c
c 

 
 c 



ccc   c 
   c c
c 
   petitioners,
vs.
cc   c   
c  c   cc  c
c c 
 
 c   c
c c c  c
c   crespondents.

 !"

Ô? Ên January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Êrder No. 172, which allocated the sum of P2.5 billion to fund the AES for the May 10, 2004 elections.
Upon the request of Comelec, she authorized the release of an additional P500 million.
Ô? Ên January 28, 2003, the Commission issued an "Invitation to Apply for Eligibility and to Bid,"

4
Before us is a Petition under Rule 65 of the Rules of Court, seeking

(1)? to declare null and void Resolution No. 6074 of the Commission on Elections (Comelec), which awarded "Phase II of the Modernization Project of the Commission to Mega Pacific
Consortium (MPC);"
13
Ô? Êut of the 57 bidders, the BAC found MPC and the Total Information Management Corporation (TIMC) eligible. For technical evaluation, they were referred to the BAC͛s
Technical Working Group (TWG) and the Department of Science and Technology (DÊST).
Ô? In its Report on the Evaluation of the Technical Proposals on Phase II, DÊST said that both MPC and TIMC had obtained a number of failed marks in the technical evaluation.
Notwithstanding these failures, Comelec en banc, on April 15, 2003, promulgated Resolution No. 6074 awarding the project to MPC. The Commission publicized this Resolution
and the award of the project to MPC on May 16, 2003.

(2) to enjoin the implementation of any further contract that may have been entered into by Comelec "either with Mega Pacific Consortium and/or Mega Pacific eSolutions, Inc. (MPEI);" and

(3) to compel Comelec to conduct a re-bidding of the project.

Ên May 29, 2003, five individuals and entities (including the herein Petitioners Information Technology Foundation of the Philippines, represented by its president, Alfredo M. Torres; and
Ma. Corazon Akol) wrote a letter14 to Comelec Chairman Benjamin Abalos Sr. They protested the award of the Contract to Respondent MPC "due to glaring irregularities in the manner in
which the bidding process had been conducted." Citing therein the noncompliance with eligibility as well as technical and procedural requirements (many of which have been discussed at
length in the Petition), they sought a re-bidding.

In a letter-reply dated June 6, 2003,15 the Comelec chairman -- speaking through Atty. Jaime Paz, his head executive assistant -- rejected the protest and declared that the award "would
stand up to the strictest scrutiny."

c!!#"WÊN the petitioners͛ legal standing should be recognized and upheld (despite the fact that they don͛t meet the rule on legal standing)
#$%&"YES

 %'$"

Respondents chorus that petitioners do not possess u
 , inasmuch as they are not challenging the validity or constitutionality of RA 8436. Moreover, petitioners supposedly
admitted during the Êral Argument that no law had been violated by the award of the Contract. Furthermore, they allegedly have no actual and material interest in the Contract and, hence,
do not stand to be injured or prejudiced on account of the award.

Ên the other hand, petitioners -- suing in their capacities as taxpayers, registered voters and concerned citizens -- respond that the issues central to this case are "of transcendental
importance and of national interest." Allegedly, Comelec͛s flawed bidding and questionable award of the Contract to an unqualified entity would impact directly on the success or the failure
of the electoral process. Thus, any taint on the sanctity of the ballot as the expression of the will of the people would inevitably affect their faith in the democratic system of government.
Petitioners further argue that the award of any contract for automation involves disbursement of public funds in gargantuan amounts; therefore, public interest requires that the laws
governing the transaction must be followed strictly.

Êur nation͛s political and economic future virtually hangs in the balance, pending the outcome of the 2004 elections. Hence, there can be no serious doubt that the subject matter of this
case is "a matter of public concern and imbued with public interest";18 in other words, it is of "paramount public interest"19 and "transcendental importance."20 This fact alone would justify
relaxing the rule on legal standing, following the liberal policy of this Court whenever a case involves "an issue of overarching significance to our society."21 Petitioners͛ legal standing should
therefore be recognized and upheld.

Moreover, this Court has held that taxpayers are allowed to sue when there is a claim of "illegal disbursement of public funds,"22 or if public money is being "deflected to any improper
purpose";23 or when petitioners seek to restrain respondent from "wasting public funds through the enforcement of an invalid or unconstitutional law."24 In the instant case, individual
petitioners, suing as taxpayers, assert a material interest in seeing to it that public funds are properly and lawfully used. In the Petition, they claim that the bidding was defective, the winning
bidder not a qualified entity, and the award of the Contract contrary to law and regulation. Accordingly, they seek to restrain respondents from implementing the Contract and, necessarily,
from making any unwarranted expenditure of public funds pursuant thereto. Thus, we hold that petitioners possess u














!'$# %'"(!!%&!)

' %'"Before us is the Commission on Election͛s "Most Respectful Motion for Leave to Use the Automated Counting Machines in [the] Custody of the Commission on Elections for use (sic)
in the August 8, 2005 Elections in the Autonomous Region for Muslim Mindanao (ARMM)," dated December 9, 2004. In its January 18, 2005 Resolution, the Court required the parties to
comment.

Ô

  



Ên the other hand, petitioners contend that Comelec is asking this Court to render an advisory opinion, in contravention of the constitutional provision6 that explicitly states that the exercise
of judicial power is confined to (1) settling actual controversies involving rights that are legally demandable and enforceable; and (2) determining whether there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.

Petitioners assert that there is no longer any live case or controversy to speak of -- an existing case or controversy that is appropriate or ripe for determination, not merely conjectural or
anticipatory; and that Comelec͛s allegations in its Motion do not amount to an actual case or controversy that would require this Court to render a decision or resolution in the legitimate
exercise of its judicial power. This lack of actual controversy is clearly seen in the relief prayed for in the Motion: the grant of a leave to use the ACMs during the ARMM elections. Êbviously,
Comelec merely seeks an advisory opinion from this Court on whether its proposal to use the ACMs during the said elections might be in violation of this Court͛s Decision dated January 13,
2004, and Resolution dated February 17, 2004.

Assuming   that the present Motion might somehow be justified by the government͛s fiscal difficulties, petitioners further argue that permitting Comelec to use the ACMs would
nevertheless allow it to do indirectly what it was not permitted by this Court to do directly. They argue that the instant Motion is merely a subterfuge on the poll body͛s part to resurrect a
lost case via a request for an advisory opinion.

#$$%&"


%*! "

Basic and primordial is the rule that when a final judgment becomes executory, it thereby becomes immutable and unalterable. In other words, such a judgment may no longer undergo any
modification, much less any reversal, even if it is meant to correct what is perceived to be an erroneous conclusion of fact or law; and even if it is attempted by the court rendering it or by
this Court.7 Equally well-entrenched is the doctrine that what is not permitted to be done directly may not be done indirectly either. In the instant case, it is unarguable that the inexorable
result of granting the present Motion will precisely be a subversion of the Decision, or at least a modification that would render the latter totally ineffective and nugatory.

'the grant of the Motion will bar or jeopardize the recovery of government funds improvidently paid to private respondents, funds that to date the ÊSG estimates to be over one
billion pesos. At the very least, granting the Motion will be antagonistic to the directive in our Decision for the ÊSG to recover the "illegal disbursements of public funds made by reason of
the void Resolution and Contract."

+%*, the use of the unreliable ACMs and the nonexistent software that is supposed to run them will expose the ARMM elections to the same electoral ills pointed out in our final and
executory Decision. Be it remembered that this Court expressly ruled that the proffered hardware and software had undeniably failed to pass eight critical requirements designed to
safeguard the integrity of elections, especially the following three items:

"· They failed to achieve the accuracy rating criterion of 99.9995 percent set up by the Comelec itself.

"· They were not able to detect previously downloaded results at various canvassing or consolidation levels and to prevent these from being inputted again.

"· They were unable to print the statutorily required audit trails of the count/canvass at different levels without any loss of data."14

The Motion has not at all demonstrated that these technical requirements have been addressed from the time our Decision was issued up to now. In fact, Comelec is merely asking for leave
to use the machines, without mentioning any specific manner in which the foregoing requirements have been satisfactorily met.

'#* +, assuming   that the foregoing formidable u u,  
u and 

u obstacles could be overcome or set aside, still, the Motion cannot be granted because it is vague; it
does not contain enough details to enable this Court to act appropriately.

The sham nature of the Motion is evident from the following considerations. While Comelec asserts a pressing need for the ACMs to be used in the ARMM elections, strangely enough, it has
not bothered to determine the number of units that will be required for the purpose, much less tried to justify such quantification. It contracted for a total of 1,991 ACMs, intended for use
throughout the entire country during the 2004 elections. Are we to believe that all 1,991 units would be utilized to count and canvass the votes cast in the ARMM elections? Such a scenario
is highly unlikely, even ridiculous.

A genuine, bona fide proposal for the utilization of the ACMs would naturally have included a well-thought-out plan of action, indicating the number of units to be deployed, places of
utilization, number of operators and other personnel required, methods/periods of deployment and recovery or retrieval, assessments of costs and risks involved in implementing the
proposal, and concomitant justifications, among other things. Now, either "The Plan" is being kept absolutely top secret, or it is completely nonexistent.

%, +, there is no basis for the claim that unless the subject ACMs are used, the ARMM elections would not be held.

At the outset, if such elections are not held, the blame must be laid squarely at the doorstep of Comelec. To stress, had it not gravely abused its discretion, the automation of the vote
counting and canvassing processes would have already become a reality over a year ago, and the ACMs that would have been used in the 2004 national elections would now be available for
the ARMM elections.

In any event, the Commission in its Motion argues that the government, given its present fiscal difficulties, has no available funds to finance the automation of the ARMM elections. Without
even asking under what authority it has assumed the role of Treasury spokesman, we emphasize that there would not now be any lack of funds for election automation had it not
improvidently turned over P1 billion of taxpayers͛ moneys to Mega Pacific͛s bank accounts.
Nevertheless, had the poll body been honestly and genuinely intent on implementing automated counting and canvassing for the ARMM elections, it ought to have informed Congress of the
non-availability of the subject ACMs due to our Decisions and of the need for special appropriations, instead of wasting this Court͛s time on its unmeritorious Motion. In fact, if only it had
taken proper heed of our Decision of January 13, 2004, it could have conducted an above-board public bidding for the supply of acceptable ACMs.

Certainly, this option or course of action was not foreclosed by our Decision. Moreover, there was sufficient time within which to conduct the public bidding process. RA 9333, which set the
second Monday of August 2005 (August 8, 2005) as the date of the ARMM elections, was enacted on September 21, 2004. Undoubtedly, Comelec was made aware of the proposed date of
the ARMM elections way before the passage of RA 9333. Thus, the poll body had about ten (10) months   +-*.$! (between the end of September 2004, when RA 9333 came into
force and effect, and August 8, 2005) to lobby Congress, properly conduct a public bidding, award the appropriate contracts, deliver and test the new machines, and make final preparations
for the election.

Even assuming that a new public bidding for ACMs was not a viable option, still, Comelec has had more than sufficient lead time -- about ten months counted from the end of September
2004 until August 8, 2005 -- to prepare for manual counting and canvassing in the ARMM elections. It publicly declared, sometime in late January 2004, that notwithstanding our Decision
nullifying the Mega Pacific Contract, it would still be able to implement such manualization for the May 10, 2004 national elections. It made this declaration even though it had a mere three
months or so to set up the mechanics. In this present instance involving elections on a much smaller scale, it will definitely be able to implement manual processes if it wants to.

There is therefore absolutely no basis for any apprehension that the ARMM elections would not push through simply because the present Motion cannot pass muster. More to the point, it
would be ridiculous to regard the grant of permission to use the subject ACMs as the
      for the holding of the ARMM elections.

‘
   
 

%$$.,the Motion presents no actual justiciable case or controversy over which this Court can exercise its judicial authority. It is well-established in this jurisdiction that "x x x for a court to
exercise its power of adjudication, there must be an actual case or controversy -- one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial
resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. x x x [C]ourts do not sit to adjudicate mere
academic questions to satisfy scholarly interest, however intellectually challenging."18 The controversy must be justiciable -- definite and concrete, touching on the legal relations of parties
having adverse legal interests.19 In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other; that is, it must
concern a real and not a merely theoretical question or issue.20 There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a hypothetical state of facts.21

A perusal of the present Motion will readily reveal the utter absence of a live case before us, involving a clash of legal rights or opposing legal claims. At best, it is merely a request for an
advisory opinion, which this Court has no jurisdiction to grant.22