Republic of the
SUPREME COURT
EN BANC
|
H.
HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. BAGARES, ALLAN JONES F.
LARDIZABAL, GILBERT T. ANDRES, IMMACULADA D. GARCIA, ERLINDA T. MERCADO,
FRANCISCO A. ALCUAZ, MA. AZUCENA P. MACEDA, and ALVIN A. PETERS,
Petitioners, - 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
CORPORATION and SMARTMATIC INTERNATIONAL CORPORATION, Respondents. PETE QUIRINO-QUADRA,
Petitioner-in-Intervention. SENATE OF THE PHILIPPINES, represented by its President, JUAN PONCE ENRILE, Movant-Intervenor. |
|
G.R. No. 188456 Present: PUNO, C.J., CARPIO, CARPIO
MORALES, VELASCO,
JR., NACHURA, LEONARDO-DE
CASTRO, BRION, PERALTA, BERSAMIN,
ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ. Promulgated: February
10, 2010 |
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R E S O L U T I O N
VELASCO, JR., J.:
By Decision dated September 10, 2009, the Court
denied the petition of H. Harry L. Roque, Jr., et al. for certiorari,
prohibition, and mandamus to nullify the contract-award of the 2010 Election
Automation Project to the joint venture of Total Information Management Corporation
(TIM) and Smartmatic International Corporation (Smartmatic). The Court also
denied the petition-in-intervention of Pete Q. Quadra, praying that the
respondents be directed to implement the minimum requirements provided under
pars. (f) and (g), Section 6 of Republic Act No. (RA) 8436, or the Election
Modernization Act, as
amended by RA 9369.
Petitioners Roque, et al. are again before the Court on a motion for
reconsideration, as supplemented, praying, as they did earlier, that the
contract award be declared null and void on the stated ground that it was made in
violation of the Constitution, statutes, and jurisprudence.[1]
Intervening petitioner also interposed a similar motion, but only to pray that
the Board of Election Inspectors be ordered to manually count the ballots after
the printing and electronic transmission of the election returns.
To both motions, private respondents TIM and
Smartmatic, on the one hand, and public respondents Commission on Elections
(Comelec), et al., on the
other, have interposed their separate comments and/or oppositions.
As may be recalled, the underlying petition for
certiorari, etc. on its face
assailed the award by Comelec of the poll automation project to the
TIM-Smartmatic joint venture, the challenge basically predicated on the
non-compliance of the contract award with the pilot-testing requirements of RA
9369 and the minimum system capabilities of the chosen automated election
system (AES), referring to the Precinct Count Optical Scan (PCOS) system. The
non-submission of documents to show the existence and scope of a valid joint
venture agreement between TIM and Smartmatic was also raised as a nullifying
ground, albeit later abandoned or at least not earnestly pursued.
The Court, in its September 10, 2009 Decision,
dismissed the petition and the petition-in-intervention on the following main
grounds: (1) RA 8436, as amended, does not require that the AES procured or, to
be used for the 2010 nationwide fully automated elections must, as a condition sine
qua non, have been pilot-tested
in the 2007 Philippine election, it being sufficient that the capability of the
chosen AES has been demonstrated in an electoral exercise in a foreign
jurisdiction; (2) Comelec has adopted a rigid technical evaluation mechanism to
ensure compliance of the PCOS with the minimum capabilities standards
prescribed by RA 8436, as amended, and its determination in this regard must be
respected absent grave abuse of discretion; (3) Comelec retains under the
automation arrangement its supervision, oversight, and control mandate to
ensure a free, orderly, and honest electoral exercise; it did not, by entering
into the assailed automation project contract, abdicate its duty to enforce and
administer all laws relative to the conduct of elections and decide, at the
first instance, all questions affecting elections; and (4) in accordance with
contract documents, continuity and
back-up plans are in place to be activated in case the PCOS machines falter
during the actual election exercise.
Petitioners Roque, et al., as movants herein, seek a reconsideration of the
September 10, 2009 Decision on the following issues or grounds:
1. The Comelec’s public
pronouncements show that there is a “high probability” that there will be
failure of automated elections;
2. Comelec abdicated its
constitutional functions in favor of Smartmatic;
3. There is no legal
framework to guide the Comelec in appreciating automated ballots in case the
PCOS machines fail;
4. Respondents cannot comply
with the requirements of RA 8436 for a source code review;
5. Certifications submitted
by private respondents as to the successful use of the machines in elections
abroad do not fulfill the requirement of Sec. 12 of RA 8436;
6. Private respondents will
not be able to provide telecommunications facilities that will assure 100%
communications coverage at all times during the conduct of the 2010 elections;
and
7. Subcontracting the
manufacture of PCOS machines to Quisdi violates the Comelec’s bidding
rules.
Both public and private respondents, upon the
other hand, insist that petitioners’ motion for reconsideration should be held
devoid of merit, because the motion, for the most part, either advances issues
or theories not raised in the petition for certiorari, prohibition, and
mandamus, and argues along speculative and conjectural lines.
Upon taking a second hard look into the issues
in the case at bar and the arguments earnestly pressed in the instant motions,
the Court cannot grant the desired reconsideration.
Petitioners’ threshold argument delves on
possibilities, on matters that may or may not occur. The conjectural and
speculative nature of the first issue raised is reflected in the very manner of
its formulation and by statements, such as “the public pronouncements of public
respondent COMELEC[2] x
x x clearly show that there is a high probability that there will be automated
failure of elections”;[3]
“there is a high probability that the use of PCOS machines in the May 2010
elections will result in failure of elections”;[4]
“the unaddressed logistical nightmares—and the lack of contingency plans that
should have been crafted as a result of a pilot test—make an automated failure
of elections very probable”;[5]
and “COMELEC committed grave abuse of discretion when it signed x x x the
contract for full automation x x x despite the likelihood of a failure of
elections.”[6]
Speculations and conjectures
are not equivalent to proof; they have little, if any, probative value and,
surely, cannot be the basis of a sound judgment.
Petitioners, to support their speculative
venture vis-à-vis the possibility of Comelec going manual, have attributed
certain statements to respondent Comelec
Chairman Melo, citing for the purpose a news item on Inquirer.net, posted September 16, 2009.[7]
Reacting to the attribution, however,
respondents TIM and Smartmatic, in their comment, described the Melo
pronouncements as made in the context of Comelec’s contingency plan.
Petitioners, however, the same respondents added, put a misleading spin to the
Melo pronouncements by reproducing part of the news item, but omitting to make
reference to his succeeding statements to arrive at a clearer and true
picture.
Private respondents’ observation is well-taken.
Indeed, it is easy to selectively cite portions of what has been said,
sometimes out of their proper context, in order to assert a misleading
conclusion. The effect can be dangerous. Improper meaning may be deliberately
attached to innocent views or even occasional crude comments by the simple
expediency of lifting them out of context from any publication. At any event,
the Court took it upon itself to visit the website, whence petitioners deduced
their position on the possible failure of automated elections in problem areas
and found the following items:
Allaying fears of failure of elections in 2010, the x x x [Comelec] said it will prepare for manual balloting, especially for areas with problems in electricity and telecommunications network coverage. x x x
“Aside from preparations for poll automation, Comelec is also preparing for manual elections sa mga liblib na lugar [in remote places] x x x, provinces with no electricity and would have issues in electronic transmission. We are ready for manual polls in at least 30 percent or 50 percent of the country as a last contingency measure in case the contingency plans for automation are difficult to implement,” said Melo.
The poll chief was reacting to statements expressing the possibility of failure of elections due to the novelty of poll automation.
“The occurrence of nationwide failure of elections as alleged by doomsayers is impossible. Under the laws of probability, all 80,000 PCOS machines nationwide cannot breakdown. Maybe several would but we have standby units for this and we also have preparations for manual elections,” he said.[8] (Emphasis added.)
Petitioners next maintain that the Comelec
abdicated its constitutional mandate[9]
to decide all questions affecting elections when, under Article 3.3[10]
of the poll automation contract, it surrendered control of the system and
technical aspects of the 2010 automated elections to Smartmatic in violation of
Sec. 26[11]
of RA 8436. Comelec, so petitioners suggest, should have stipulated that its
Information Technology (IT) Department shall have charge of the technical
aspects of the elections.
Petitioners’ above contention, as well as the
arguments, citations, and premises holding it together, is a rehash of their
previous position articulated in their memorandum[12]
in support of their petition. They have been considered, squarely addressed,
and found to be without merit in the Decision subject hereof. The Court is not inclined to embark on another
extended discussion of the same issue again. Suffice it to state that, under
the automation contract, Smartmatic is given a specific and limited technical
task to assist the Comelec in implementing the AES. But at the end of the day, the
Smarmatic-TIM joint venture is merely a service provider and lessor of goods
and services to the Comelec, which shall have exclusive supervision and control
of the electoral process. Art. 6.7 of the automation contract could not
have been more clear:
6.7 Subject to the provisions of the General Instructions to be issued by
the Commission En Banc, the entire process of voting, counting,
transmission, consolidation and canvassing of votes shall [still] be conducted
by COMELEC’s personnel and officials and their performance, completion and final
results according to specifications and within specified periods shall be the
shared responsibility of COMELEC and the PROVIDER. (Emphasis added.)
The
aforequoted provision doubtless preserves Comelec’s constitutional and
statutory responsibilities. But at the
same time, it realistically recognizes the complexity and the highly technical
nature of the automation project and addresses the contingencies that the
novelty of election automation brings.
Petitioners’ posture anent the third issue,
i.e, there no is legal framework to guide Comelec in the appreciation of automated
ballots or to govern manual count should PCOS machines fail, cannot be accorded
cogency. First, it glosses
over the continuity and back-up plans that would be implemented in case the
PCOS machines falter during the 2010 elections.[13]
The overall fallback strategy and
options to address even the worst-case scenario—the wholesale breakdown of the
80,000 needed machines nationwide and of the 2,000 reserved units—have been
discussed in some detail in the Decision subject of this recourse. The Court need not belabor them again.
While a motion for reconsideration may tend to
dwell on issues already resolved in the decision sought to be reconsidered—and
this should not be an obstacle for a reconsideration—the hard reality is that
petitioners have failed to raise matters substantially plausible or
compellingly persuasive to warrant the desired course of action.
Second, petitioners’ position presupposes
that the Comelec is, in the meanwhile, standing idly by, totally unconcerned
with that grim eventuality and the scenarios petitioners envision and depict. Comelec, to reiterate, is the constitutional
body tasked to enforce and administer all laws and regulations relative to the
conduct of an election. In the discharge of this responsibility, Comelec has
been afforded enough latitude in devising means and methods that would enable
it to accomplish the great objective for which it was created. In the matter of
the administration of laws relative to the conduct of elections, the Court—or
petitioners for that matter—must not, by any preemptive move or any excessive
zeal, take away from Comelec the initiative that by law pertains to it.[14]
It should not be stymied with restrictions that would perhaps be justified in
the case of an organization of lesser responsibility.[15]
Significantly, petitioners, in support of
their position on the lack-of-legal-framework issue, invoke the opinion of
Associate, later Chief, Justice Artemio Panganiban in Loong v. Comelec,[16] where he made the
following observations: “Resort to manual appreciation of the ballots is
precluded by the basic features of the automated election system,”[17]
and “the rules laid down in the Omnibus Election Code (OEC) for the
appreciation and counting of ballots cast in a manual election x x x are
inappropriate, if not downright useless, to the proper appreciation and reading
of the ballots used in the automated system.”[18]
Without delving on its wisdom and
validity, the view of Justice Panganiban thus cited came by way of a dissenting
opinion. As such, it is without binding effect, a dissenting opinion being a
mere expression of the individual view of a member of the Court or other
collegial adjudicating body, while disagreeing with the conclusion held by the
majority.[19]
Petitioners insist next that
public respondents cannot comply with the requirement of a source code[20]
review as mandated by Sec. 14 of RA 8436, as amended, which provides:
SEC. 14. Examination and
Testing of Equipment or Device of the AES and Opening of the Source Code of
Review.—Once an AES Technology is selected for implementation, the
Commission shall promptly make the source code of that technology available and
open to any interested political party or groups which may conduct their own
review thereof.
Pursuing the point, after citing a commentary
of an IT expert on the importance of a source code review, petitioners state
the observation that “there are strong indications of [the inability] to comply
x x x since the source code, which runs the PCOS machines, will effectively be
kept secret from the people.”[21]
Again,
petitioners engage in an entirely speculative exercise, second- guessing what
the Comelec can and will probably do, or what it cannot and probably will not
do, with respect to the implementation of a statutory provision. The fact that
a source code review is not expressly included in the Comelec schedule of
activities is not an indication, as petitioners suggest, that Comelec will not
implement such review. Comelec, in its Comment
on the Motion for Reconsideration, manifests its intention to make available
and open the source code to all political and interested parties, but under a
controlled environment to obviate replication and tampering of the source code,
thus protecting, in the process, the intellectual proprietary right of
Smartmatic to the source code. Absent compelling proof to the contrary, the
Court accords the Comelec, which enjoys the presumption of good faith in the
performance of its duties in the first place, the benefit of the doubt.
And
going to another but recycled issue, petitioners would have the Court
invalidate the automation contract on the ground that the certifications
submitted by Smartmatic during the bidding, showing that the PCOS technology
has been used in elections abroad, do not comply with Sec. 12[22]
of RA 8436.
We are not convinced.
As stressed in our September 10, 2009 Decision,
the AES chosen by Comelec for the 2010 elections has been successfully deployed in
previous electoral exercises in foreign countries, such as Ontario, Canada and
New
Roque, et al., in their petition, had questioned the
certifications to this effect, arguing that these certifications were not
issued to respondent TIM-Smartmatic, but to a third party, Dominion Voting
Systems. Resolving the challenge, the Court, in effect, said that the system
subject of the certifications was the same one procured by Comelec for the 2010
elections. And besides, the Licensing Agreement between Smartmatic and the Dominion
Voting Systems indicates that the former is the entity licensed by the latter
to use the system in the
Presently, petitioners assert that the system
certified as having been used in
Petitioners have obviously inserted, at this
stage of the case, an entirely new factual dimension to their cause. This we
cannot allow for compelling reasons. For starters, the Court cannot plausibly
validate this factual assertion of petitioners. As it is, private respondents
have even questioned the reliability of the website[24]
whence petitioners base their assertion, albeit the former, citing the same
website, state that the Image Cast Precinct tabulation device refers to the Dominion’s
PCOS machines.
Moreover, as a matter of sound established
practice, points of law, theories, issues, and arguments not raised in the
original proceedings cannot be brought out on review. Basic considerations of fair play impel this
rule. The imperatives of orderly, if not speedy, justice frown on a piecemeal
presentation of evidence[25]
and on the practice of parties of going to trial haphazardly.[26]
Moving still to another issue, petitioners
claim that “there are very strong indications that Private Respondents will not
be able to provide for telecommunication facilities for areas without these
facilities.”[27]
This argument, being again highly speculative, is without evidentiary value and
hardly provides a ground for the Court to nullify the automation contract. Surely,
a possible breach of a contractual stipulation is not a legal reason to prematurely
rescind, much less annul, the contract.
Finally, petitioners argue that, based on news
reports,[28]
the TIM-Smartmatic joint venture has entered into a new contract with Quisdi, a
Shanghai-based company, to manufacture on its behalf the needed PCOS machines
to fully automate the 2010 elections.[29]
This arrangement, petitioners aver, violates the bid rules proscribing
sub-contracting of significant components of the automation project.
The argument is untenable, based as it is again
on news reports. Surely, petitioners cannot expect the Court to act on
unverified reports foisted on it. And,
of course, the Court is at a loss to understand how the sub-contract would, in
the scheme of things, constitute grave abuse of discretion on the part of
Comelec so as to nullify the contract award of the automation project. As petitioners themselves acknowledge, again
citing news reports, “Smartmatic has unilaterally made the new subcontract to
the Chinese company.”[30]
Petitioners admit too, albeit with
qualification, that RA 9184 allows subcontracting of a portion of the
automation project.[31]
The motion of intervenor Quadra deals with the
auditability of the results of the automated elections. His concern has already
been addressed by the Court in its Decision. As we have said, the AES procured
by the Comelec is a paper-based system, which has a provision for system
auditability, since the voter would be able, if needed, to verify if the PCOS
machine has scanned, recorded, and counted his vote properly. All actions done
on the machine can be printed out by the Board of Election Inspectors Chairperson
as an audit log.[32]
On the
basis of the arguments, past and present, presented by the petitioners and
intervenor, the Court does not find any grave abuse of discretion on the part
of the Comelec in awarding the automation contract to the joint venture of
private respondents.
In closing, the Court harks back to its parting
message embodied in its September 10, 2009 Decision, but this time even more
mindful of warnings and apprehensions of well-meaning sectors of society,
including some members of the Court, about the possibility of failure of
elections. The Court, to repeat, will not venture to say that nothing could go
wrong in the conduct of the 2010 nationwide automated elections. Neither will it guarantee, as it is not even
equipped with the necessary expertise to guarantee, the effectiveness of the
voting machines and the integrity of the counting and consolidation software
embedded in them. That difficult and complex undertaking belongs at the first
instance to the Comelec as part of its mandate to insure orderly and peaceful
elections. The Comelec, as it were, is
laboring under a very tight timeline. It
would accordingly need the help of all advocates of orderly and honest
elections, all men and women of goodwill, to assist Comelec personnel in
addressing the fears expressed about the integrity of the system. After all, peaceful,
fair, honest, and credible elections is everyone’s concern.
WHEREFORE, the
instant separate motions for reconsideration of the main and intervening
petitioners are DENIED.
SO ORDERED.
PRESBITERO
J. VELASCO, JR.
Associate
Justice
WE
CONCUR:
REYNATO S. PUNO
Chief Justice
ANTONIO T. CARPIO RENATO C.
Associate Justice Associate Justice
CONCHITA CARPIO MORALES ANTONIO EDUARDO B. NACHURA
Associate Justice Associate
Justice
TERESITA J. LEONARDO-DE CASTRO
ARTURO D. BRION
Associate Justice Associate Justice
DIOSDADO M. PERALTA LUCAS P. BERSAMIN
Associate Justice Associate
Justice
MARIANO C.
Associate Justice Associate Justice
MARTIN S. VILLARAMA, JR. JOSE
Associate Justice Associate
Justice
JOSE CATRAL
Associate Justice
C E R T I F I C A T I O N
Pursuant
to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Resolution had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.
REYNATO
S. PUNO
Chief Justice
[2]
[7]<http://newsinfo.Inquirer.net/breakingnews/nation/view/20090916-225461/Comelec may go manual in problem areas> (visited January 11, 2010).
[9] Article IX-C, Sec. 2 of the Constitution provides that the Comelec shall “[e]nforce and administer all laws and regulations relative to the conduct of an election … [and] Decide, except those involving the right to vote, all questions affecting elections x x x.”
[10] Article 3.3. The Provider shall be liable for all its obligations under the Project x x x SMARTMATIC, as the joint 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 primary responsible for preventing and troubleshooting technical problems that may arise during the election. x x x
[11] Sec. 26. Supervision and control.—The System shall be under the exclusive supervision and control of the [Comelec]. 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. x x x
[13] RA 9369, Sec. 11. provides: Section 9 of [RA] 8436 is hereby amended to read as follows: Sec. 13. Continuity Plan.—The AES shall be so designed to include a continuity plan in case of a systems breakdown or any such eventuality which shall result in the delay, obstruction or nonperformance of the electoral process. Activation of such continuity and contingency measures shall be undertaken in the presence of representatives of political parties and citizen’s arm of the Commission who shall be notified by the election officer of such activation.
All political parties and party-lists shall be furnished copies of said continuity plan x x x. The list shall be published in at least two newspapers of national circulation and shall be posted at the website of the Commission at least fifteen (15) days prior to the electoral activity concerned.
[19] Coca-Cola Bottlers, Inc. Sales Force Union-PTGWO-Balais v. Coca-Cola Bottlers Philippines, Inc., G.R. No. 155651, July 28, 2005, 464 SCRA 507; National Union of Workers in Hotels, Restaurants and Allied Industries v. NLRC, G.R. No. 125561, March 6, 1988, 287 SCRA 192.
[20] Defined in Sec. 2 of RA 8436 as “human readable instructions [set of numbers, letters and symbols] that define what the computer equipment will do.”
[22] SEC 12. Procurement of Equipment and Materials.—To achieve the purpose of this Act, the Commission is authorized to procure x x x supplies, equipment, materials, software, facilities, and other services, from local or foreign sources x x x. With respect to the May 10, 2010 elections and succeeding electoral exercises, the system procured must have demonstrated capability and been successfully used in prior electoral exercise here or abroad. Participation in the 2007 pilot exercise shall not be conclusive of the system’s fitness.