9001 certificate and an environmental protection agency certification.

 

        Petitioners are wrong.

 

 

 

Validity of the JVA

 

 

        Under RA 9184,[35] to be eligible to bid for a project involving the procurement of goods, a joint venture must submit a valid JVA[36] which must be duly notarized and under oath.[37] It is further required by Section 8 of RA 7042 in relation to EO 584 that Filipino ownership or interest in the joint venture be at least 60%.[38] 

 

            The foregoing requirements were reiterated under Items 2.2.4 and 2.2.6.2.1 of the RFP.

       

        On April 23, 2009 Smartmatic and TIM constituted themselves into an unincorporated joint venture under a JVA.  They submitted their JVA to the Comelec on May 4, 2009[39]   and on  July 8, 2009, they caused the incorporation of their joint venture with the Securities and Exchange Commission (SEC).[40]

 

        Petitioners contend that Smartmatic-TIM failed to seasonably comply with the eligibility requirements of the law because they were still unincorporated at the time they filed their JVA in the Comelec. Their lack of community of interest surfaced in late June 2009 when the two entities publicly bickered over their rights and obligations. Moreover, petitioners claim that the JVA is defective because it left out key parties to the automation project, namely, Jarltech from which Smartmatic will procure the PCOS machines, Dominion which owns the copyright to the software for the PCOS machines and 2Go which will be responsible for transporting/distributing PCOS machines throughout the country. Petitioners insist that the inclusion of Jarltech, Dominion and 2Go in the joint venture is indispensable to hold them solidarily liable with Smartmatic-TIM for any problem that may arise from the use of their automation system.[41] 

 

        Petitioners exaggerate the eligibility requirements of the law.

 

        RA 9184 and its implementing rules only require that the JVA be valid and notarized. Incorporation of a JVA under the Corporation Code through registration with the SEC is not essential for the validity of a JVA. So long as it meets the essential requisites of a contract[42] and is embodied in a public document, a JVA is valid regardless of its incorporation through registration with the SEC. Where the law makes no distinction, no distinction need be made.

 

Since the validity of the JVA is separate and distinct from its incorporation, I cannot subscribe to petitioners’ position that the incorporation of the Smartmatic and TIM JVA must also be required for purposes of the bidding.  To hold that the JVA ought to be accompanied by articles of incorporation is to unduly add to the requirement of the law and its implementing regulations, in the guise of interpretation or construction.

 

        Even without an accompanying incorporation paper, a JVA is considered valid if notarized and under oath. As explained by the Government Procurement Policy Board (GPPB):[43]

 

For purposes of conducting eligibility on the prospective bidders for the procurement of goods and infrastructure projects, Section 23.6 (2) of the IRR-A of R.A. 9184 requires the prospective bidders to submit the following Class “B” Documents:

 

(a)       Valid joint venture agreement, in case of a joint venture; and

 

(b)       Letter authorizing the BAC or its duly authorized representative/s to verify any or all of the documents submitted for the eligibility check.

 

As regards the requirement of a “valid joint venture agreement” for JV bidders, the IRR-A of R.A. 9184 does not prescribe a standard form nor does it spell out the specific terms and conditions that should be included in such agreement to be valid. However, for purposes of eligibility check, all JVAs are required to be notarized in order to be considered valid as prescribed in the aforequoted section. Further, it is advised that the JVAs should specifically state the name of the person who is appointed as the lawful attorney-in-fact of the JV to sign the contract, if awarded, and the member who is the lead representative of the concerned JV.[44] (emphasis added)

 

 

                It would likewise be an unreasonable imposition not only on Smartmatic-TIM to absorb into their joint venture each and every entity they do business with, but also on the Comelec to transact directly with all these other entities. Aware of this, the Comelec’s Instruction to Bidders allowed the bidders to subcontract portions of the goods or services under the automation project.[45]       

       

RA 9184 provides under Article XVI for direct contracting as one of the alternative methods of procurement. Direct contracting or single source procurement does not require elaborate bidding because all the supplier needs to do is submit a price quotation, which offer may then be accepted immediately, but only under the following conditions: (a) when the goods may be obtained only from the proprietary source because patents, trade secrets and copyrights prohibit others from manufacturing the same item; (b) when procurement of critical components from a specific manufacturer, supplier or distributor is a condition precedent to hold a contractor to guarantee its project performance and (c) those sold by an exclusive dealer or manufacturer, which does not have a sub-dealer selling. Clearly then, the intention of RA 9184 is not to compel government agencies to deal with every copyright-holder, exclusive manufacturer and exclusive distributor; otherwise, it will restrict the mode of procurement to direct contracting only. Thus, there is no compulsion under the law for the Comelec to contract with Dominion as the holder of the copyright to the PCOS machine or with Jarltech as the manufacturer thereof or 2Go as the transporter/distributor of the PCOS machines. What is crucial is that Smartmatic-TIM assumes solidary liability for the principal prestation of the July 10, 2009 contract and the RFP, and that it stipulates (under Article 3.3 of the contract) that “the performance of portions thereof by other persons or entities not parties to this Contract shall not relieve [it] of said obligations and concomitant liabilities.”

 

 

Compliance with the Nationality Requirement

 

 

        Regarding the ownership requirement under RA 7042 and the RFP, the JVA and articles of incorporation of Smartmatic-TIM categorically state that 60% of the shares of the joint venture shall be held by TIM itself or its subsidiary while 40% shall be held by Smartmatic itself or its subsidiary, but each shall be jointly and severally liable to the Comelec for the obligations of the other under the RFP.[46]

 

        However, notwithstanding the clarity of the provisions of the JVA and the articles of incorporation, petitioners argue that the 60-40% control of the joint venture by TIM and Smartmatic, respectively, is merely on paper and that, in reality, Smartmatic has control equal to or greater than TIM.  According to petitioners, Smartmatic’s nominated director can determine the quorum in the board of directors and the executive committee, and approve or veto the acts of the board or executive committee. Smartmatic alone can nominate the chairman of the board, the treasurer and the corporate secretary.[47]

       

        But then, it is not the management but the ownership of the joint venture Smartmatic-TIM which is required to be at least 60% Filipino. The board of directors of a corporation is a creation of the stockholders and, as such, the board controls and directs the affairs of the corporation by delegation of the stockholders.[48] Hence, the authority to be exercised by the board of directors of the joint venture of Smartmatic-TIM is actually the authority of the stockholders of TIM and Smartmatic from which the joint venture derives its authority. As the source of the authority, the stockholders may by auto-limitation impose restraints or restrictions on their own powers such as that allegedly done by TIM in its joint venture with Smartmatic. Besides, issues on the distribution of management powers in the joint venture are a purely business prerogative in which the Court would rather not meddle.[49]

 

Submission of Required Documents

 

 

        With regard to petitioners’ claim that Smartmatic-TIM failed to comply with the requirement under the RFP for the joint venture to submit the following technical documents: (1) a statement of the value of its largest single contract for the last three years;[50] (2)       ISO 9000 certificate or its equivalent[51] and (3) certification from the environment protection agency of the country of origin of the product,[52] the Comelec-SBAC noted in its memorandum dated June 3, 2009 that, while Smartmatic-TIM failed to show a copy of its single largest contract (because of its non-disclosure agreement with the election body of Venezuela), Smartmatic-TIM submitted “a duly authenticated certification from the Consejo Nacional Electoral (CNE) of the Venezuelan government  x x x indicating the amount of the contract as [$141,356,604.54], (equivalent to Php6,345,502,017.90) which was well above the eligibility requirement of at least 50% of the Approved Budget for the Contract (ABC) of Php5,611,809,200.50.” The certification further indicates “the name of the vendor Smartmatic Group, the name of procuring entity CNE, the period of the contract — between 01 June 2008 to 28 February 2009 and the description of goods and services provided — to provide voting machines and supplies for the elections in the Bolivarian Republic of Venezuela.”[53] Thus, the Comelec-SBAC recommended that this certification be admitted under Section 19, Rule 132 of the Rules of Court as it was issued by a government of another country and duly authenticated by the officials of the Philippine embassy.[54] The Comelec-SBAC’s recommendation was approved by the Comelec en banc in Resolution No. 8608 dated June 9, 2009.[55]

 

There is no cogent reason to overturn the resolution of the Comelec en banc approving the recommendation of the Comelec-SBAC on this matter. It should be borne in mind that, as expressly stated in Section 23.11.1.1, Rule VIII of the implementing rules of RA 9184, the purpose of the requirement is to establish the track record of the prospective bidder of having completed within the last three years a single contract similar to the contract to be bidded out.  This purpose was served when CNE certified that Smartmatic had implemented in Venezuela a $141 Million project similar to the one it was bidding for. With such authenticated information made available to it, the Comelec correctly dispensed with a copy of the contract itself.

 

        The Comelec also did not err in accepting the ISO 9000 and EPA certifications submitted by Smartmatic-TIM. Though not required under RA 9184, ISO 9000 and EPA certificates are required under the RFP. An ISO certificate is intended to assure the Comelec “that the manufacturing process of the solution provider complies with international standards.”[56]  This purpose is nevertheless still achieved if the PCOS machines are produced by a facility that has an ISO 9000 certification.[57] It is of record that the PCOS machines to be procured by the Comelec are manufactured for Smartmatic by its subsidiary Jarltech. Thus, the ISO certification of Jarltech provides sufficient assurance that the PCOS machines are manufactured according to international standards.

       

        The same principle applies to the EPA certificate. Its purpose is to establish that the product to be procured meets the environmental standards of the country of origin.[58] The EPA certificate submitted by Smartmatic-TIM serves that purpose even though it is in the name of Kenmec Mechanical Engineering Company (Kenmec). As found by the Comelec-SBAC, Kenmec has an outsourcing manufacturing contract with Jarltech under which Kenmec will provide a space within its facility where Smartmatic, through Jarltech, will assemble and manufacture the PCOS machines.[59] It is logical for the EPA certificate to be issued to Kenmec’s facility.

 

        In sum, Smartmatic-TIM substantially complied with the technical requirements for eligibility. Accordingly, no bidding requirement under the law and the RFP was violated by the notice of award and the contract issued to Smartmatic-TIM.

 

 

Does the July 10, 2009 Contract Diminish the COMELEC’s Constitutional Mandate?

 

 

        The Constitution appointed the Comelec as the sole authority to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall,[60] and to decide all questions affecting elections, except those involving the right to vote,.[61]

 

        Petitioners deplore what they claim to be a denigration of the mandate of the Comelec through the following provisions in its contract with Smartmatic-TIM:

 

3.3       The PROVIDER[62] 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 SMARMATIC at all times the support required to perform the above responsibilities.

x x x          x x x          x x x

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

x x x          x x x          x x x

7.4       Upon delivery of the Goods, in whole or in part, to the warehouses as approved by COMELEC, the equipment shall be under the custody, responsibility and control of the PROVIDER.

x x x          x x x          x x x

 

 

        According to petitioners, the mandate of the Comelec is seriously undermined by these provisions. Article 3.3 of the contract authorizes Smartmatic to supervise and control the technical aspect of the AES, whereas under Section 26 of RA 8436, it is the Comelec information technology department (Comelec-ITD) which should be given such control. On the other hand, Articles 6.7 and 7.4 of the contract assign to Smartmatic-TIM portions of the electoral responsibilities of the Comelec, whereas the Constitution mandates the authority of the Comelec to be exclusive.

        Moreover, by virtue of Articles 21.1 and 21.4 of the contract, bid document no. 10 is deemed part thereof.  According to the bid document, it is Smartmatic-TIM which shall generate the digital signature and assign the same to all the members of the board of inspectors, the board of canvassers, the Comelec, the Senate President and the House Speaker. To petitioners’ mind, since Smartmatic-TIM has custody of the digital signature, it has virtual control of the election result as it is the digital signature which authenticates the election returns for the canvassing of votes.[63]

        Petitioners’ fears are unfounded.

            We expect that, with the advent of electronic voting, procurement contracts will be accompanied by concerns about their tendency to obscure traditional lines of responsibility. Nonetheless, well-designed and carefully-crafted contracts will represent neither an abdication of the Comelec’s mandate nor a restraint on the Comelec’s oversight powers, but rather a valid reconfiguration much needed in election administration.

 

        The Comelec took pains to draft a contract that preserves its constitutional and statutory responsibilities and at the same time meets the novel contingencies resulting from the automation of elections.

 

        For the 2010 automated elections, the Comelec exercises not only exclusive supervision and control of the electoral process,[64] including the discretion over which suitable technology to adopt and use.[65]         Article 6.7 of the contract reiterates the authority of the Comelec over the purely electoral component of the process, thus:

 

6.7       Subject to the provisions of the General Instructions to be issued by the Commission En Banc, the entire processes of voting, counting, transmission, consolidation and canvassing of votes shall be conducted by Comelec's personnel and officials x x x.

 

 

        With respect to the technical component of the Comelec’s authority in the automation of elections, several specialized units have been created under RA 8436 and RA 9369 to support the Commission: (1) an Information Technology Department tasked to carry out the full administration and implementation of the AES;[66] (2) an Advisory Council on Information and Communication and Technology,[67] headed by the Chairman of the Commission, tasked to recommend the technology to be applied in the AES and to advise and assist in the review of its system’s planning, inception, development, testing, operationalization and evaluation stages and in the identification, assessment and resolution of systems problems or inadequacies,[68] and (3) a Technical Evaluation Committee tasked to certify that, based on documented evaluation, the hardware and software components of the chosen AES are operating properly, securely, and accurately, in accordance with the provisions of RA 9369.[69]

 

        Moreover, under the contract, the Comelec committed to create a project management office (PMO) that will oversee the execution and implementation of the automation project.[70]

       

        Thus, both under the law and the contract, it is clear that each of the foregoing units of the Comelec is assigned specific technical functions in support of the AES.

 

        On the other hand, Smartmatic is given a specific and limited technical task to assist the Comelec in implementing the AES. The highly specialized language of the contract circumscribes the role of Smartmatic.

 

        For instance, while, under Article 6.7, the counting and canvassing of votes are the responsibilities of the Comelec, under Article 3.3, the technical aspects of the “counting and canvassing software and hardware, including transmission configuration and system integration,” and the “[prevention] and troubleshooting [of] technical problems that may arise during the election” are the responsibilities of Smartmatic. The delineation of roles is clear and the tasks assigned to Smartmatic are specific. By no stretch of interpretation can Article 3.3 be deemed to mean that Smartmatic shall count and canvass the votes.

 

        Still under Article 6.7, it is the Comelec through its personnel and officials that shall conduct the entire processes of voting, counting, transmission, consolidation and canvassing of votes. The Comelec, jointly with Smartmatic, will ensure that the performance, completion and final results of these processes meet the stipulated specifications and schedules. This a reasonable assignment of role to Smartmatic, considering that, under Articles 3.1.a, 3.1.b and 3.2 of the contract, Smartmatic-TIM undertakes to ensure the proper, satisfactory and timely execution and completion of the entire scope of the project.[71] There is no reason to view it as a diminution of the exclusive mandate of the Comelec to control the conduct of the elections.

       

It has likewise not been established that, under Article 7.4 of the contract, the Comelec abnegated its mandate. It must be borne in mind that the contract entered into by the Comelec is a mere lease with option to purchase. Hence, it will be grossly disadvantageous to the Comelec if, upon delivery of the goods by Smartmatic-TIM, custody thereof will be immediately transferred to it, for then liability for damage to or loss of the goods while in storage will be borne by it. It is bad enough that Filipino taxpayers are footing the bill for the continued storage of machines in the scrapped Mega Pacific consortium automation deal. It will be worse if they should likewise be answerable for any PCOS machine that is damaged or lost during storage.

 

 

Are the Sanctity of the Ballot and the Integrity of the Automated Electoral Process Compromised By the July 10, 2009 Contract?

 

 

        The more serious argument raised by petitioners has to do with the sanctity of the ballot and the integrity of the AES.

 

        Petitioners argue that the constitutional right of the people to the secrecy and sanctity of their ballot is compromised by the requirement under the contract and the RFP that the ballot be approximately three-feet long and pre-printed with the names of at least 600 candidates and that it be manually fed into the PCOS machine with the assistance of a Smartmatic-TIM employee, when needed.[72]

 

        Under Section 2, Article V of the Constitution, it is Congress which is primarily tasked with the duty to provide a system of securing the secrecy and sanctity of the ballot. In fulfillment of its duty, Congress adopted the following provisions in RA 9369, to wit:

 

Sec. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows:

"Sec.15. Official Ballot. — The Commission shall prescribe the format of the electronic display and/or the size and form of the official ballot, which shall contain the titles of the position to be filled and/or the proposition to be voted upon in an initiative, referendum or plebiscite. Where practicable, electronic displays must be constructed to present the names of all candidates for the same position in the same page or screen, otherwise, the electronic displays must be constructed to present the entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot options on all pages before completing his or her vote and to allow the voter to review and change all ballot choices prior to completing and casting his or her ballot. Under each position to be filled, the names of candidates shall be arranged alphabetically by surname and uniformly indicated using the same type size. The maiden or married name shall be listed in the official ballot, as preferred by the female candidate. Under each proposition to be vote upon, the choices should be uniformly indicated using the same font and size.

x x x          x x x          x x x

Sec. 18. Procedure in voting. — The Commission shall prescribe the manner and procedure of voting, which can be easily understood and followed by the voters, taking into consideration, among other things, the secrecy of the voting.

 

 

        While delegating to the Comelec the determination of the   size and form of the ballot, Congress prescribed the following minimum requirements of its content: (1) that it shall contain the titles of the position to be filled and/or the proposition to be voted upon in an initiative, referendum or plebiscite; (2) that  under each position to be filled, the names of candidates shall be arranged alphabetically by surname and uniformly indicated using the same type size and (3) that the voter must see all of the ballot options on all pages before completing his or her vote and to allow the voter to review and change all ballot choices prior to completing and casting his or her ballot.

 

        In effect, the basic contents of the ballot as required by Congress dictate the size and form of the ballot that the Comelec shall prescribe. For as long as the requirements are met, the system of secrecy and sanctity of the ballot adopted by Congress under RA 9369 is deemed observed by the Comelec.

 

        There is no showing that the size and form of the PCOS ballot as prescribed by the Comelec do not fulfill the minimum contents required by Congress. In fact, the three-foot, two-page ballot filled with 600 entries in font 10 was deliberately adopted by the Comelec to conform to the requirements of existing laws on the number of elective positions, and in anticipation of the possible number of candidates vying for these positions.

 

        Moreover, there is no inherent flaw in the voting procedure adopted by the Comelec whereby each voter must manually feed the ballot into the PCOS machine. There are sufficient safeguards to the secrecy of the voting process in that the voter alone will hold the ballot and feed it to the PCOS machine. It is all up to the voter whether to discard caution and disclose the contents of the ballot. The law can only do so much in protecting its sanctity. Besides, assuming that the requirement under the contract between the Comelec and Smartmatic-TIM as to the size of the ballot poses concerns in connection with the secrecy of the ballot, the Comelec is not without power to issue the necessary rules and regulations that will effectively address them. Such rules and regulations may include the specific manner on how assistance on feeding the ballot to a PCOS machine may be rendered to a voter to avoid compromising the secrecy of the ballot.

 

        Finally, petitioners are alarmed that the digital signature, security keys, source code and removable memory card are at the disposal of Smarmatic-TIM. They argue that all this puts Smartmatic-TIM in control not only of the process but also the outcome of the election.[73]

 

        There are highly technical, specialized interstitial matters that Congress does not decide itself but delegates to specialized agencies to decide.[74] In RA 9369, Congress delegated to not just one but four specialized bodies the duty to ensure that the AES to be adopted for the 2010 elections will be the most appropriate and secure. These are the Comelec itself, the Comelec-ITD, the Advisory Council and the Technical Evaluation Committee. I am not prepared to say that we should doubt their ability and their dedication to ensure compliance with the minimum capabilities and features of the AES, as prescribed under Sections 6 and 7 of RA 9369.

        It is significant that among the functions of the Advisory Council is to “provide advice and/or assistance in the identification, assessment and resolution of systems problems or inadequacies as may surface or resurface in the course of the bidding, acquisition, testing, operationalization, re-use, storage or disposition of the AES equipment and/or resources as the case may be.”[75]  Furthermore, the Technical Evaluation Committee is assigned these functions:

 

        Sec. 9. New sections 8, 9, 10 and 11 are hereby provided to read as follows:

 

            “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 election event in one or more cities/municipalities;

 

2. The successful completion of audit on the accuracy, functionally and security controls of the AES software;

 

3. The successful completion of a source code review;

 

4. A certification that the source code is kept in escrow with the Bangko Sentral ng Pilipinas;

 

5. A certification that the source code reviewed is one and the same as that used by the equipment; and

 

6. The development, provisioning, and operationalization of a continuity plan to cover risks to the AES at all points in the process such that a failure of elections, whether at voting, counting or consolidation, may be avoided. (emphasis added)

 

        It has not been satisfactorily shown that the Advisory Council and the Technical Evaluation Committee have shirked their duties.  They have not even been given the chance to perform them yet they are already being torpedoed. At this point, the Court should not even attempt to interfere in the work of these specialized bodies and arrogate their functions by deciding highly technical issues that are within their expertise and knowledge, and which the law itself has assigned to them for determination. The Court has to exercise judicial restraint and not pretend to be an expert in something it is not really familiar with. Our function is merely to decide if automation and its implementing contract(s) are legal or not.  It is not to find fault in it and certainly, not to determine to what extent the law should be or should not be implemented. After a half century of electoral debacle, there looms in the horizon the dawn of a truly honest, systematic and modern electoral system. But we have to cast our fears and insecurities aside, and take the first step –– unsure as it may be –– to witness its coming.

 

        Fifteen years ago, the government launched the first on-line lottery (“lotto”) system in the country.  Back then, brickbats flew thick and fast –– that it was nothing but a government racket on a grand scale, that it had a built-in capability to cheat people of their hard-earned money, that government was abdicating a big part of its finances to the Malaysians, that its computers were going to be used to cheat in the elections and a slew of pseudo-intellectual arguments ad nauseam.  But what has lotto become today?  It has become one of the most successful government projects ever, heralded as one of the better lottery systems in any developing country. Practically the entire nation has been “wired together” under one efficient computer system. It has brought in billions to the government coffers and has helped millions of poor beneficiaries of the Philippine Charity Sweepstakes Office.  What could have come out of it if the correct first step had never been boldly taken?

 

 

 

 

A Final Word

 

We are the final generation of an old civilization and the first generation of a new one. Much of our personal confusion, anguish and disorientation can be traced directly to the conflict within us and within our political institutions, between the dying Second Wave civilization and the emergent Third Wave civilization that is thundering in to take its place.  Toffler’s words fittingly describe the state of our electoral system.

 

Congress has vested the Comelec with the authority to modernize the Philippine electoral system through the adoption of an AES. In the exercise of the said authority and considering the nature of the office of the Comelec as an independent constitutional body specifically tasked to enforce and administer all laws relative to the conduct of elections, the Comelec enjoys wide latitude in carrying out its mandate. No worst-case scenarios painted by doomsayers, no speculative political catastrophe should be the basis of invalidating the Comelec’s official acts. Only when the exercise by the Comelec of its discretion is done with grave abuse will this Court nullify the challenged discretionary act. Otherwise, the institutional independence of the Comelec will be unduly restricted and eroded, and its constitutional and statutory prerogatives encroached upon. This Court should not allow that in any situation.  This Court should not allow that in this case.

 

Let us welcome the significant change in our electoral system that is the automated election system. The future is upon us. It beckons as it poses the challenge of spurring technological innovation and safeguarding values like accuracy and transparency in our electoral system.  Let us not turn our backs on it simply out of speculation and fear.  Let us give it a chance.

 

I vote to DISMISS the petition.   

 

 

 

                                RENATO C. CORONA

                                              Associate Justice


[1]               Alvin Toffler, The Third Wave.

[2]               See Chapter 18, Revised Administrative Code of the Philippine Islands of 1917. See also Act No. 1582, effective January 15, 1907.

[3]               Request for Proposals (RFP) issued by the Commission on Elections for the 2010 elections                   automation project.

[4]               Republic Act.

[5]               An act authorizing the Commission on Elections to conduct a nationwide demonstration of a computerized election system and pilot-test it in the March 1996 elections in the Autonomous Region in Muslim Mindanao (ARMM) and for other purposes.

[6]               An act authorizing the Commission on Elections to use and 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.

[7]               An act amending Republic Act No. 8436.

[8]               An act appropriating the sum of eleven billion three hundred one million seven hundred ninety thousand pesos (P11,301,790,000.00) as supplemental appropriation for an automated election system and for other purposes.

[9]               Annex “A”, Petition.

[10]                    Annex “13”, Comment.

[11]             www.comelec.gov.ph/modernization/2010

[12]             Petition, pp. 46-47.

[13]             Manifestation and Memorandum for Petitioner, pp. 107-108.

[14]             Petition, pp. 28-31; Manifestation and Memorandum for Petitioners, pp. 53-80.

[15]             Foreign Investments Act of 1991.

[16]             Executive Order.

[17]             Seventh Regular Foreign Investment Negative List dated December 8, 2006.

[18]             Petition, pp. 32-40; Manifestation and Memorandum for Petitioners, pp. 81-93.

[19]             Manifestation and Memorandum for Petitioners, pp. 17-29, 49-52.

[20]             Id., pp. 37-48.

[21]             Manifestation and Memorandum,

[22]             Manifestation and Memorandum, pp. 94-100.

[23]             The original text read:

Section 1. Declaration of policy. - It is the policy of the State to ensure free, orderly, honest, peaceful and credible elections, and assure the secrecy and sanctity of the ballot in order that the results of elections, plebiscites, referenda, and other electoral exercises shall be fast, accurate and reflective of the genuine will of the people.

[24]   The original text read:

Section 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, 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, 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. (emphasis supplied)

[25]             The original text read:

Section 8. Procurement of equipment and materials. - The Commission shall procure the automated counting machines, computer equipment, devices and materials needed for ballot printing and devices for voting, counting and canvassing from local or foreign sources free from taxes and import duties, subject to accounting and auditing rules and regulations.

[26]             Manifestation and Memorandum, pp. 57-61, citing Records of the Senate, Volumes II and III.

[27]             Petition, p. 28.

[28]          Supra at 21.

[29]             Section 47, RA 9369 provides that the law shall take effect 15 days after its publication in a newspaper of general circulation. It was first published in the January 26, 2007 issue of Malaya.

[30]             www.merriam-webster.com/dictionary.

[31]             Stemmerik v. Mas, A.C. No. 8010, 16 June 2009.

[32]             Id.

[33]             Manifestation and Memorandum, p. 57.

The following relevant statements of Senator Gordon during the Senate deliberations on October 11,  2006 regarding Senate Bill No. 2231 is enlightening:

Sen. Gordon:

x   x   x  Our position, Mr. President, is that this bill is essentially an amendment of an original bill that says automation of election, which means that it has already started. x   x   x

 

So, we are saying, Mr. President, that based on that, with all these things that are covered already, -- in fact, there is practically a delegation of authority given to the Comelec which, by the way, is constitutionally the implementor of elections to the advisory council and to the oversight committee which is composed of seven senators and seven congressmen. x   x   x

 

x   x   x The proponent’s (Sen. Roxas’) amendment will take acts of Congress to continue AES.

 

In other words, Congress has to act to continue the automated election system. In our proposal, it will take an act of Congress to stop AES. In other words, the general rule is, AES is now on a heuristic path, umaandar na iyan. The reports have already been given, the budget will still have to be approved for that, which means congressional action will be taken every step of the way. x   x   x

 

Kaya nga ang sinasabi ko, magiging ludicrous tayo na in 1997, ang sabi natin automation. Hindi po ito test. Ito po ay desisyon natin na pairalin na iyong automation sa six provinces and six cities because gahol na ho tayo sa oras. We have ran out of time. x   x   x

 

x   x   x I find that hindi tayo lumalakad kung babalik ulit tayo sa 2010 sa six provinces and six cities, para ano pa at naglalagay tayo ng automated election title dito? All I am saying is that, once we go on automation, we should move on. x   x   x (Senate Deliberations, 11 October  2006, p. 191-200.) (emphasis supplied)

[34]             Memorandum for public respondent, p. 60, citing Annexes “12”, “13” and “14”.

[35]             Government Procurement Reform Act; effective January 26, 2003.

[36]             Sec. 23.6.2(a), Rule VIII, Implementing Rules and Regulations of RA 9184.

[37]             Id. at Sec. 2.2.7.

[38]             See also Sec. 23.11.1, Implementing Rules and Regulations of RA 9184.

[39]             Annex 5, p. 9, Comment of public respondent.

[40]             Annex 12, Comment of public respondent.

[41]             Memorandum, pp. 90-92.

[42]             These essential elements are consent, object certain and cause.

[43]             Sec. 63, RA 9184.

[44]  GPBB opinion NPM No. NPM 098-2004 dated July 23, 2004. www.gppb.gov.ph/opinions/view_opinion.asp. See also the GPPB Manual of Procedures for the Procurement of Goods and Services.

[45]             Sec. 71 of the Instruction to Bidders provides that “The bidder shall specify in its Bid all portions of the Goods and Services that will be subcontracted, if any, including the entities to whom each portion will be subcontracted xxx. Subcontracting of any portion shall not relieve the Bidder from any liability or obligation that may arise from its performance.”

[46]             Supra at  32.

[47]             Memorandum, pp. 32-35.

[48]             Angeles v. Santos, 64 Phil. 697 (1937).

[49]             Ong Yong, et al. v. David Tui, et al., G.R. No. 144476, April 8, 2003.

[50]             Item 2.2.6.2.2.2.

[51]             Item 2.2.6.1.2.3.

[52]             Item 2.2.6.1.2.5.

[53]              Annex 9, Comment of public respondent.

[54]              Id., p. 2.

[55]              Annex 10, Comment of public respondent.

[56]             Omnibus SBAC Resolution No. 09-001, Annex 6, Comment of public respondent.

[57]             Id..

[58]             Item 2.2.6.1.2.5, RFP.

[59]              Supra at 48.

[60]              Article IX-C, Sec. 2, par. 1. 

[61]              Article IX-C, Sec. 2, par. 3.

[62]              Under the contract, the term PROVIDER refers to Smartmatic TIM Corporation.

[63]          Memorandum, pp. 17-29, 49-52.

[64]              Section 26 of RA 8436 reads:

 

Sec. 26. 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 for the acquisition, installation, administration, storage, and maintenance of equipment and devices, and to promulgate the necessary rules and regulations for the effective implementation of this Act.

[65]             Section 1, RA 9369.

[66]          Sec. 26, RA 8436.

[67]             Under RA 9369, the Advisory Council shall be composed of the following:

 

Sec. 8. xx   xx   xx  The Council shall be composed of the following members, who must be registered Filipino voters, of known independence, competence and probity;

 

"(a) The Chairman of the Commission on information and Communications Technology (CICT) who shall act  as the chairman of the council;

                       

"(b) One member from the Department of Science and Technology;

                               

"(c) One member from the Department of Education;

           

"(d) One member representing the academe, to be selected by the chair of the Advisory Council from among the list of nominees submitted by the country's academic institutions;

 

"(e) Three members representing ICT professional organizations to be selected by the chair of the Advisory Council from among the list of nominees submitted by Philippines-based ICT professional organization. Nominees shall be individuals, at least one of whom shall be experience in managing or implementing large-scale IT projects.

 

"(f) Two members representing nongovernmental electoral reform organizations, to be selected by the chair of the Advisory Council from among the list of nominees submitted by the country's nongovernmental electoral reform organizations.

[68]             Sec. 9.

[69]             Sec. 11.

[70]             Sec. 6.3.6.

[71]             Articles 3.1.a, 3.1.b and 3.2 of the contract.

[72]             Memorandum, pp.

[73]             Memorandum, pp. 17-29, 49-52.

[74]             See Zuni Public School District No. 89, et al. v. Department of Education, et al., 550 U.S. __ (2007).

[75]             Sec. 9, RA 9369.