EN BANC

[ G.R. No. 93867, December 18, 1990 ]

SIXTO S. BRILLANTES, JR., PETITIONER, VS. HAYDEE B. YORAC, IN
HER CAPACITY AS ACTING CHAIRPERSON OF THE COMMISSION ON
ELECTIONS, RESPONDENT.

DECISION

CRUZ, J.:

The petitioner is challenging the designation by the President of the Philippines of

Associate Commissioner Haydee B. Yorac as Acting Chairman of the Commission on
Elections, in place of Chairman Hilario B. Davide, who had been named chairman of the
fact-finding commission to investigate the December 1989 coup d'etat attempt.

The qualifications of the respondent are conceded by the petitioner and are not in issue in
this case.  What is the power of the President of the Philippines to make the challenged
designation in view of the status of the Commission on Elections as an independent
constitutional body and the specific provision of Article IX-C, Section 1(2) of the
Constitution that "(I)n no case shall any Member (of the Commission on Elections) be
appointed or designated in a temporary or acting capacity."

The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where
President Elpidio Quirino designated the Solicitor General as acting member of the
Commission on Elections and the Court revoked the designation as contrary to the
Constitution.  It is also alleged that the respondent is not even the senior member of the
Commission on Elections, being outranked by Associate Commissioner Alfredo E.
Abueg, Jr.

The petitioner contends that the choice of the Acting Chairman of the Commission on
Elections is an internal matter that should be resolved by the members themselves and
that the intrusion of the President of the Philippines violates their independence.  He cites
the practice in this Court, where the senior Associate Justice serves as Acting Chief
Justice in the absence of the Chief Justice.  No designation from the President of
the Philippines is necessary.

In his Comment, the Solicitor General argues that no such designation is necessary in the
case of the Supreme Court because the temporary succession cited is provided for in
Section 12 of the Judiciary Act of 1948.  A similar rule is found in Section 5 of BP 129
for the Court of Appeals.  There is no such arrangement, however, in the case of the
Commission on Elections.  The designation made by the President of
the Philippines should therefore be sustained for reasons of "administrative expediency,"
to prevent disruption of the functions of the COMELEC.

Expediency is a dubious justification.  It may also be an overstatement to suggest that the

operations of the Commission on Elections would have been disturbed or stalemated if
the President of the Philippines had not stepped in and designated an Acting
Chairman.  There did not seem to be any such problem.  In any event, even assuming that
difficulty, we do not agree that "only the President (could) act to fill the hiatus," as the
Solicitor General maintains.

Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional
Commissions as "independent." Although essentially executive in nature, they are not
under the control of the President of the Philippines in the discharge of their respective
functions.  Each of these Commissions conducts its own proceedings under the applicable
laws and its own rules and in the exercise of its own discretion.  Its decisions, orders and
rulings are subject only to review on certiorari by this Court as provided by the
Constitution in Article IX-A, Section 7.

The choice of a temporary chairman in the absence of the regular chairman comes under
that discretion.  That discretion cannot be exercised for it, even with its consent, by the
President of the Philippines.

A designation as Acting Chairman is by its very terms essentially temporary and

therefore revocable at will.  No cause need be established to justify its
revocation.  Assuming its validity, the designation of the respondent as Acting Chairman
of the Commission on Elections may be withdrawn by the President of the Philippines at
any time and for whatever reason she sees fit.  It is doubtful if the respondent, having
accepted such designation, will not be estopped from challenging its withdrawal.

It is true, as the Solicitor General points out, that the respondent cannot be removed at
will from her permanent position as Associate Commissioner.  It is no less true, however,
that she can be replaced as Acting Chairman, with or without cause, and thus deprived of
the powers and perquisites of that temporary position.

The lack of a statutory rule covering the situation at bar is no justification for the
President of the Philippines to fill the void by extending the temporary designation in
favor of the respondent.  This is still a government of laws and not of men.  The problem
allegedly sought to be corrected, if it existed at all, did not call for presidential
action.  The situation could have been handled by the members of the Commission on
Elections themselves without the participation of the President, however well-meaning.
In the choice of the Acting Chairman, the members of the Commission on Elections
would most likely have been guided by the seniority rule as they themselves would
have appreciated it.  In any event, that choice and the basis thereof were for them and not
the President to make.

The Court has not the slightest doubt that the President of the Philippines was moved
only by the best of motives when she issued the challenged designation.  But while
conceding her goodwill, we cannot sustain her act because it conflicts with the
Constitution.  Hence, even as this Court revoked the designation in the Bautista case, so
too must it annul the designation in the case at bar.

The Constitution provides for many safeguards to the independence of the Commission
on Elections, foremost among which is the security of tenure of its members.  That
guaranty is not available to the respondent as Acting Chairman of the Commissions on
Elections by designation of the President of the Philippines.

WHEREFORE, the designation by the President of the Philippines of respondent

Haydee B. Yorac as Acting Chairman of the Commissions on Elections is declared
UNCONSTITUTIONAL, and the respondent is hereby ordered to desist from serving as
such.  This is without prejudice to the incumbent Associate Commissioners of the
Commission on Elections restoring her to the same position if they so desire,
or choosing another member in her place, pending the appointment of a permanent
Chairman by the President of the Philippines with the consent of the Commission
on Appointments.

SO ORDERED.

EN BANC
[ G.R. No. 100113, September 03, 1991 ]
RENATO L. CAYETANO, PETITIONER, VS. CHRISTIAN MONSOD, HON.
JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS, AND HON.
GUILLERMO CARAGUE, IN HIS CAPACITY AS SECRETARY OF
BUDGET AND MANAGEMENT, RESPONDENTS.

DECISION

PARAS, J.:
We are faced here with a controversy of far-reaching proportions.  While ostensibly only
legal issues are involved, the Court's decision in this case would indubitably have a
profound effect on the political aspect of our national existence.

The 1987 Constitution provides in Section 1 (1), Article IX-C:

"There shall be a Commission on Elections composed of a Chairman and six
Commissioners who shall be natural-born citizens of the Philippines and, at the time of
their appointment, at least thirty-five years of age, holders of a college degree, and must
not have been candidates for any elective position in the immediately preceding
elections.  However, a majority thereof, including the Chairman, shall be members of the
Philippine Bar who have been engaged in the practice of law for at least ten years."
(Italics supplied)
The aforequoted provision is patterned after Section 1(1), Article XII-C of the 1973
Constitution which similarly provides:
"There shall be an independent Commission on Elections composed of a Chairman and
eight Commissioners who shall be natural-born citizens of the Philippines and, at the time
of their appointment, at least thirty-five years of age and holders of a college degree. 
However, a majority thereof, including the Chairman, shall be members of the Philippine
Bar who have been engaged in the practice of law for at least ten years." (Italics
supplied)
Regrettably, however, there seems to be no jurisprudence as to what constitutes practice
of law as a legal qualification to an appointive office.

Black defines "practice of law" as:

"The rendition of services requiring the knowledge and the application of legal principles
and technique to serve the interest of another with his consent.  It is not limited to
appearing in court, or advising and assisting in the conduct of litigation, but embraces the
preparation of pleadings, and other papers incident to actions and special proceedings,
conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal
advice to clients.  It embraces all advice to clients and all actions taken for them in
matters connected with the law.  An attorney engages in the practice of law by
maintaining an office where he is held out to be an attorney, using a letterhead describing
himself as an attorney, counseling clients in legal matters, negotiating with opposing
counsel about pending litigation, and fixing and collecting fees for services rendered by
his associate." (Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court.  (Land Title Abstract
and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N. E. 650) A person is also considered to
be in the practice of law when he:
"x x x for valuable consideration engages in the business of advising person, firms,
associations or corporations as to their rights under the law, or appears in a representative
capacity as an advocate in proceedings pending or prospective, before any court,
commissioner, referee, board, body, committee, or commission constituted by law or
authorized to settle controversies and there, in such representative capacity performs any
act or acts for the purpose of obtaining or defending the rights of their clients under the
law.  Otherwise stated, one who, in a representative capacity, engages in the business of
advising clients as to their rights under the law, or while so engaged performs any act or
acts either in court or outside of court for that purpose, is engaged in the practice of law."
(State ex. rel. Mckittrick v. C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v. Agrava, (105 Phil. 173, 176-
177) stated:

"The practice of law is not limited to the conduct of cases or litigation in court; it
embraces the preparation of pleadings and other papers incident to actions and special
proceedings, the management of such actions and proceedings on behalf of clients before
judges and courts, and in addition, conveying.  In general, all advice to clients, and all
action taken for them in matters connected with the law incorporation services,
assessment and condemnation services contemplating an appearance before a judicial
body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and
insolvency proceedings, and conducting proceedings in attachment, and in matters of
estate and guardianship have been held to constitute law practice, as do the preparation
and drafting of legal instruments, where the work done involves the determination by the
trained legal mind of the legal effect of facts and conditions." (5 Am. Jr. p. 262, 263).
(Italics supplied)

"Practice of law under modern conditions consists in no small part of work performed

outside of any court and having no immediate relation to proceedings in court.  It
embraces conveyancing, the giving of legal advice on a large variety of subjects, and the
preparation and execution of legal instruments covering an extensive field of business
and trust relations and other affairs.  Although these transactions may have no direct
connection with court proceedings, they are always subject to become involved in
litigation.  They require in many aspects a high degree of legal skill, a wide experience
with men and affairs, and great capacity for adaptation to difficult and complex
situations.  These customary functions of an attorney or counselor at law bear an intimate
relation to the administration of justice by the courts.  No valid distinction, so far as
concerns the question set forth in the order, can be drawn between that part of the work of
the lawyer which involves appearance in court and that part which involves advice and
drafting of instruments in his office.  It is of importance to the welfare of the public that
these manifold customary functions be performed by persons possessed of adequate
learning and skill, of sound moral character, and acting at all times under the heavy trust
obligations to clients which rests upon all attorneys." (Moran, Comments on the Rules of
Court, Vol. 3 [1953 ed.], p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.
E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,
144]).  (Italics ours)

The University of the Philippines Law Center in conducting orientation briefing for new
lawyers (1974-1975) listed the dimensions of the practice of law in even broader terms as
advocacy, counseling and public service.
"One may be a practicing attorney in following any line of employment in the
profession.  If what he does exacts knowledge of the law and is of a kind usual for
attorneys engaging in the active practice of their profession, and he follows some one or
more lines of employment such as this he is a practicing attorney at law within the
meaning of the statute.'" (Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the application of
law, legal procedure, knowledge, training and experience. "To engage in the practice of
law is to perform those acts which are characteristics of the profession.  Generally, to
practice law is to give notice or render any kind of service, which device or service
requires the use in any degree of legal knowledge or skill." (111 ALR 23)

The following records of the 1986 Constitutional Commission show that it has adopted a
liberal interpretation of the term "practice of law."
"MR. FOZ.  Before we suspend the session, may I make a manifestation which I forgot to
do during our review of the provisions on the Commission on Audit.  May I be allowed to
make a very brief statement?

"THE PRESIDING OFFICER (Mr. Jamir).  The Commissioner will please proceed.

"MR. FOZ.  This has to do with the qualifications of the members of the Commission on
Audit.  Among others, the qualifications provided for by Section 1 is that 'They must be
Members of the Philippine Bar’ —- I am quoting from the provision — 'who have been
engaged in the practice of law for at least ten years.’"

"To avoid any misunderstanding which would result in excluding members of the Bar
who are now employed in the COA or Commission on Audit, we would like to make the
clarification that this provision on qualifications regarding members of the Bar does not
necessarily refer or involve actual practice of law outside the COA.  We have to interpret
this to mean that as long as the lawyers who are employed in the COA are using their
legal knowledge or legal talent in their respective work within COA, then they are
qualified to be considered for appointment as members or commissioners, even
chairman, of the Commission on Audit.

"This has been discussed by the Committee on Constitutional Commissions and Agencies
and we deem it important to take it up on the floor so that this interpretation may be made
available whenever this provision on the qualifications as regards members of the
Philippine Bar engaging in the practice of law for at least ten years is taken up.

"MR. OPLE.  Will Commissioner Foz yield to just one question.

"MR. FOZ.  Yes, Mr. Presiding Officer.

"MR. OPLE.  Is he, in effect, saying that service in the COA by a lawyer is equivalent to
the requirement of a law practice that is set forth in the Article on the Commission on
Audit?

"MR. FOZ.  We must consider the fact that the work of COA, although it is auditing, will
necessarily involve legal work:  it will involve legal work. And, therefore, lawyers who
are employed in COA now would have the necessary qualifications in accordance with
the provision on qualifications under our provisions on the Commission on Audit.  And,
therefore, the answer is yes.

"MR. OPLE.  Yes.  So that the construction given to this is that this is equivalent to the
practice of law.

"MR. FOZ.  Yes, Mr. Presiding Officer.

"Mr. OPLE, Thank you."

x x x (Italics supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the
Chairman and two Commissioners of the Commission on Audit (COA) should either be
certified public accountants with not less than ten years of auditing practice, or members
of the Philippine Bar who have been engaged in the practice of law for at least ten years. 
(Italics supplied)

Corollary to this is the term "private practitioner" and which is in many ways
synonymous with the word "lawyer." Today, although many lawyers do not engage in
private practice, it is still a fact that the majority of lawyers are private practitioners. 
(Gary Munneke, Opportunities in Law Careers [VGM Career Horizons:  Illinois), 1986],
p. 15]).

At this point, it might be helpful to define private practice.  The term, as commonly

understood, means "an individual or organization engaged in the business of delivering
legal services." (Ibid.).  Lawyers who practice alone are often called "sole practitioners."
Groups of lawyers are called "firms." The firm is usually a partnership and members of
the firm are the partners.  Some firms may be organized as professional corporations and
the members called shareholders.  In either case, the members of the firm are the
experienced attorneys.  In most firms, there are younger or more inexperienced salaried
attorneys called "associates." (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is
essentially tautologous, unhelpfully defining the practice of law as that which lawyers
do.  (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota,
1986], p. 593).  The practice of law is defined as "the performance of any acts . . . in or
out of court, commonly understood to be the practice of law.  (State Bar Ass'n v.
Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958]
[quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]).  Because
lawyers perform almost every function known in the commercial and governmental
realm, such a definition would obviously be too global to be workable.  (Wolfram, op.
cit.).

The appearance of a lawyer in litigation in behalf of a client is at once the most publicly
familiar role for lawyers as well as an uncommon role for the average lawyer.  Most
lawyers spend little time in courtrooms, and a large percentage spend their entire practice
without litigating a case.  (Ibid., p. 593).  Nonetheless, many lawyers do continue to
litigate and the litigating lawyer's role colors much of both the public image and the self-
perception of the legal profession.  (Ibid.).

In this regard thus, the dominance of litigation in the public mind reflects history, not
reality.  (Ibid.).  Why is this so?  Recall that the late Alexander SyCip, a corporate
lawyer, once articulated on the importance of a lawyer as a business counselor in this
wise:  "Even today, there are still uninformed laymen whose concept of an attorney is one
who principally tries cases before the courts.  The members of the bench and bar and the
informed laymen such as businessmen, know that in most developed societies today,
substantially more legal work is transacted in law offices than in the courtrooms.  General
practitioners of law who do both litigation and non-litigation work also know that in most
cases they find themselves spending more time doing what [is] loosely describe[d] as
business counseling than in trying cases.  The business lawyer has been described as the
planner, the diagnostician and the trial lawyer, the surgeon.  I[t] need not [be] stress[ed]
that in law, as in medicine, surgery should be avoided where internal medicine can be
effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In the course of a working day the average general practitioner will engage in a number
of legal tasks, each involving different legal doctrines, legal skills, legal processes, legal
institutions, clients, and other interested parties.  Even the increasing numbers of lawyers
in specialized practice will usually perform at least some legal services outside their
specialty.  And even within a narrow specialty such as tax practice, a lawyer will shift
from one legal task or role such as advice-giving to an importantly different one such as
representing a client before an administrative agency.  (Wolfram, supra, p. 687).

By no means will most of this work involve litigation, unless the lawyer is one of the
relatively rare types — a litigator who specializes in this work to the exclusion of much
else.  Instead, the work will require the lawyer to have mastered the full range of
traditional lawyer skills of client counseling, advice-giving, document drafting, and
negotiation.  And increasingly lawyers find that the new skills of evaluation and
mediation are both effective for many clients and a source of employment.  (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that is
constrained in very important ways, at least theoretically, so as to remove from it some of
the salient features of adversarial litigation.  Of these special roles, the most prominent is
that of prosecutor.  In some lawyers' work the constraints are imposed both by the nature
of the client and by the way in which the lawyer is organized into a social unit to perform
that work.  The most common of these roles are those of corporate practice and
government legal service.  (Ibid.).

In several issues of the Business Star, a business daily, hereinbelow quoted are emerging
trends in corporate law practice, a departure from the traditional concept of practice of
law.
We are experiencing today what truly may be called a revolutionary transformation in
corporate law practice.  Lawyers and other professional groups, in particular those
members participating in various legal-policy decisional contexts, are finding that
understanding the major emerging trends in corporation law is indispensable to intelligent
decision-making.

Constructive adjustment to major corporate problems of today requires an accurate

understanding of the nature and implications of the corporate law research function
accompanied by an accelerating rate of information accumulation.  The recognition of the
need for such improved corporate legal policy formulation, particularly "model-making"
and "contingency planning," has impressed upon us the inadequacy of traditional
procedures in many decisional contexts.

In a complex legal problem the mass of information to be processed, the sorting and
weighing of significant conditional factors, the appraisal of major trends, the necessity of
estimating the consequences of given courses of action, and the need for fast decision and
response in situations of acute danger have prompted the use of sophisticated concepts of
information flow theory, operational analysis, automatic data processing, and electronic
computing equipment.  Understandably, an improved decisional structure must stress the
predictive component of the policy-making process, wherein a "model", of the decisional
context or a segment thereof is developed to test projected alternative courses of action in
terms of futuristic effects flowing therefrom.

Although members of the legal profession are regularly engaged in predicting and
projecting the trends of the law, the subject of corporate finance law has received
relatively little organized and formalized attention in the philosophy of advancing
corporate legal education.  Nonetheless, a cross-disciplinary approach to legal research
has become a vital necessity.

Certainly, the general orientation for productive contributions by those trained primarily
in the law can be improved through an early introduction to multi-variable decisional
contexts and the various approaches for handling such problems.  Lawyers, particularly
with either a master's or doctorate degree in business administration or management,
functioning at the legal-policy level of decision-making now have some appreciation for
the concepts and analytical techniques of other professions which are currently engaged
in similar types of complex decision-making.

Truth to tell, many situations involving corporate finance problems would require the
services of an astute attorney because of the complex legal implications that arise from
each and every necessary step in securing and maintaining the business issue raised. 
(Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In our litigation-prone country, a corporate lawyer is assiduously referred to as the

"abogado de campanilla." He is the "big-time" lawyer, earning big money and with a
clientele composed of the tycoons and magnates of business and industry.

Despite the growing number of corporate lawyers, many people could not explain what it
is that a corporate lawyer does.  For one, the number of attorneys employed by a single
corporation will vary with the size and type of the corporation.  Many smaller and some
large corporations farm out all their legal problems to private law firms.  Many others
have in-house counsel only for certain matters.  Other corporations have a staff large
enough to handle most legal problems in-house.

A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs
of a corporation.  His areas of concern or jurisdiction may include, inter alia:  corporate
legal research, tax laws research, acting out as corporate secretary (in board meetings),
appearances in both courts and other adjudicatory agencies (including the Securities and
Exchange Commission), and in other capacities which require an ability to deal with the
law.

At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of
the business of the corporation he is representing.  These include such matters as
determining policy and becoming involved in management.  (Italics supplied)

In a big company, for example, one may have a feeling of being isolated from the action,
or not understanding how one's work actually fits into the work of the organization.  This
can be frustrating to someone who needs to see the results of his work first hand.  In
short, a corporate lawyer is sometimes offered this fortune to be more closely involved in
the running of the business.

Moreover, a corporate lawyer's services may sometimes be engaged by a multinational

corporation (MNC).  Some large MNCs provide one of the few opportunities available to
corporate lawyers to enter the international law field.  After all, international law is
practiced in a relatively small number of companies and law firms.  Because working in a
foreign country is perceived by many as glamorous, this is an area coveted by corporate
lawyers.  In most cases, however, the overseas jobs go to experienced attorneys while the
younger attorneys do their "international practice" in law libraries.  (Business Star,
"Corporate Law Practice," May 25, 1990, p. 4).

This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance.  To
borrow the lines of Harvard-educated lawyer Bruce Wassertein, to wit:  "A bad lawyer is
one who fails to spot problems, a good lawyer is one who perceives the difficulties, and
the excellent lawyer is one who surmounts them." (Business Star, "Corporate Finance
Law," Jan. 11, 1989, p. 4)

Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. 
No longer are we talking of the traditional law teaching method of confining the subject
study to the Corporation Code and the Securities Code but an incursion as well into the
intertwining modern management issues.

Such corporate legal management issues deal primarily with three (3) types of learning: 
(1) acquisition of insights into current advances which are of particular significance to the
corporate counsel; (2) an introduction to usable disciplinary skills applicable to a
corporate counsel's management responsibilities; and (3) a devotion to the organization
and management of the legal function itself.

These three subject areas may be thought of as intersecting circles, with a shared area
linking them.  Otherwise known as "intersecting managerial jurisprudence," it forms a
unifying theme for the corporate counsel's total learning.

Some current advances in behavior and policy sciences affect the counsel's role.  For that
matter, the corporate lawyer reviews the globalization process, including the resulting
strategic repositioning that the firms he provides counsel for are required to make, and
the need to think about a corporation's strategy at multiple levels.  The salience of the
nation-state is being reduced as firms deal both with global multinational entities and
simultaneously with sub-national governmental units.  Firms increasingly collaborate not
only with public entities but with each other — often with those who are competitors in
other arenas.

Also, the nature of the lawyer's participation in decision-making within the corporation
is rapidly changing.  The modern corporate lawyer has gained a new role as a
stakeholder — in some cases participating in the organization and operations of
governance through participation on boards and other decision-making roles.  Often
these new patterns develop alongside existing legal institutions and laws are perceived as
barriers.  These trends are complicated as corporations organize for global operations.
(Italics supplied)
The practicing lawyer of today is familiar as well with governmental policies toward the
promotion and management of technology.  New collaborative arrangements for
promoting specific technologies or competitiveness more generally require approaches
from industry that differ from older, more adversarial relationships and traditional forms
of seeking to influence governmental policies.  And there are lessons to be learned from
other countries.  In Europe, Esprit, Eureka and Race are examples of collaborative efforts
between governmental and business Japan's MITI is world famous.  (Italics supplied)

Following the concept of boundary spanning, the office of the Corporate Counsel
comprises a distinct group within the managerial structure of all kinds of organizations. 
Effectiveness of both long-term and temporary groups within organizations has been
found to be related to indentifiable factors in the group-context interaction such as the
groups actively revising their knowledge of the environment, coordinating work with
outsiders, promoting team achievements within the organization.  In general, such
external activities are better predictors of team performance than internal group
processes.

In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis
the managerial mettle of corporations are challenged.  Current research is seeking ways
both to anticipate effective managerial procedures and to understand relationships of
financial liability and insurance considerations.  (Underscoring supplied)

Regarding the skills to apply by the corporate counsel, three factors are apropos:

First System Dynamics.  The field of systems dynamics has been found an effective tool
for new managerial thinking regarding both planning and pressing immediate problems. 
An understanding of the role of feedback loops, inventory levels, and rates of flow,
enable users to simulate all sorts of systematic problems — physical, economic,
managerial, social, and psychological.  New programming techniques now make the
systems dynamics principles more accessible to managers — including corporate
counsels. (Italics supplied)

Second Decision Analysis.  This enables users to make better decisions involving
complexity and uncertainty.  In the context of a law department, it can be used to
appraise the settlement value of litigation, aid in negotiation settlement, and minimize the
cost and risk involved in managing a portfolio of cases.  (Italics supplied)

Third Modeling for Negotiation Management.  Computer-based models can be used

directly by parties and mediators in all kinds of negotiations.  All integrated set of such
tools provide coherent and effective negotiation support, including hands-on on
instruction in these techniques.  A simulation case of an international joint venture may
be used to illustrate the point.
[Be this as it may,] the organization and management of the legal function, concern three
pointed areas of consideration, thus:

Preventive Lawyering.  Planning by lawyers requires special skills that comprise a major
part of the general counsel's responsibilities.  They differ from those of remedial law. 
Preventive lawyering is concerned with minimizing the risks of legal trouble and
maximizing legal rights for such legal entities at that time when transactional or similar
facts are being considered and made.

Managerial Jurisprudence.  This is the framework within which are undertaken those
activities of the firm to which legal consequences attach.  It needs to be directly
supportive of this nation's evolving economic and organizational fabric as firms change to
stay competitive in a global, interdependent environment.  The practice and theory of
"law" is not adequate today to facilitate the relationships needed in trying to make a
global economy work.

Organization and Functioning of the Corporate Counsel's Office.  The general counsel
has emerged in the last decade as one of the most vibrant subsets of the legal profession. 
The corporate counsel bear responsibility for key aspects of the firm's strategic issues,
including structuring its global operations, managing improved relationships with an
increasingly diversified body of employees, managing expanded liability exposure,
creating new and varied interactions with public decision-makers, coping internally with
more complex make or by decisions.

This whole exercise drives home the thesis that knowing corporate law is not enough to
make one a good general corporate counsel nor to give him a full sense of how the legal
system shapes corporate activities.  And even if the corporate lawyer's aim is not to
understand all of the law's effects on corporate activities, he must, at the very least, also
gain a working knowledge of the management issues if only to be able to grasp not only
the basic legal "constitution" or make-up of the modern corporation.  (Business
Star, "The Corporate Counsel," April 10, 1991, p. 4)..

The challenge for lawyers (both of the bar and the bench) is to have more than a passing
knowledge of financial law affecting each aspect of their work.  Yet, many would admit
to ignorance of vast tracts of the financial law territory.  What transpires next is a
dilemma of professional security:  Will the lawyer admit ignorance and risk opprobrium?;
or will he feign understanding and risk exposure? (Business Star, "Corporate Finance
law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino to the
position of Chairman of the COMELEC in a letter received by the Secretariat of the
Commission on Appointments on April 25, 1991.  Petitioner opposed the nomination
because allegedly Monsod does not possess the required qualification of having been
engaged in the practice of law for at least ten years.
On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod
as Chairman of the COMELEC.  On June 18, 1991, he took his oath of office.  On the
same day, he assumed office as Chairman of the COMELEC.

Challenging the validity of the confirmation by the Commission on Appointments of

Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant petition
for Certiorari and Prohibition praying that said confirmation and the consequent
appointment of Monsod as Chairman of the Commission on Elections be declared null
and void.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar
examinations of 1960 with a grade of 86.55%.  He has been a dues paying member of the
Integrated Bar of the Philippines since its inception in 1972-73.  He has also been paying
his professional license fees as a lawyer for more than ten years. (p. 124, Rollo)

After graduating from the College of Law (U.P.) and having hurdled the bar, Atty.
Monsod worked in the law office of his father.  During his stint in the World Bank Group
(1963-1970), Monsod worked as an operations officer for about two years in Costa Rica
and Panama, which involved getting acquainted with the laws of member-countries,
negotiating loans and coordinating legal, economic, and project work of the Bank. 
Upon returning to the Philippines in 1970, he worked with the Meralco Group, served as
chief executive officer of an investment bank and subsequently of a business
conglomerate, and since 1986, has rendered services to various companies as a legal
and economic consultant or chief executive officer.  As former Secretary-General (1986)
and National Chairman (1987) of NAMFREL, Monsod's, work involved being
knowledgeable in election law.  He appeared for NAMFREL in its accredition hearings
before the Comelec.  In the field of advocacy, Monsod, in his personal capacity and as
former Co-Chairman of the Bishops Businessmen's Conference for Human Development,
has worked with the under privileged sectors, such as the farmer and urban poor groups,
in initiating, lobbying for and engaging in affirmative action for the agrarian reform law
and lately the urban land reform bill.  Monsod also made use of his legal knowledge as a
member of the Davide Commission, a guasi-judicial body, which conducted numerous
hearings (1990) and as a member of the Constitutional Commission (1986-1987), and
Chairman of its Committee on Accountability of Public Officers, for which he was cited
by the President of the Commission, Justice Cecilia-Munoz-Palma for "innumerable
amendments to reconcile government functions with individual freedoms and public
accountability and the party-list system for the House of Representative." (pp. 128-
129 Rollo) (Italics supplied)

Just a word about the work of a negotiating team of which Atty. Monsod used to be a
member.
In a loan agreement, for instance, a negotiating panel acts as a team, and which is
adequately constituted to meet the various contingencies that arise during a negotiation. 
Besides top officials of the Borrower concerned, there are the legal officer (such as the
legal counsel), the finance manager, and an operations officer (such as an official
involved in negotiating the contracts) who comprise the members of the team. 
(Guillermo V. Soliven, "Loan Negotiating Strategies for Developing Country
Borrowers," Staff Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11).
(Underscoring supplied)

After a fashion, the loan agreement is like a country's Constitution; it lays down the law
as far as the loan transaction is concerned.  Thus, the meat of any Loan Agreement can be
compartmentalized into five (5) fundamental parts:  (1) business terms; (2) borrower's
representation; (3) conditions of closing; (4) covenants; and (5) events of default.  (Ibid.,
p. 13).

In the same vein, lawyers play an important role in any debt restructuring program.  For
aside from performing the tasks of legislative drafting and legal advising, they score
national development policies as key factors in maintaining their countries' sovereignty. 
(Condensed from the work paper, entitled "Wanted: Development Lawyers for
Developing Nations," submitted by L. Michael Hager, regional legal adviser of the
United States Agency for International Development, during the Session on Law for the
Development of Nations at the Abidjan World Conference in Ivory Coast, sponsored by
the World Peace Through Law Center on August 26-31, 1973).  (Italics supplied)

Loan concessions and compromises, perhaps even more so than purely renegotiation
policies, demand expertise in the law of contracts, in legislation and agreement drafting
and in renegotiation.  Necessarily, a sovereign lawyer may work with an international
business specialist or an economist in the formulation of a model loan agreement.  Debt
restructuring contract agreements contain such a mixture of technical language that they
should be carefully drafted and signed only with the advise of competent counsel in
conjunction with the guidance of adequate technical support personnel.  (See
International Law Aspects of the Philippine External Debts, an unpublished dissertation,
U.S.T. Graduate School of Law, 1987, p. 321).  (Italics supplied)

A critical aspect of sovereign debt restructuring/contract construction is the set of terms

and conditions which determines the contractual remedies for a failure to perform one or
more elements of the contract.  A good agreement must not only define the
responsibilities of both parties, but must also state the recourse open to either party when
the other fails to discharge an obligation.  For a compleat debt restructuring represents a
devotion to that principle which in the ultimate analysis is sine qua non for foreign loan
agreements — an adherence to the rule of law in domestic and international affairs of
whose kind U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. once said; 'They
carry no banners, they beat no drums; but where they are, men learn that bustle and bush
are not the equal of quiet genius and serene mastery.’ (See Ricardo J. Romulo, "The Role
of Lawyers in Foreign Investments," Integrated Bar of the Philippine Journal, Vol. 15,
Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term "practice of law",
particularly the modern concept of law practice, and taking into consideration the liberal
construction intended by the framers of the Constitution, Atty. Monsod's past work
experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of
industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and
the poor - verily more than satisfy the constitutional requirement - that he has been
engaged in the practice of law for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the
Court said:
"Appointment is an essentially discretionary power and must be performed by the officer
in which it is vested according to his best lights, the only condition being that the
appointee should possess the qualifications required by law.  If he does, then the
appointment cannot be faulted on the ground that there are others better qualified who
should have been preferred.  This is a political question involving considerations of
wisdom which only the appointing authority can decide." (italics supplied)
No less emphatic was the Court in the case of Central Bank v. Civil Service Commission,
171 SCRA 744) where it stated:
"It is well-settled that when the appointee is qualified, as in this case, and all the other
legal requirements are satisfied, the Commission has no alternative but to attest to the
appointment in accordance with the Civil Service Law.  The Commission has no
authority to revoke an appointment on the ground that another person is more qualified
for a particular position.  It also has no authority to direct the appointment of a substitute
of its choice.  To do so would be an encroachment on the discretion vested upon the
appointing authority.  An appointment is essentially within the discretionary power of
whomsoever it is vested, subject to the only condition that the appointee should possess
the qualifications required by law." (Italics supplied)
The appointing process in a regular appointment as in the case at bar, consists of four (4)
stages:  (1) nomination; (2) confirmation by the Commission on Appointments; (3)
issuance of a commission (in the Philippines, upon submission by the Commission on
Appointments of its certificate of confirmation, the President issues the permanent
appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc.... (Lacson v.
Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)

The power of the Commission on Appointments to give its consent to the nomination of
Monsod as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-
Article C, Article IX of the Constitution which provides:
"The Chairman and the Commissioners shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without
reappointment.  Of those first appointed, three Members shall hold office for seven years,
two Members for five years, and the last Members for three years, without
reappointment.  Appointment to any vacancy shall be only for the unexpired term of the
predecessor.  In no case shall any Member be appointed or designated in a temporary or
acting capacity."
Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the
practice of law is the traditional or stereotyped notion of law practice, as distinguished
from the modern concept of the practice of law, which modern connotation is exactly
what was intended by the eminent framers of the 1987 Constitution.  Moreover, Justice
Padilla's definition would require generally a habitual law practice, perhaps practised two
or three times a week and would outlaw say, law practice once or twice a year for ten
consecutive years.  Clearly, this is far from the constitutional intent.

Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written
opinion, I made use of a definition of law practice which really means nothing because
the definition says that law practice "... is what people ordinarily mean by the practice of
law." True I cited the definition but only by way of sarcasm as evident from my statement
that the definition of law practice by "traditional areas of law practice is
essentially tautologous" or defining a phrase by means of the phrase itself that is being
defined.

Justice Cruz goes on to say in substance that since the law covers almost all situations,
most individuals, in making use of the law, or in advising others on what the law means,
are actually practicing law.  In that sense, perhaps, but we should not lose sight of the fact
that Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practicing
law for over ten years.  This is different from the acts of persons practicing law, without
first becoming lawyers.

Justice Cruz also says that the Supreme Court can even disqualify an elected President of
the Philippines, say, on the ground that he lacks one or more qualifications.  This matter,
I greatly doubt.  For one thing, how can an action or petition be brought against the
President? And even assuming that he is indeed disqualified, how can the action be
entertained since he is the incumbent President?

We now proceed:

The Commission on the basis of evidence submitted during the public hearings on
Monsod's confirmation, implicitly determined that he possessed the necessary
qualifications as required by law.  The judgment rendered by the Commission in the
exercise of such an acknowledged power is beyond judicial interference except only upon
a clear showing of a grave abuse of discretion amounting to lack or excess of
jurisdiction.  (Art. VIII, Sec. 1 Constitution).  Thus, only where such grave abuse of
discretion is clearly shown shall the Court interfere with the Commission's judgment.  In
the instant case, there is no occasion for the exercise of the Court's corrective power,
since no abuse, much less a grave abuse of discretion, that would amount to lack or
excess of jurisdiction and would warrant the issuance of the writs prayed, for has been
clearly shown.

Additionally, consider the following:

  (1) If the Commission on Appointments rejects a nominee by the President, may the

Supreme Court reverse the Commission, and thus in effect confirm the appointment?
Clearly, the answer is in the negative.
   
  (2) In the same vein, may the Court reject the nominee, whom the Commission
has confirmed? The answer is likewise clear.
   
  (3) If the United States Senate (which is the confirming body in the U.S. Congress)
decides to confirm a Presidential nominee, it would be incredible that the U.S.
Supreme Court would still reverse the U.S. Senate.

Finally, one significant legal maxim is:

"We must interpret not by the letter that killeth, but by the spirit that giveth life."
Take this hypothetical case of Samson and Delilah.  Once, the procurator of Judea asked
Delilah (who was Samson's beloved) for help in capturing Samson. Delilah agreed on
condition that —
"No blade shall touch his skin; No blood shall flow from his veins."
When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron
rod burning white-hot two or three inches away from in front of Samson's eyes.  This
blinded the man.  Upon hearing of what had happened to her beloved, Delilah was beside
herself with anger, and fuming with righteous fury, accused the procurator of reneging on
his word.  The procurator calmly replied:  "Did any blade touch his skin? Did any blood
flow from his veins?" The procurator was clearly relying on the letter, not the spirit of the
agreement.

IN VIEW OF THE FOREGOING, this petition is hereby DISMISSED.

SO ORDERED.

[ G.R. No. L-26065, May 03, 1968 ]

GERONIMO B. ZALDIVAR, PETITIONER, VS. HON. NUMERIANO
ESTENZO, JUDGE OF THE COURT OF FIRST INSTANCE OF ORMOC
CITY, AND SOTERO PEPITO, RESPONDENTS.

DECISION
FERNANDO, J.:

The specific question that confronts this Court in this petition for certiorari with
preliminary injunction, one that is novel and unique, is the competence of a court of
first instance to pass upon and entertain a special civil action to prohibit municipal
mayors, presumed to be partial to the candidacy of a congressional candidate, from
appointing special policemen, and agents with the sole purpose, so it is alleged,
to terrorize voters and thus frustrate the basic objective of the Election Code, which is to
assure the free and honest expression of popular will.  Respondent Judge, by no means
free from suspicion of sympathy for the other candidate, had no doubt about his power to
act in the premises.  With unusual celerity and dispatch, he granted ex-parte the
preliminary injunction sought.  This Court is of a different mind.

Such an assumption of jurisdiction, considering that the Commission on Elections is by

the Constitution vested with "exclusive charge of the enforcement and administration of
all laws relative to the conduct of elections * * *,"  is as war with the plain constitutional
[1]

command the implementing statutory provisions, and the hospitable scope afford such

grant of authority so clear and unmistakable in recent decisions.  Moreover, if respondent
Judge were of a similar persuasion, the tradition of impartiality so necessary and vital to
maintain unimpaired respect for the judiciary would have been upheld and the doubts,
whether well-founded or not, as to a court lending its prestige and its authority to favor a
congressional aspirant would not have arisen.

In the language of the petition, dated May 9, 1966, petitioner being

Geronimo Zaldivar and the principal respondent, Judge Numeriano Estenzo, of the Court
of First Instance of Ormoc City, it was filed "for the purpose of setting aside (a) the
decision dated April 28, 1966, rendered by the Honorable Judge Numeriano Estenzo of
the Court of First Instance of Leyte, 13th Judicial District, Fifth Branch, Ormoc City, in
Special Civil Case No. 753-O, entitled ‘Luis Porcare and Sotero Pepito, petitioners,
versus Feliciano Larrazabal, in his official capacity as Mayor of Kananga, Leyte, and
Geronimo Zaldivar, in his official capacity as Mayor of Albuera, Leyte, respondents;’ (b)
the order for the arrest of petitioner issued in said case on the same date that the decision
was promulgated; (c) the warrant of arrest issued pursuant to said order; (d) the order
issued in said case dated November 5, 1965, granting the issuance of a writ of
preliminary injunction; and (e) the writ of preliminary injunction so issued on the same
date, on the ground that said decision, orders, warrant of arrest and writ of preliminary
injunction were issued by the trial court without jurisdiction."[2]

Petitioner was then the incumbent municipal mayor of Albuera, Leyte, named respondent
in the special civil case referred to, while the other respondent, Sotero Pepito, was one of
the petitioners in such case.  The writ of preliminary injunction prayed for was granted by
this Court in a resolution of May 20, 1966, which gave due course to the petition.
While the answer of respondent Judge Estenzo, dated June 15, 1966, contained his own
version of the facts, there is no question that a decision in favor of the petitioner, now
respondent, Pepito, and against the respondent, now petitioner Zaldivar, in the above
special civil action was rendered on April 28, 1966;  an ex-parte order for the issuance of
[3]

a preliminary injunction and the writ itself were issued on the same day the special civil
action was filed;  and the arrest of petitioner immediately followed by a warrant of arrest
[4]

were ordered by respondent Judge. [5]

The decision assailed, as well as the challenged orders and actuations of respondent
Judge, was the direct consequence of his assumption of jurisdiction over the special civil
action of prohibition with preliminary injunction, filed in his court by now
respondent Sotero Pepito, one of the petitioners in that case, along with a certain
Luis Porcare.  As already indicated, had there been more hesitancy and doubt as to his
competence resulting in more circumspection and less eagerness to act on the matter,
respondent Judge might have reached a contrary conclusion as to the correctness of his
assumption of jurisdiction.  The wording of the petition for prohibition with preliminary
injunction, considering the applicable law, ought to have warned and cautioned
respondent Judge against a determination that he could validly act on the premises.

A recital of the contents of the petition will explain why.  The petitioners, both of whom
were municipal councilors and, according to their petition, "local leaders and supporters
of the candidacy for reelection of Congressman Dominador M. Tan, * * *," alleged
that now petitioner Zaldivar, therein named as respondent, with a municipal mayor of
another municipality, a certain Feliciano Larrazabal, "acting in their official capacities as
Municipal Mayors, are known to be sympathetic to the candidacy of Rodolfo Rivilla, and
with grave abuse of discretion have caused to appoint special policemen and agents to
be paid from public funds and to be provided with uniforms and firearms for the sole
purpose of utilizing said special policemen and agents to terrorize and arrest electors
sympathetic to Congressman Dominador M. Tan during the elections of November 9,
1965, in the aforesaid municipalities within the 4th District of Leyte; * * *."  It was the
[6]

contention of petitioners that respondents, as municipal mayors, acted "without and in

excess of their powers as executives of their respective jurisdictions, as no authority or
sanction has been obtained from the Executive Secretary and the Commission on
Elections, and the exercise of such powers would be detrimental to the interest of the
electorate which they are bound to protect."  From which it was their conclusion that
[7]

such "consummation of the intended acts of respondents in their respective jurisdiction

would frustrate the will of the people to vote freely for the men of their choice during the
elections of November 9, 1965.  * * *."  As noted earlier, respondent Judge, based on
[8]

such a petition, decided that he had jurisdiction and saw to it that an order for the
issuance ex-parte of the preliminary injunction was handed down to be followed by the
writ itself on November 5, 1965, the very same day the action was filed.
It thus admits of no doubt that the grievances, if any, of respondent Pepito, as one of the
petitioners in that special civil action before respondent Judge, arose from an alleged
abuse of authority on the part of now petitioner, respondent therein, Zaldivar, as
municipal mayor, in appointing "special policemen and agents" so that they could be
utilized solely for the purpose of terrorizing and arresting voters sympathetic to one of the
congressional candidates and thus frustrating "the will of the people to vote freely for the
men of their choice'' in the election to be held on November 9, 1965.  Nothing could be
clearer then than that such an alleged abuse of power was inextricably linked with the
poll to be held four days later.  As noted in the petition, if successful, such a scheme
would be a denial of the right of the electorate to give free expression to their
convictions.  It is indisputable, therefore, that on its face, the petitioner sought the
avoidance of acts that would be violative of the Election Code, which is designed
primarily to assure that the right to vote on the part of each and every elector be respected
and safeguarded to the fullest extent.

Under the Constitution, the Commission on Elections has “exclusive charge of the
enforcement and administration of all laws relative to the conduct of elections and shall
exercise all other functions which may be conferred upon it by law.”  In the [9]

implementation of the above constitutional prerogative, the Commission on Elections is

vested under the Election Code with "direct and immediate supervision over the
provincial, municipal, and city officials designated by law to perform duties relative to
the conduct of elections."  It could even suspend “from the performance of said duties
[10]

any of said officials who shall fail to comply with its instructions, orders, decisions, or
rulings and appoint their temporary substitutes and, upon recommendation of the
Commission, the President of the Philippines may remove any or all such officials who
shall be found guilty of non-feasance, malfeasance, or misfeasance in connection with the
performance of their duties relative to the conduct of elections."[11]

In the special civil action for prohibition before respondent Judge, its essentially political
character is manifest, the main allegation being the alleged utilization of the power of
petitioner Zaldivar, municipal mayor named respondent therein, to avail himself of the
authority of his office to appoint special policemen or agents to terrorize voters so that
they would support the congressional candidate of his choice.  Both under the
Constitution and the Revised Election Code, it is not so much the power, but the duty of
the Commission on Elections to exercise supervision over municipal officials precisely to
enforce the Election Code.  No other agency is better suited to preclude abuse of
authority on the part of local officials, the sanction being that it could recommend to the
President their removal if found guilty of "non-feasance, malfeasance or misfeasance in
connection with the performance of their duties relative to the conduct of elections." [12]

Moreover, this Court, from the creation of the Commission on Elections, has accorded
full amplitude to the wide discretion vested in the Commission on Elections in the
performance of its constitutional functions.  As early as 1941, in Sumulong v.
Commission on Elections,  full recognition and awareness of the crucial role to be
[13]

played by the Commission in the conduct of elections was evident, the language
employed in the opinion of the then Justice Abad Santos being quite
explicit.  Thus:  "The Commission on Elections is a constitutional body.  It is intended to
play a distinct and important part in our scheme of government.  In the discharge of its
functions, it should not be hampered with restrictions that would be fully warranted in the
case of a less responsible organization.  The Commission may err, so may this court
also.  It should be allowed considerable latitude in devising means and methods that will
insure the accomplishment of the great objective for which it was created free, orderly
and honest elections.  We may not agree fully with its choice of means, but unless these
are clearly illegal or constitute gross abuse of discretion this court should not
interfere.  Politics is a practical matter, and political questions must be dealt with
realistically not from the standpoint of pure theory.  The Commission on Elections,
because of its fact-finding facilities, its contacts with political strategists, and its
knowledge derived from actual experience in dealing with political controversies, is in a
peculiarly advantageous position to decide political questions."

So it has continued up to the present.  To speak of more recent cases, there was stress laid
in Lucas v. Canton  on its "constitutional duty of administering and enforcing the laws
[14]

relative to the conduct of elections with a view to promoting clean and honest elections
the very purpose for which the Commission on Elections was created constitutional
mandate.” As was emphatically observed by Justice Zaldivar, speaking for the Court:  "It
would indeed be absurd to say that the Commission on Elections has a legal duty to
perform and at the same time it is denied the necessary means to perform said duty." The
same trend is evident in three decisions of this Court in December
1967, Espino v. Zaldivar,  Demafiles v. Commission on Elections  and Estrada v.
[15] [16]

Navarro,  and one in January 1968, Ong v. Commission on Elections.

[17] [18]

The question may be asked:  Why should not the judiciary be a co-participant in this
particular instance of enforcing the Election Code as its authority was invoked?  The
obvious answer is the literal language of the Constitution which empowers the
Commission on Elections to "have exclusive charge of the enforcement and
administration of all laws relative to the conduct of the elections." Moreover, as was so
aptly observed by the then Justice Frankfurter, although the situation confronting the
United States Supreme Court was of a different character:  "Nothing is clearer than that
this controversy concerns matters that bring courts into immediate and active
relations with party contests.  From the determination of such issues this Court has
traditionally held aloof.  It is hostile to a democratic system to involve the judiciary in the
politics of the people.  And it is not less pernicious if such judicial intervention in an
essentially political contest be dressed up in the abstract phrases of the law."  Then too
[19]

reference by analogy may be made to the principle that sustains Albano v. Arranz.  For

even without the express constitutional prescription that only this Court may review the
decisions, orders and rulings of the Commission on Elections, it is easy to understand
why no interference whatsoever with the performance of the Commission on Elections of
its functions should be allowed unless emanating from this Court.  The observation of
Acting Chief Justice J.B.L. Reyes in Albano v. Arranz,  while not precisely in point,
[20]

indicates the proper approach.  Thus:  “It is easy to realize the chaos that would ensue if
the Court of First Instance of each and every province were to arrogate unto itself the
power to disregard, suspend, or contradict any order of the Commission on Elections; that
constitutional body would be speedily reduced to impotence.”

This conclusion finds support from a consideration of weight and influence.  What

happened in this case could be repeated elsewhere.  It is not improbable that courts of
first instance would be resorted to by leaders of candidates or political factions
entertaining the belief whether rightly or wrongly that local officials would employ all
the power at their command to assure the victory of their candidates.  Even if greater care
and circumspection, than did exist in this case, would be employed by judges thus
appealed to, it is not unlikely that the shadow of suspicion as to alleged partisanship
would fall on their actuations, whichever way the matter before them is decided.  It
is imperative that the faith in the impartiality of the judiciary be preserved
unimpaired.  Whenever, therefore, the fear may be plausibly entertained that an
assumption of jurisdiction would lead to a lessening of the undiminished trust that should
be reposed in the courts and the absence of authority discernible from the wording of
applicable statutory provisions and the trend of judicial decisions, even if no
constitutional mandate as that present in this case could be relied upon, there should be
no hesitancy in declining to act.

One last point.  The north expected of a judge, expressed in language both lucid and
forceful by Justice Dizon, bears reiteration:  "It has been said, in fact, that due process of
law requires a hearing before an impartial and disinterested tribunal, and that every
litigant is entitled to nothing less than the cold neutrality of an impartial judge * *
*.  Moreover, second only to the duty of rendering a just decision, is the duty of doing it
in a manner that will not arouse any suspicion as to its fairness and the integrity of the
Judge."  It is difficult enough to attain the ideal of a presiding judge being "wholly free,
[21]

disinterested, impartial and independent," as was noted in the Gutierrez decision.  It

becomes doubly difficult for such qualities to be in evidence whenever the matter before
him is so enmeshed and so intertwined with partisan considerations that even if he could
justly lay claim to such attributes, he still would be susceptible to the suspicion, by
whichever group may feel that its just claim is rejected, that he acted not in accordance
with the cold dictates of reason, but with the promptings and urgings of his sympathy and
predilections in whatever direction they may lie.  To repeat, the conclusion reached as to
the lack of jurisdiction of the courts of first instance in litigations of this character would
go far in fortifying and bolstering the belief in the reality of a truly independent judiciary,
free from partisanship and aloof from politics.
WHEREFORE, the writ for certiorari prayed for is granted; the decision rendered by
respondent Judge on April 28, 1966, in Special Civil Case No. 753-0 in his sala, the order
for the arrest of petitioner, the warrant of arrest, the order dated November
5, 1966, granting the issuance of a writ of preliminary injunction; and the writ of
preliminary injunction so issued on the same date set aside; and preliminary injunction
issued by this Court dated May 26, 1966 made permanent.  No special pronouncement as
to costs.

EN BANC
[ G.R. No. 209835, September 22, 2015 ]
ROGELIO BATIN CABALLERO, PETITIONER, VS. COMMISSION ON
ELECTIONS AND JONATHAN ENRIQUE V. NANUD, JR., RESPONDENTS.

DECISION

PERALTA, J.:

Before us is a petition for certiorari with prayer for issuance of a temporary restraining

order seeking to set aside the Resolution[1] dated November 6, 2013 of the Commission
on Elections (COMELEC) En Banc which affirmed in toto the Resolution[2] dated May 3,
2013 of the COMELEC First Division canceling the Certificate of Candidacy (COC) of
petitioner Rogelio Batin Caballero.

Petitioner[3] and private respondent Jonathan Enrique V. Nanud, Jr.[4] were both

candidates for the mayoralty position of the Municipality of Uyugan, Province of Batanes
in the May 13, 2013 elections. Private respondent filed a Petition[5] to deny due course to
or cancellation of petitioner's certificate of candidacy alleging that the latter made a false
representation when he declared in his COC that he was eligible to run for Mayor of
Uyugan, Batanes despite being a Canadian citizen and a nonresident thereof.

During the December 10, 2012 conference, petitioner, through counsel, manifested that
he was not properly served with a copy of the petition and the petition was served by
registered mail not in his address in Barangay Imnajbu, Uyugan, Batanes. He, however,
received a copy of the petition during the conference. Petitioner did not file an Answer
but filed a Memorandum controverting private respondent's substantial allegations in his
petition.

Petitioner argued that prior to the filing of his COC on October 3, 2012, he took an Oath
of Allegiance to the Republic of the Philippines before the Philippine Consul General in
Toronto, Canada on September 13, 2012 and became a dual Filipino and Canadian citizen
pursuant to Republic Act (RA) No. 9225, otherwise known as the Citizenship Retention
and Reacquisition Act of 2003. Thereafter, he renounced his Canadian citizenship and
executed an Affidavit of Renunciation before a Notary Public in Batanes on October 1,
2012 to conform with Section 5(2) of RA No. 9225.[6] He claimed that he did not lose his
domicile of origin in Uyugan, Batanes despite becoming a Canadian citizen as he merely
left Uyugan temporarily to pursue a brighter future for him and his family; and that he
went back to Uyugan during his vacation while working in Nigeria, California, and
finally in Canada.

On May 3, 2013, the COMELEC First Division issued a Resolution finding that
petitioner made a material misrepresentation in his COC when he declared that he is a
resident of Barangay Imnajbu, Uyugan, Batanes within one year prior to the election. The
decretal portion of the resolution reads:

WHEREFORE, premises considered, this Commission RESOLVED, as it hereby

RESOLVES to GRANT the instant Petition. The Certificate of Candidacy of respondent
Caballero is hereby CANCELLED.[7]

The COMELEC First Division did not discuss the procedural deficiency raised by
petitioner as he was already given a copy of the petition and also in consonance with the
Commission's constitutional duty of determining the qualifications of petitioner to run for
elective office. It found that while petitioner complied with the requirements of RA No.
9225 since he had taken his Oath of Allegiance to the Philippines and had validly
renounced his Canadian citizenship, he failed to comply with the other requirements
provided under RA No. 9225 for those seeking elective office, i.e., persons who
renounced their foreign citizenship must still comply with the one year residency
requirement provided for under Section 39 of the Local Government Code. Petitioner's
naturalization as a Canadian citizen resulted in the abandonment of his domicile of origin
in Uyugan, Batanes; thus, having abandoned his domicile of origin, it is incumbent upon
him to prove that he was able to reestablish his domicile in Uyugan for him to be eligible
to run for elective office in said locality which he failed to do.

Elections were subsequently held on May 13, 2013 and the election returns showed that
petitioner won over private respondent.[8] Private respondent filed an Urgent Ex-
parte Motion to Defer Proclamation.[9]

On May 14, 2013, petitioner was proclaimed Mayor of Uyugan, Batanes.

On May 16, 2013, petitioner filed a Motion for Reconsideration with the COMELEC En
Banc assailing the May 3, 2013 Resolution issued by the COMELEC's First Division
canceling his COC.
On May 17, 2013, private respondent filed a Petition to Annul Proclamation.[10]

On November 6, 2013, the COMELEC En Banc issued its assailed Resolution denying
petitioner's motion for reconsideration.

Petitioner filed with us the instant petition for certiorari with prayer for the issuance of a
temporary restraining order.

In the meantime, private respondent filed a Motion for Execution[11] of the May 3, 2013
Resolution of the COMELEC First Division as affirmed by the En Banc and prayed for
the cancellation of petitioner's COC, the appropriate correction of the certificate of
canvas to reflect that all votes in favor of petitioner are stray votes, declaration of nullity
of petitioner's proclamation and proclamation of private respondent as the duly-elected
Mayor of Uyugan, Batanes in the May 13, 2013 elections.

On December 12, 2013, COMELEC Chairman Sixto S. Brillantes, Jr. issued a Writ of
Execution.[12] Private respondent took his Oath of Office[13] on December 20, 2013.

In the instant petition for certiorari, petitioner raises the following assignment of errors,

to wit:

THE COMELEC EN BANC GRAVELY ERRED IN DISREGARDING THE CLEAR

IMPORT OF PROCEDURAL RULES PROVIDED FOR UNDER COMELEC
RESOLUTION NO. 9523 PROMULGATED ON 25 SEPTEMBER 2012.

THE COMELEC EN BANC GRAVELY ERRED IN FINDING THAT PETITIONER

ABANDONED HIS PHILIPPINE DOMICILE WHEN HE WORKED IN SEVERAL
FOREIGN COUNTRIES FOR "GREENER PASTURE."

EVEN ASSUMING THAT PETITIONER HAS ABANDONED HIS PHILIPPINE

DOMICILE WHEN HE BECAME A CANADIAN CITIZEN, HIS REACQUISITION
OF HIS FILIPINO CITIZENSHIP, TAKING OATH OF ALLEGIANCE TO THE
PHILIPPINE GOVERNMENT NINE (9) MONTHS PRIOR TO HIS ELECTION ON 13
MAY 2013, IS A SUBSTANTIAL COMPLIANCE WITH THE LAW ON
RESIDENCY.[14]

Petitioner contends that when private respondent filed a petition to deny due course or to
cancel his COC with the Office of the Municipal Election Officer of Uyugan, Batanes, a
copy thereof was not personally served on him; that private respondent later sent a copy
of the petition to him by registered mail without an attached affidavit stating the reason
on why registered mail as a mode of service was resorted to. Petitioner argues that private
respondent violated Section 4, paragraphs (1)[15] and (4),[16] Rule 23 of the COMELEC
Rules of Procedure, as amended by COMELEC Resolution No. 9523, thus, his petition to
deny due course or cancel petitioner's certificate of candidacy should have been denied
outright.

We are not convinced.

While private respondent failed to comply with the above-mentioned requirements, the
settled rule, however, is that the COMELEC Rules of Procedure are subject to liberal
construction. Moreover, the COMELEC may exercise its power to suspend its own rules
as provided under Section 4, Rule 1 of their Rules of Procedure.

Sec. 4. Suspension of the Rules. - In the interest of justice and in order to obtain speedy
disposition of all matters pending before the Commission, these rules or any portion
thereof may be suspended by the Commission.

Under this authority, the Commission is similarly enabled to cope with all situations
without concerning itself about procedural niceties that do not square with the need to do
justice, in any case without further loss of time, provided that the right of the parties to a
full day in court is not substantially impaired.[17]

In Hayudini v. COMELEC,[18] we sustained the COMELEC's liberal treatment of

respondent's petition to deny due course or cancel petitioner's COC despite its failure to
comply with Sections 2 and 4 of Rule 23 of the COMELEC Rules of Procedure, as
amended by Resolution No. 9523, i.e., pertaining to the period to file petition and to
provide sufficient explanation as to why his petition was not served personally on
petitioner, respectively, and held that:

As a general rule, statutes providing for election contests are to be liberally construed in
order that the will of the people in the choice of public officers may not be defeated by
mere technical objections. Moreover, it is neither fair nor just to keep in office, for an
indefinite period, one whose right to it is uncertain and under suspicion. It is imperative
that his claim be immediately cleared, not only for the benefit of the winner but for the
sake of public interest, which can only be achieved by brushing aside technicalities of
procedure that protract and delay the trial of an ordinary action. This principle was
reiterated in the cases of Tolentino v. Commission on Elections and De Castro v.
Commission on Elections, where the Court held that "in exercising its powers and
jurisdiction, as defined by its mandate to protect the integrity of elections, the
COMELEC must not be straitjacketed by procedural rules in resolving election disputes."

Settled is the rule that the COMELEC Rules of Procedure are subject to liberal
construction. The COMELEC has the power to liberally interpret or even suspend its
rules of procedure in the interest of justice, including obtaining a speedy disposition of all
matters pending before it. This liberality is for the purpose of promoting the effective and
efficient implementation of its objectives - ensuring the holding of free, orderly, honest,
peaceful, and credible elections, as well as achieving just, expeditious, and inexpensive
determination and disposition of every action and proceeding brought before the
COMELEC. Unlike an ordinary civil action, an election contest is imbued with public
interest. It involves not only the adjudication of private and pecuniary interests of rival
candidates, but also the paramount need of dispelling the uncertainty which beclouds the
real choice of the electorate. And the tribunal has the corresponding duty to ascertain, by
all means within its command, whom the people truly chose as their rightful leader. [19]

Here, we find that the issue raised, i.e., whether petitioner had been a resident of Uyugan,
Batanes at least one (1) year before the elections held on May 13, 2013 as he represented
in his COC, pertains to his qualification and eligibility to run for public office, therefore
imbued with public interest, which justified the COMELEC's suspension of its own rules.
We adopt the COMELEC's s ratiocination in accepting the petition, to wit:

This Commission recognizes the failure of petitioner to comply strictly with the
procedure for filing a petition to deny due course to or cancel certificate of candidacy set
forth in Section 4, Rule 23 of the COMELEC Rules of Procedure as amended by
COMELEC Resolution No. 9523, which requires service of a copy of the petition to
respondent prior to its filing. But then, we should also consider the efforts exerted by
petitioner in serving a copy of his petition to respondent after being made aware that such
service is necessary. We should also take note of the impossibility for petitioner to
personally serve a copy of the petition to respondent since he was in Canada at the time
of its filing as shown in respondent's travel records.

The very purpose of prior service of the petition to respondent is to afford the latter an
opportunity to answer the allegations contained in the petition even prior to the service of
summons by the Commission to him. In this case, respondent was given a copy of the
petition during the conference held on 10 December 2012 and was ultimately accorded
the occasion to rebut all the allegations against him. He even filed a Memorandum
containing his defenses to petitioner's allegations. For all intents and purposes, therefore,
respondent was never deprived of due process which is the very essence of this
Commission's Rules of Procedure.

Even the Supreme Court acknowledges the need for procedural rules to bow to
substantive considerations "through a liberal construction aimed at promoting their
objective of securing a just, speedy and inexpensive disposition of every action and
proceeding, x x x

xxxx

When a case is impressed with public interest, a relaxation of the application of the rules
is in order, x x x.
Unquestionably, the instant case is impressed with public interest which warrants the
relaxation of the application of the [R]ules of [P]rocedure, consistent with the ruling of
the Supreme Court in several cases.[20]

Petitioner next claims that he did not abandon his Philippine domicile. He argues that he
was born and baptized in Uyugan, Batanes; studied and had worked therein for a couple
of years, and had paid his community tax certificate; and, that he was a registered voter
and had exercised his right of suffrage and even built his house therein. He also contends
that he usually comes back to Uyugan, Batanes during his vacations from work abroad,
thus, his domicile had not been lost. Petitioner avers that the requirement of the law in
fixing the residence qualification of a candidate running for public office is not strictly on
the period of residence in the place where he seeks to be elected but on the acquaintance
by the candidate on his constituents' vital needs for their common welfare; and that his
nine months of actual stay in Uyugan, Batanes prior to his election is a substantial
compliance with the law. Petitioner insists that the COMELEC gravely abused its
discretion in canceling his COC.

We are not persuaded.

RA No. 9225, which is known as the Citizenship Retention and Reacquisition Act of

2003, declares that natural-born citizens of the Philippines, who have lost their Philippine
citizenship by reason of their naturalization as citizens of a foreign country, can re-
acquire or retain his Philippine citizenship under the conditions of the law.[21] The law
does not provide for residency requirement for the reacquisition or retention of Philippine
citizenship; nor does it mention any effect of such reacquisition or retention of Philippine
citizenship on the current residence of the concerned natural-born Filipino.[22]

RA No. 9225 treats citizenship independently of residence.[23] This is only logical and

consistent with the general intent of the law to allow for dual citizenship. Since a natural-
born Filipino may hold, at the same time, both Philippine and foreign citizenships, he
may establish residence either in the Philippines or in the foreign country of which he is
also a citizen.[24] However, when a natural-born Filipino with dual citizenship seeks for an
elective public office, residency in the Philippines becomes material. Section 5(2) of FLA
No. 9225 provides:

SEC. 5. Civil and Political Rights and Liabilities. - Those who retain or reacquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:
xxxx

(2) Those seeking elective public office in the Philippines shall meet the qualifications
for holding such public office as required by the Constitution and existing laws and, at
the time of the filing of the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before any public officer authorized to
administer an oath.

Republic Act No. 7160, which is known as the Local Government Code of

1991, provides, among others, for the qualifications of an elective local official. Section
39 thereof states:

SEC. 39. Qualifications. - (a) An elective local official must be a citizen of the

Philippines; a registered voter in the barangay, municipality, city or province or, in the
case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or
sanggunian bayan, the district where he intends to be elected; a resident therein for at
least one (1) year immediately preceding the day of the election; and able to read and
write Filipino or any other local language or dialect.

Clearly, the Local Government Code requires that the candidate must be a resident of the
place where he seeks to be elected at least one year immediately preceding the election
day. Respondent filed the petition for cancellation of petitioner's COC on the ground that
the latter made material misrepresentation when he declared therein that he is a resident
of Uyugan, Batanes for at least one year immediately preceeding the day of elections.

The term "residence" is to be understood not in its common acceptation as referring to

"dwelling" or "habitation," but rather to "domicile" or legal residence,[25] that is, "the
place where a party actually or constructively has his permanent home, where he, no
matter where he may be found at any given time, eventually intends to return and remain
(animus manendi)."[26] A domicile of origin is acquired by every person at birth. It is
usually the place where the child's parents reside and continues until the same is
abandoned by acquisition of new domicile (domicile of choice). It consists not only in the
intention to reside in a fixed place but also personal presence in that place, coupled with
conduct indicative of such intention.[27]

Petitioner was a natural born Filipino who was born and raised in Uyugan, Batanes. Thus,
it could be said that he had his domicile of origin in Uyugan, Batanes. However, he later
worked in Canada and became a Canadian citizen. In Coquilla v. COMELEC[28] we ruled
that naturalization in a foreign country may result in an abandonment of domicile in the
Philippines. This holds true in petitioner's case as permanent resident status in Canada is
required for the acquisition of Canadian citizenship.[29] Hence, petitioner had effectively
abandoned his domicile in the Philippines and transferred his domicile of choice in
Canada. His frequent visits to Uyugan, Batanes during his vacation from work in Canada
cannot be considered as waiver of such abandonment.

The next question is what is the effect of petitioner's retention of his Philippine
citizenship under RA No. 9225 on his residence or domicile?

In Japzon v. COMELEC,[30] wherein respondent Ty reacquired his Philippine citizenship

under RA No. 9225 and run for Mayor of General Macarthur, Eastern Samar and whose
residency in the said place was put in issue, we had the occasion to state, thus:

[Petitioner's] reacquisition of his Philippine citizenship under Republic Act No. 9225
had no automatic impact or effect on his residence/domicile. He could still retain his
domicile in the USA, and he did not necessarily regain his domicile in the Municipality
of General Macarthur, Eastern Samar, Philippines. Ty merely had the option to again
establish his domicile in the Municipality of General Macarthur, Eastern Samar,
Philippines, said place becoming his new domicile of choice. The length of his residence
therein shall be determined from the time he made it his domicile of choice, and it shall
not retroact to the time of his birth.[31]

Hence, petitioner's retention of his Philippine citizenship under RA No. 9225 did not
automatically make him regain his residence in Uyugan, Batanes. He must still prove that
after becoming a Philippine citizen on September 13, 2012, he had reestablished Uyugan,
Batanes as his new domicile of choice which is reckoned from the time he made it as
such.

The COMELEC found that petitioner failed to present competent evidence to prove that
he was able to reestablish his residence in Uyugan within a period of one year
immediately preceding the May 13, 2013 elections. It found that it was only after
reacquiring his Filipino citizenship by virtue of RA No. 9225 on September 13, 2012 that
petitioner can rightfully claim that he re-established his domicile in Uyugan, Batanes, if
such was accompanied by physical presence thereat, coupled with an actual intent to
reestablish his domicile there. However, the period from September 13, 2012 to May 12,
2013 was even less than the one year residency required by law.

Doctrinally entrenched is the rule that in a petition for certiorari, findings of fact of

administrative bodies, such as respondent COMELEC in the instant case, are final unless
grave abuse of discretion has marred such factual determinations.[32] Clearly, where there
is no proof of grave abuse of discretion, arbitrariness, fraud or error of law in the
questioned Resolutions, we may not review the factual findings of COMELEC, nor
substitute its own findings on the sufficiency of evidence.[33]

Records indeed showed that petitioner failed to prove that he had been a resident of
Uyugan, Batanes for at least one year immediately preceding the day of elections as
required under Section 39 of the Local Government Code.

Petitioner's argument that his nine (9) months of actual stay in Uyugan, Batanes, prior to
the May 13, 2013 local elections is a substantial compliance with the law, is not
persuasive. In Aquino v. Commission on Elections,[34] we held:

x x x A democratic government is necessarily a government of laws. In a republican

government those laws are themselves ordained by the people. Through their
representatives, they dictate the qualifications necessary for service in government
positions. And as petitioner clearly lacks one of the essential qualifications for running
for membership in the House of Representatives, not even the will of a majority or
plurality of the voters of the Second District of Makati City would substitute for a
requirement mandated by the fundamental law itself.[35]

Petitioner had made a material misrepresentation by stating in his COC that he is a

resident of Uyugan, Batanes for at least one (1) year immediately proceeding the day of
the election, thus, a ground for a petition under Section 78 of the Omnibus Election Code.
Section 74, in relation to Section 78, of the OEC governs the cancellation of, and grant or
denial of due course to COCs, to wit:

SEC. 74. Contents of certificate of candidacy. - The certificate of candidacy shall state

that the person filing it is announcing his candidacy for the office stated therein and that
he is eligible for said office; if for Member of the Batasang Pambansa, the province,
including its component cities, highly urbanized city or district or sector which he seeks
to represent; the political party to which he belongs; civil status; his date of birth;
residence; his post office address for all election purposes; his profession or occupation;
that he will support and defend the Constitution of the Philippines and will maintain true
faith and allegiance thereto; that he will obey the laws, legal orders, and decrees
promulgated by the duly constituted authorities; that he is not a permanent resident or
immigrant to a foreign country; that the obligation imposed by his oath is assumed
voluntarily, without mental reservation or purpose of evasion; and that the facts stated in
the certificate of candidacy are true to the best of his knowledge.

xxxx

SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified

petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
any person exclusively on the ground that any material representation contained therein
as required under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy and
shall be decided, after due notice and hearing, not later than fifteen days before the
election.

We have held that in order to justify the cancellation of COC under Section 78, it is
essential that the false representation mentioned therein pertains to a material matter for
the sanction imposed by this provision would affect the substantive rights of a candidate -
the right to run for the elective post for which he filed the certificate of candidacy. [36] We
concluded that material representation contemplated by Section 78 refers to qualifications
for elective office, such as the requisite residency, age, citizenship or any other legal
qualification necessary to run for a local elective office as provided for in the Local
Government Code.[37] Furthermore, aside from the requirement of materiality, the
misrepresentation must consist of a deliberate attempt to mislead, misinform, or hide a
fact which would otherwise render a candidate ineligible.[38] We, therefore, find no grave
abuse of discretion committed by the COMELEC in canceling petitioner's COC for
material misrepresentation.

WHEREFORE, the petition for certiorari is DISMISSED. The Resolution dated May 3,

2013 of the COMELEC First Division and the Resolution dated November 6, 2013 of the
COMELEC En Banc and are hereby AFFIRMED.

SO ORDERED.

EN BANC
[ G.R. No. 159139, January 13, 2004 ]
INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES,
MA. CORAZON M. AKOL, MIGUEL UY, EDUARDO H. LOPEZ, AUGUSTO
C. LAGMAN, REX C. DRILON, MIGUEL HILADO, LEY SALCEDO, AND
MANUEL ALCUAZ JR., PETITIONERS, VS. COMMISSION ON
ELECTIONS; COMELEC CHAIRMAN BENJAMIN ABALOS SR.;
COMELEC BIDDING AND AWARD COMMITTEE CHAIRMAN EDUARDO
D. MEJOS AND MEMBERS GIDEON DE GUZMAN, JOSE F. BALBUENA,
LAMBERTO P. LLAMAS, AND BARTOLOME SINOCRUZ JR.; MEGA
PACIFIC ESOLUTIONS, INC.; AND MEGA PACIFIC CONSORTIUM,
RESPONDENTS.

DECISION

PANGANIBAN, J.:

There is grave abuse of discretion (1) when an act is done contrary to the Constitution,
the law or jurisprudence;[1] or (2) when it is executed whimsically, capriciously or
arbitrarily out of malice, ill will or personal bias.[2] In the present case, the Commission
on Elections approved the assailed Resolution and awarded the subject Contract not only
in clear violation of law and jurisprudence, but also in reckless disregard of its own
bidding rules and procedure. For the automation of the counting and canvassing of the
ballots in the 2004 elections, Comelec awarded the Contract to “Mega Pacific
Consortium” an entity that had not participated in the bidding. Despite this grant, the poll
body signed the actual automation Contract with “Mega Pacific eSolutions, Inc.,” a
company that joined the bidding but had not met the eligibility requirements.

Comelec awarded this billion—peso undertaking with inexplicable haste, without

adequately checking and observing mandatory financial, technical and legal
requirements. It also accepted the proferred computer hardware and software even if, at
the time of the award, they 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 criteria 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

Because of the foregoing violations of law and the glaring grave abuse of discretion
committed by Comelec, the Court has no choice but to exercise its solemn “constitutional
duty”[3] to void the assailed Resolution and the subject Contract. The illegal, imprudent
and hasty actions of the Commission have not only desecrated legal and jurisprudential
norms, but have also cast serious doubts upon the poll body’s ability and capacity to
conduct automated elections. Truly, the pith and soul of democracy — credible, orderly,
and peaceful elections — has been put in jeopardy by the illegal and gravely abusive acts
of Comelec.

The Case

Before us is a Petition[4] 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);” (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.

The Facts

The following facts are not disputed. They were culled from official documents, the
parties’ pleadings, as well as from admissions during the Oral Argument on October 7,
2003.

On June 7, 1995, Congress passed Republic Act 8046,[5] which authorized Comelec to

conduct a nationwide demonstration of a computerized election system and allowed the
poll body to pilot—test the system in the March 1996 elections in the Autonomous
Region in Muslim Mindanao (ARMM).

On December 22, 1997, Congress enacted Republic Act 8436[6] authorizing Comelec to

use an automated election system (AES) for the process of voting, counting votes and
canvassing/consolidating the results of the national and local elections. It also mandated
the poll body to acquire automated counting machines (ACMs), computer equipment,
devices and materials; and to adopt new electoral forms and printing materials.

Initially intending to implement the automation during the May 11, 1998 presidential
elections, Comelec — in its Resolution No. 2985 dated February 9, 1998[7] — eventually
decided against full national implementation and limited the automation to the
Autonomous Region in Muslim Mindanao (ARMM). However, due to the failure of the
machines to read correctly some automated ballots in one town, the poll body later
ordered their manual count for the entire Province of Sulu.[8]

In the May 2001 elections, the counting and canvassing of votes for both national and
local positions were also done manually, as no additional ACMs had been acquired for
that electoral exercise allegedly because of time constraints.

On October 29, 2002, Comelec adopted in its Resolution 02—0170 a modernization

program for the 2004 elections. It resolved to conduct biddings for the three (3) phases of
its Automated Election System; namely, Phase I — Voter Registration and Validation
System; Phase II — Automated Counting and Canvassing System; and Phase III —
Electronic Transmission.

On January 24, 2003, President Gloria Macapagal—Arroyo issued Executive Order 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.
On January 28, 2003, the Commission issued an “Invitation to Apply for Eligibility and
to Bid,” which we quote as follows:

“INVITATION TO APPLY FOR ELIGIBILITY AND TO BID 

The Commission on Elections (COMELEC), pursuant to the mandate of Republic Act

Nos. 8189 and 8436, invites interested offerors, vendors, suppliers or lessors to apply for
eligibility and to bid for the procurement by purchase, lease, lease with option to
purchase, or otherwise, supplies, equipment, materials and services needed for a
comprehensive Automated Election System, consisting of three (3) phases: (a)
registration/verification of voters, (b) automated counting and consolidation of votes, and
(c) electronic transmission of election results, with an approved budget of TWO
BILLION FIVE HUNDRED MILLION (Php2,500,000,000) Pesos. 

Only bids from the following entities shall be entertained: 

a. Duly licensed Filipino citizens/proprietorships; 

 
b. Partnerships duly organized under the laws of the Philippines and of which at least
sixty percent (60%) of the interest belongs to citizens of the Philippines;  

c. Corporations duly organized under the laws of the Philippines, and of which at
least sixty percent (60%) of the outstanding capital stock belongs to citizens of the
Philippines; 

d. Manufacturers, suppliers and/or distributors forming themselves into a joint

venture, i.e., a group of two (2) or more manufacturers, suppliers and/or
distributors that intend to be jointly and severally responsible or liable for a
particular contract, provided that Filipino ownership thereof shall be at least sixty
percent (60%); and 
 
e. Cooperatives duly registered with the Cooperatives Development Authority.

Bid documents for the three (3) phases may be obtained starting 10 February 2003,
during office hours from the Bids and Awards Committee (BAC) Secretariat/Office of
Commissioner Resurreccion Z. Borra, 7th Floor, Palacio del Governador, Intramuros,
Manila, upon payment at the Cash Division, Commission on Elections, in cash or
cashier’s check, payable to the Commission on Elections, of a non—refundable amount
of FIFTEEN THOUSAND PESOS (Php15,000.00) for each phase. For this purpose,
interested offerors, vendors, suppliers or lessors have the option to participate in any or
all of the three (3) phases of the comprehensive Automated Election System. 
A Pre—Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at the Session
Hall, Commission on Elections, Postigo Street, Intramuros, Manila. Should there be
questions on the bid documents, bidders are required to submit their queries in writing to
the BAC Secretariat prior to the scheduled Pre—Bid Conference. 

Deadline for submission to the BAC of applications for eligibility and bid envelopes for
the supply of the comprehensive Automated Election System shall be at the Session Hall,
Commission on Elections, Postigo Street, Intramuros, Manila on 28 February 2003 at
9:00 a.m.

The COMELEC reserves the right to review the qualifications of the bidders after the
bidding and before the contract is executed. Should such review uncover any
misrepresentation made in the eligibility statements, or any changes in the situation of the
bidder to materially downgrade the substance of such statements, the COMELEC shall
disqualify the bidder upon due notice without any obligation whatsoever for any expenses
or losses that may be incurred by it in the preparation of its bid.”[9]

On February 11, 2003, Comelec issued Resolution No. 5929 clarifying certain eligibility
criteria for bidders and the schedule of activities for the project bidding, as follows: 

“1.) Open to Filipino and foreign corporation duly registered and licensed to do business
and is actually doing business in the Philippines, subject to Sec. 43 of RA 9184 (An Act
providing In the Modernization Standardization and Regulation of the Procurement
Activities of the Government and for other purposes etc.) 

2.) Track Record:

a) For counting machines — should have been used in at least one (1) political exercise
with no less than Twenty Million Voters;   

b) For verification of voters — the reference site of an existing data base installation
using Automated Fingerprint Identification System (AFIS) with at least Twenty Million.

3.) Ten percent (10%) equity requirement shall be based on the total project cost; and 

4.) Performance bond shall be twenty percent (20%) of the bid offer.

RESOLVED moreover, that: 

1) A. Due to the decision that the eligibility requirements and the rest of the Bid
documents shall be released at the same time, and the memorandum of Comm.
Resurreccion Z. Borra dated February 7, 2003, the documents to be released on Friday,
February 14, 2003 at 2:00 o’clock p.m. shall be the eligibility criteria, Terms of
Reference (TOR) and other pertinent documents; 
B. Pre—Bid conference shall be on February 18, 2003; and 

C. Deadline for the submission and receipt of the Bids shall be on March 5, 2003. 

2) The aforementioned documents will be available at the following offices: 

a) Voters Validation: Office of Comm. Javier 

b) Automated Counting Machines: Office of Comm. Borra 

c) Electronic Transmission: Office of Comm. Tancangco”[10]

On February 17, 2003, the poll body released the Request for Proposal (RFP) to procure
the election automation machines. The Bids and Awards Committee (BAC) of Comelec
convened a pre—bid conference on February 18, 2003 and gave prospective bidders until
March 10, 2003 to submit their respective bids.

Among others, the RFP provided that bids from manufacturers, suppliers and/or
distributors forming themselves into a joint venture may be entertained, provided that the
Philippine ownership thereof shall be at least 60 percent. Joint venture is defined in the
RFP as “a group of two or more manufacturers, suppliers and/or distributors that intend
to be jointly and severally responsible or liable for a particular contract.” [11]

Basically, the public bidding was to be conducted under a two—envelope/two stage

system. The bidder’s first envelope or the Eligibility Envelope should establish the
bidder’s eligibility to bid and its qualifications to perform the acts if accepted. On the
other hand, the second envelope would be the Bid Envelope itself. The RFP outlines the
bidding procedures as follows: 

“25. Determination of Eligibility of Prospective Bidders 

“25.1 The eligibility envelopes of prospective Bidders shall be opened first to determine
their eligibility. In case any of the requirements specified in Clause 20 is missing from
the first bid envelope, the BAC shall declare said prospective Bidder as ineligible to bid.
Bid envelopes of ineligible Bidders shall be immediately returned unopened. 

“25.2 The eligibility of prospective Bidders shall be determined using simple ‘pass/fail’
criteria and shall be determined as either eligible or ineligible. If the prospective Bidder is
rated ‘passed’ for all the legal, technical and financial requirements, he shall be
considered eligible. If the prospective Bidder is rated ‘failed’ in any of the requirements,
he shall be considered ineligible. 

“26. Bid Examination/Evaluation 
“26.1 The BAC will examine the Bids to determine whether they are complete, whether
any computational errors have been made, whether required securities have been
furnished, whether the documents have been properly signed, and whether the Bids are
generally in order. 

“26.2 The BAC shall check the submitted documents of each Bidder against the required
documents enumerated under Clause 20, to ascertain if they are all present in the Second
bid envelope (Technical Envelope). In case one (1) or more of the required documents is
missing, the BAC shall rate the Bid concerned as ‘failed’ and immediately return to the
Bidder its Third bid envelope (Financial Envelope) unopened. Otherwise, the BAC shall
rate the first bid envelope as ‘passed’. 

“26.3 The BAC shall immediately open the Financial Envelopes of the Bidders whose
Technical Envelopes were passed or rated on or above the passing score. Only Bids that
are determined to contain all the bid requirements for both components shall be rated
‘passed’ and shall immediately be considered for evaluation and comparison. 

“26.4 In the opening and examination of the Financial Envelope, the BAC shall announce
and tabulate the Total Bid Price as calculated. Arithmetical errors will be rectified on the
following basis: If there is a discrepancy between words and figures, the amount in words
will prevail. If there is a discrepancy between the unit price and the total price that is
obtained by multiplying the unit price and the quantity, the unit price shall prevail and the
total price shall be corrected accordingly. If there is a discrepancy between the Total Bid
Price and the sum of the total prices, the sum of the total prices prevail and the Total Bid
Price shall be corrected accordingly. 

“26.5 Financial Proposals which do not clearly state the Total Bid Price shall be rejected.
Also, Total Bid Price as calculated that exceeds the approved budget for the contract shall
also be rejected. 

27. Comparison of Bids 

27.1 The bid price shall be deemed to embrace all costs, charges and fees associated with
carrying out all the elements of the proposed Contract, including but not limited to,
license fees, freight charges and taxes. 

27.2 The BAC shall establish the calculated prices of all Bids rated ‘passed’ and rank the
same in ascending order.        

xxx   xxx   xxx

“29. Postqualification 
“29.1 The BAC will determine to its satisfaction whether the Bidder selected as having
submitted the lowest calculated bid is qualified to satisfactorily perform the Contract. 

“29.2 The determination will take into account the Bidder’s financial, technical and
production capabilities/resources. It will be based upon an examination of the
documentary evidence of the Bidder’s qualification submitted by the Bidder as well as
such other information as the BAC deems necessary and appropriate. 

“29.3 A bid determined as not substantially responsive will be rejected by the BAC and
may not subsequently be made responsive by the Bidder by correction of the non—
conformity. 

“29.4 The BAC may waive any informality or non—conformity or irregularity in a bid
which does not constitute a material deviation, provided such waiver does not prejudice
or affect the relative ranking of any Bidder. 

“29.5 Should the BAC find that the Bidder complies with the legal, financial and
technical requirements, it shall make an affirmative determination which shall be a
prerequisite for award of the Contract to the Bidder. Otherwise, it will make a negative
determination which will result in rejection of the Bidder’s bid, in which event the BAC
will proceed to the next lowest calculated bid to make a similar determination of that
Bidder’s capabilities to perform satisfactorily.”[12]

Out of the 57 bidders,[13] the BAC found MPC and the Total Information Management
Corporation (TIMC) eligible. For technical evaluation, they were referred to the BAC’s
Technical Working Group (TWG) and the Department of Science and Technology
(DOST).

In its Report on the Evaluation of the Technical Proposals on Phase II, DOST 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.

On 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 letter[14] 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.”

Hence, the present Petition.[16]

The Issues

In their Memorandum, petitioners raise the following issues for our consideration: 

“1. The COMELEC awarded and contracted with a non—eligible entity; x x x 

“2. Private respondents failed to pass the Technical Test as required in the RFP.
Notwithstanding, such failure was ignored. In effect, the COMELEC changed the rules
after the bidding in effect changing the nature of the contract bidded upon. 

“3. Petitioners have locus standi. 

“4. Instant Petition is not premature. Direct resort to the Supreme Court is justified.” [17]

In the main, the substantive issue is whether the Commission on Elections, the agency

vested with the exclusive constitutional mandate to oversee elections, gravely abused its
discretion when, in the exercise of its administrative functions, it awarded to MPC the
contract for the second phase of the comprehensive Automated Election System.

Before discussing the validity of the award to MPC, however, we deem it proper to first
pass upon the procedural issues: the legal standing of petitioners and the alleged
prematurity of the Petition.

This Court’s Ruling

The Petition is meritorious.

First Procedural Issue:

Locus Standi of Petitioners

Respondents chorus that petitioners do not possess locus standi, inasmuch as they are not
challenging the validity or constitutionality of RA 8436. Moreover, petitioners
supposedly admitted during the Oral 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.

On 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, Comelec’s 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.

We agree with petitioners. Our nation’s 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] Petitioners’ 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 locus standi.

Second Procedural Issue:

Alleged Prematurity Due to Non—Exhaustion
of Administrative Remedies

Respondents claim that petitioners acted prematurely, since they had not first utilized the
protest mechanism available to them under RA 9184, the Government Procurement
Reform Act, for the settlement of disputes pertaining to procurement contracts.

Section 55 of RA 9184 states that protests against decisions of the Bidding and Awards
Committee in all stages of procurement may be lodged with the head of the procuring
entity by filing a verified position paper and paying a protest fee. Section 57 of the same
law mandates that in no case shall any such protest stay or delay the bidding process, but
it must first be resolved before any award is made.
On the other hand, Section 58 provides that court action may be resorted to only after the
protests contemplated by the statute shall have been completed. Cases filed in violation of
this process are to be dismissed for lack of jurisdiction. Regional trial courts shall have
jurisdiction over final decisions of the head of the procuring entity, and court actions
shall be instituted pursuant to Rule 65 of the 1997 Rules of Civil Procedure.

Respondents assert that throughout the bidding process, petitioners never questioned the
BAC Report finding MPC eligible to bid and recommending the award of the Contract to
it (MPC). According to respondents, the Report should have been appealed to the
Comelec en banc, pursuant to the aforementioned sections of RA 9184. In the absence of
such appeal, the determination and recommendation of the BAC had become final.

The Court is not persuaded.

Respondent Comelec came out with its en banc Resolution No. 6074 dated April 15,
2003, awarding the project to Respondent MPC even before the BAC managed to issue
its written report and recommendation on April 21, 2003. Thus, how could petitioners
have appealed the BAC’s recommendation or report to the head of the procuring entity
(the chairman of Comelec), when the Comelec en banc had already approved the award
of the contract to MPC even before petitioners learned of the BAC recommendation?

It is claimed[25] by Comelec that during its April 15, 2003 session, it received and
approved the verbal report and recommendation of the BAC for the award of the Contract
to MPC, and that the BAC subsequently re—affirmed its verbal report and
recommendation by submitting it in writing on April 21, 2003. Respondents insist that
the law does not require that the BAC Report be in writing before Comelec can act
thereon; therefore, there is allegedly nothing irregular about the Report as well as the en
banc Resolution.

However, it is obvious that petitioners could have appealed the BAC’s report and
recommendation to the head of the procuring entity (the Comelec chair) only upon
their discovery thereof, which at the very earliest would have been on April 21, 2003,
when the BAC actually put its report in writing and finally released it. Even then, what
would have been the use of protesting/appealing the report to the Comelec chair, when by
that time the Commission en banc (including the chairman himself) had already approved
the BAC Report and awarded the Contract to MPC?

And even assuming arguendo that petitioners had somehow gotten wind of the verbal
BAC report on April 15, 2003 (immediately after the en banc session), at that point the
Commission en banc had already given its approval to the BAC Report along with the
award to MPC. To put it bluntly, the Comelec en banc itself made it legally impossible
for petitioners to avail themselves of the administrative remedy that the Commission is so
impiously harping on. There is no doubt that they had not been accorded the opportunity
to avail themselves of the process provided under Section 55 of RA 9184, according to
which a protest against a decision of the BAC may be filed with the head of the
procuring entity. Nemo tenetur ad impossible,[26] to borrow private respondents’ favorite
Latin excuse.[27]

Some Observations on the

BAC Report to the Comelec

We shall return to this issue of alleged prematurity shortly, but at this interstice, we
would just want to put forward a few observations regarding the BAC Report and the
Comelec en banc’s approval thereof.

First, Comelec contends that there was nothing unusual about the fact that the Report
submitted by the BAC came only after the former had already awarded the Contract,
because the latter had been asked to render its report and recommendation orally during
the Commission’s en banc session on April 15, 2003. Accordingly, Comelec supposedly
acted upon such oral recommendation and approved the award to MPC on the same day,
following which the recommendation was subsequently reduced into writing on April 21,
2003. While not entirely outside the realm of the possible, this interesting and unique
spiel does not speak well of the process that Comelec supposedly went through in making
a critical decision with respect to a multi—billion—peso contract.

We can imagine that anyone else standing in the shoes of the Honorable Commissioners
would have been extremely conscious of the overarching need for utter transparency.
They would have scrupulously avoided the slightest hint of impropriety, preferring to
maintain an exacting regularity in the performance of their duties, instead of trying to
break a speed record in the award of multi—billion—peso contracts. After all, between
April 15 and April 21 were a mere six (6) days. Could Comelec not have waited out six
more days for the written report of the BAC, instead of rushing pell—mell into the arms
of MPC? Certainly, respondents never cared to explain the nature of the Commission’s
dire need to act immediately without awaiting the formal, written BAC Report.

In short, the Court finds it difficult to reconcile the uncommon dispatch with which
Comelec acted to approve the multi—billion—peso deal, with its claim of having been
impelled by only the purest and most noble of motives.

At any rate, as will be discussed later on, several other factors combine to
lend negative credence to Comelec’s tale.

Second, without necessarily ascribing any premature malice or premeditation on the part
of the Comelec officials involved, it should nevertheless be conceded that this cart—
before—the—horse maneuver (awarding of the Contract ahead of the BAC’s written
report) would definitely serve as a clever and effective way of averting and frustrating
any impending protest under Section 55.

Having made the foregoing observations, we now go back to the question of exhausting
administrative remedies. Respondents may not have realized it, but the letter addressed to
Chairman Benjamin Abalos Sr. dated May 29, 2003[28] serves to eliminate the prematurity
issue as it was an actual written protest against the decision of the poll body to award the
Contract. The letter was signed by/for, inter alia, two of herein petitioners: the
Information Technology Foundation of the Philippines, represented by its president,
Alfredo M. Torres; and Ma. Corazon Akol.

Such letter—protest is sufficient compliance with the requirement to exhaust

administrative remedies particularly because it hews closely to the procedure outlined in
Section 55 of RA 9184.

And even without that May 29, 2003 letter—protest, the Court still holds that petitioners
need not exhaust administrative remedies in the light of Paat v. Court of Appeals.[29] Paat
enumerates the instances when the rule on exhaustion of administrative remedies may be
disregarded, as follows: 

“(1) when there is a violation of due process, 

(2) when the issue involved is purely a legal question, 

(3) when the administrative action is patently illegal amounting to lack or excess of
jurisdiction, 

(4) when there is estoppel on the part of the administrative agency concerned, 

(5) when there is irreparable injury, 

(6) when the respondent is a department secretary whose acts as an alter ego of the
President bears the implied and assumed approval of the latter, 

(7) when to require exhaustion of administrative remedies would be unreasonable, 

(8) when it would amount to a nullification of a claim, 

(9) when the subject matter is a private land in land case proceedings, 

(10) when the rule does not provide a plain, speedy and adequate remedy, and 

(11) when there are circumstances indicating the urgency of judicial intervention.” [30]
The present controversy precisely falls within the exceptions listed as Nos. 7, 10 and 11:
“(7) when to require exhaustion of administrative remedies would be unreasonable; (10)
when the rule does not provide a plain, speedy and adequate remedy, and (11) when
there are circumstances indicating the urgency of judicial intervention.” As already
stated, Comelec itself made the exhaustion of administrative remedies legally impossible
or, at the very least, “unreasonable.”

In any event, the peculiar circumstances surrounding the unconventional rendition of the
BAC Report and the precipitate awarding of the Contract by the Comelec en banc — plus
the fact that it was racing to have its Contract with MPC implemented in time for the
elections in May 2004 (barely four months away) — have combined to bring about the
urgent need for judicial intervention, thus prompting this Court to dispense with the
procedural exhaustion of administrative remedies in this case.

Main Substantive Issue:

Validity of the Award to MPC

We come now to the meat of the controversy. Petitioners contend that the award
is invalid, since Comelec gravely abused its discretion when it did the following: 

1. Awarded the Contract to MPC though it did not even participate in the bidding 
 
2. Allowed MPEI to participate in the bidding despite its failure to meet the
mandatory eligibility requirements 

3. Issued its Resolution of April 15, 2003 awarding the Contract to MPC despite the
issuance by the BAC of its Report, which formed the basis of the assailed
Resolution, only on April 21, 2003[31]

4. Awarded the Contract, notwithstanding the fact that during the bidding process,
there were violations of the mandatory requirements of RA 8436 as well as those
set forth in Comelec’s own Request for Proposal on the automated election
system 
 
5. Refused to declare a failed bidding and to conduct a re—bidding despite the
failure of the bidders to pass the technical tests conducted by the Department of
Science and Technology 
 
 6. Failed to follow strictly the provisions of RA 8436 in the conduct of the bidding
for the automated counting machines

After reviewing the slew of pleadings as well as the matters raised during the Oral
Argument, the Court deems it sufficient to focus discussion on the following major areas
of concern that impinge on the issue of grave abuse of discretion: 

A. Matters pertaining to the identity, existence and eligibility of MPC as a bidder 

B. Failure of the automated counting machines (ACMs) to pass the DOST technical tests 

C. Remedial measures and re—testings undertaken by Comelec and DOST after the
award, and their effect on the present controversy

A.

Failure to Establish the Identity,

Existence and Eligibility of the
Alleged Consortium as a Bidder

On the question of the identity and the existence of the real bidder, respondents insist
that, contrary to petitioners’ allegations, the bidder was not Mega Pacific eSolutions, Inc.
(MPEI), which was incorporated only on February 27, 2003, or 11 days prior to the
bidding itself. Rather, the bidder was Mega Pacific Consortium (MPC), of which MPEI
was but a part. As proof thereof, they point to the March 7, 2003 letter of intent to bid,
signed by the president of MPEI allegedly for and on behalf of MPC. They also call
attention to the official receipt issued to MPC, acknowledging payment for the bidding
documents, as proof that it was the “consortium” that participated in the bidding process.

We do not agree. The March 7, 2003 letter, signed by only one signatory — “Willy U.
Yu, President, Mega Pacific eSolutions, Inc., (Lead Company/ Proponent) For: Mega
Pacific Consortium” — and without any further proof, does not by itself prove the
existence of the consortium. It does not show that MPEI or its president have been duly
pre—authorized by the other members of the putative consortium to represent them, to
bid on their collective behalf and, more important, to commit them jointly and severally
to the bid undertakings. The letter is purely self—serving and uncorroborated.

Neither does an official receipt issued to MPC, acknowledging payment for the bidding
documents, constitute proof that it was the purported consortium that participated in the
bidding. Such receipts are issued by cashiers without any legally sufficient inquiry as to
the real identity or existence of the supposed payor.
To assure itself properly of the due existence (as well as eligibility and qualification) of
the putative consortium, Comelec’s BAC should have examined the bidding documents
submitted on behalf of MPC. They would have easily discovered the following fatal
flaws.

Two—Envelope,
Two—Stage System

As stated earlier in our factual presentation, the public bidding system designed by
Comelec under its RFP (Request for Proposal for the Automation of the 2004 Election)
mandated the use of a two—envelope, two—stage system. A bidder’s first
envelope (Eligibility Envelope) was meant to establish its eligibility to bid and its
qualifications and capacity to perform the contract if its bid was accepted, while
the second envelope would be the Bid Envelope itself.

The Eligibility Envelope was to contain legal documents such as articles of incorporation,

business registrations, licenses and permits, mayor’s permit, VAT certification, and so
forth; technical documents containing documentary evidence to establish the track record
of the bidder and its technical and production capabilities to perform the contract;
and financial documents, including audited financial statements for the last three years, to
establish the bidder’s financial capacity.

In the case of a consortium or joint venture desirous of participating in the bidding, it

goes without saying that the Eligibility Envelope would necessarily have to include a
copy of the joint venture agreement, the consortium agreement or memorandum of
agreement — or a business plan or some other instrument of similar import —
establishing the due existence, composition and scope of such aggrupation. Otherwise,
how would Comelec know who it was dealing with, and whether these parties are
qualified and capable of delivering the products and services being offered for bidding?
[32]

In the instant case, no such instrument was submitted to Comelec during the bidding
process. This fact can be conclusively ascertained by scrutinizing the two—inch thick
“Eligibility Requirements” file submitted by Comelec last October 9, 2003, in partial
compliance with this Court’s instructions given during the Oral Argument. This file
purports to replicate the eligibility documents originally submitted to Comelec by MPEI
allegedly on behalf of MPC, in connection with the bidding conducted in March 2003.
Included in the file are the incorporation papers and financial statements of the members
of the supposed consortium and certain certificates, licenses and permits issued to them.

However, there is no sign whatsoever of any joint venture agreement, consortium

agreement, memorandum of agreement, or business plan executed among the members of
the purported consortium.
The only logical conclusion is that no such agreement was ever submitted to the Comelec
for its consideration, as part of the bidding process.

It thus follows that, prior the award of the Contract, there was no documentary or other
basis for Comelec to conclude that a consortium had actually been formed amongst
MPEI, SK C&C and WeSolv, along with Election.com and ePLDT.[33] Neither was there
anything to indicate the exact relationships between and among these firms; their diverse
roles, undertakings and prestations, if any, relative to the prosecution of the project, the
extent of their respective investments (if any) in the supposed consortium or in the
project; and the precise nature and extent of their respective liabilities with respect to the
contract being offered for bidding. And apart from the self—serving letter of March 7,
2003, there was not even any indication that MPEI was the lead company duly authorized
to act on behalf of the others.

So, it necessarily follows that, during the bidding process, Comelec had no basis at all for
determining that the alleged consortium really existed and was eligible and qualified; and
that the arrangements among the members were satisfactory and sufficient to ensure
delivery on the Contract and to protect the government’s interest.

Notwithstanding such deficiencies, Comelec still deemed the “consortium” eligible to

participate in the bidding, proceeded to open its Second Envelope, and eventually
awarded the bid to it, even though — per the Comelec’s own RFP — the BAC should
have declared the MPC ineligible to bid and returned the Second (Bid) Envelope
unopened.

Inasmuch as Comelec should not have considered MPEI et al. as comprising a

consortium or joint venture, it should not have allowed them to avail themselves of the
provision in Section 5.4 (b) (i) of the IRR for RA 6957 (the Build—Operate—Transfer
Law), as amended by RA 7718. This provision states in part that a joint
venture/consortium proponent shall be evaluated based on the individual or collective
experience of the member—firms of the joint venture or consortium and of the
contractor(s) that it has engaged for the project. Parenthetically, respondents have
uniformly argued that the said IRR of RA 6957, as amended, have suppletory application
to the instant case.

Hence, had the proponent MPEI been evaluated based solely on its own experience,
financial and operational track record or lack thereof, it would surely not have qualified
and would have been immediately considered ineligible to bid, as respondents readily
admit.

At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily failing to
observe its own rules, policies and guidelines with respect to the bidding process, thereby
negating a fair, honest and competitive bidding.
Commissioners Not
Aware of Consortium

In this regard, the Court is beguiled by the statements of Commissioner Florentino

Tuason Jr., given in open court during the Oral Argument last October 7, 2003. The good
commissioner affirmed that he was aware, of his own personal knowledge, that there had
indeed been a written agreement among the “consortium” members,[34] although it was an
internal matter among them,[35] and of the fact that it would be presented by counsel for
private respondent.[36]

However, under questioning by Chief Justice Hilario G. Davide Jr. and Justice Jose C.
Vitug, Commissioner Tuason in effect admitted that, while he was the commissioner—in
—charge of Comelec’s Legal Department, he had never seen, even up to that late date,
the agreement he spoke of.[37] Under further questioning, he was likewise unable to
provide any information regarding the amounts invested into the project by several
members of the claimed consortium.[38] A short while later, he admitted that the
Commission had not taken a look at the agreement (if any).[39]

He tried to justify his position by claiming that he was not a member of the BAC. Neither
was he the commissioner—in—charge of the Phase II Modernization project (the
automated election system); but that, in any case, the BAC and the Phase II
Modernization Project Team did look into the aspect of the composition of the
consortium.

It seems to the Court, though, that even if the BAC or the Phase II Team had taken charge
of evaluating the eligibility, qualifications and credentials of the consortium—bidder,
still, in all probability, the former would have referred the task to Commissioner Tuason,
head of Comelec’s Legal Department. That task was the appreciation and evaluation of
the legal effects and consequences of the terms, conditions, stipulations and covenants
contained in any joint venture agreement, consortium agreement or a similar document
— assuming of course that any of these was available at the time. The fact that
Commissioner Tuason was barely aware of the situation bespeaks the complete absence
of such document, or the utter failure or neglect of the Comelec to examine it —
assuming it was available at all — at the time the award was made on April 15, 2003.

In any event, the Court notes for the record that Commissioner Tuason basically
contradicted his statements in open court about there being one written agreement among
all the consortium members, when he subsequently referred[40] to the four (4) Memoranda
of Agreement (MOAs) executed by them.[41]

At this juncture, one might ask: What, then, if there are four MOAs instead of one or
none at all? Isn’t it enough that there are these corporations coming together to carry out
the automation project? Isn’t it true, as respondent aver, that nowhere in the RFP issued
by Comelec is it required that the members of the joint venture execute a single written
agreement to prove the existence of a joint venture. Indeed, the intention to be jointly and
severally liable may be evidenced not only by a single joint venture agreement, but also
by supplementary documents executed by the parties signifying such intention. What then
is the big deal?

The problem is not that there are four agreements instead of only one. The problem is
that Comelec never bothered to check. It never based its decision on documents or other
proof that would concretely establish the existence of the claimed consortium or joint
venture or agglomeration. It relied merely on the self—serving representation in an
uncorroborated letter signed by only one individual, claiming that his company
represented a “consortium” of several different corporations. It concluded forthwith that a
consortium indeed existed, composed of such and such members, and thereafter declared
that the entity was eligible to bid.

True, copies of financial statements and incorporation papers of the alleged “consortium”
members were submitted. But these papers did not establish the existence of a
consortium, as they could have been provided by the companies concerned for purposes
other than to prove that they were part of a consortium or joint venture. For instance, the
papers may have been intended to show that those companies were each qualified to be a
sub—contractor (and nothing more) in a major project. Those documents did not by
themselves support the assumption that a consortium or joint venture existed among the
companies.

In brief, despite the absence of competent proof as to the existence and eligibility of the
alleged consortium (MPC), its capacity to deliver on the Contract, and the members’ joint
and several liability therefor, Comelec nevertheless assumed that such consortium existed
and was eligible. It then went ahead and considered the bid of MPC, to which the
Contract was eventually awarded, in gross violation of the former’s own bidding rules
and procedures contained in its RFP. Therein lies Comelec’s grave abuse of discretion.

Sufficiency of the
Four Agreements

Instead of one multilateral agreement executed by, and effective and binding on, all the
five “consortium members” — as earlier claimed by Commissioner Tuason in open court
— it turns out that what was actually executed were four (4) separate and distinct
bilateral Agreements.[42] Obviously, Comelec was furnished copies of these Agreements
only after the bidding process had been terminated, as these were not included in the
Eligibility Documents. These Agreements are as follows: 

 A Memorandum of Agreement between MPEI and SK C&C 

 
  A Memorandum of Agreement between MPEI and WeSolv 
 
 A “Teaming Agreement” between MPEI and Election.com Ltd. 

 A “Teaming Agreement” between MPEI and ePLDT.

In sum, each of the four different and separate bilateral Agreements is valid and binding
only between MPEI and the other contracting party, leaving the other “consortium”
members total strangers thereto. Under this setup, MPEI dealt separately with each of the
“members,” and the latter (WeSolv, SK C&C, Election.com, and ePLDT) in turn had
nothing to do with one another, each dealing only with MPEI.

Respondents assert that these four Agreements were sufficient for the purpose of enabling
the corporations to still qualify (even at that late stage) as a consortium or joint venture,
since the first two Agreements had allegedly set forth the joint and several undertakings
among the parties, whereas the latter two clarified the parties’ respective roles with
regard to the Project, with MPEI being the independent contractor and Election.com and
ePLDT the subcontractors.

Additionally, the use of the phrase “particular contract” in the Comelec’s Request for
Proposal (RFP), in connection with the joint and several liabilities of companies in a joint
venture, is taken by them to mean that all the members of the joint venture need not be
solidarily liable for the entire project or joint venture, because it is sufficient that the lead
company and the member in charge of a particular contract or aspect of the joint venture
agree to be solidarily liable.

At this point, it must be stressed most vigorously that the submission of the four bilateral
Agreements to Comelec after the end of the bidding process did nothing to eliminate the
grave abuse of discretion it had already committed on April 15, 2003.

Deficiencies Have
Not Been “Cured”

In any event, it is also claimed that the automation Contract awarded by Comelec
incorporates all documents executed by the “consortium” members, even if these
documents are not referred to therein. The basis of this assertion appears to be the
passages from Section 1.4 of the Contract, which is reproduced as follows:

“All Contract Documents shall form part of the Contract even if they or any one of them
is not referred to or mentioned in the Contract as forming a part thereof. Each of the
Contract Documents shall be mutually complementary and explanatory of each other
such that what is noted in one although not shown in the other shall be considered
contained in all, and what is required by any one shall be as binding as if required by all,
unless one item is a correction of the other.

“The intent of the Contract Documents is the proper, satisfactory and timely execution
and completion of the Project, in accordance with the Contract Documents.
Consequently, all items necessary for the proper and timely execution and completion of
the Project shall be deemed included in the Contract.”

Thus, it is argued that whatever perceived deficiencies there were in the supplementary
contracts — those entered into by MPEI and the other members of the “consortium” as
regards their joint and several undertakings — have been cured. Better still, such
deficiencies have supposedly been prevented from arising as a result of the above—
quoted provisions, from which it can be immediately established that each of the
members of MPC assumes the same joint and several liability as the other members.

The foregoing argument is unpersuasive. First, the contract being referred to, entitled
“The Automated Counting and Canvassing Project Contract,” is between Comelec and
MPEI, not the alleged consortium, MPC. To repeat, it is MPEI — not MPC — that is a
party to the Contract. Nowhere in that Contract is there any mention of a consortium or
joint venture, of members thereof, much less of joint and several liability. Supposedly
executed sometime in May 2003,[43] the Contract bears a notarization date of June 30,
2003, and contains the signature of Willy U. Yu signing as president of MPEI (not for
and on behalf of MPC), along with that of the Comelec chair. It provides in Section 3.2
that MPEI (not MPC) is to supply the Equipment and perform the Services under the
Contract, in accordance with the appendices thereof; nothing whatsoever is said about
any consortium or joint venture or partnership.

Second, the portions of Section 1.4 of the Contract reproduced above do not have the
effect of curing (much less preventing) deficiencies in the bilateral agreements entered
into by MPEI with the other members of the “consortium,” with respect to their joint and
several liabilities. The term “Contract Documents,” as used in the quoted passages of
Section 1.4, has a well—defined meaning and actually refers only to the following
documents: 

 The Contract itself along with its appendices 

 
 The Request for Proposal (also known as “Terms of Reference”) issued by the
Comelec, including the Tender Inquiries and Bid Bulletins  

 The Tender Proposal submitted by MPEI

In other words, the term “Contract Documents” cannot be understood as referring to or
including the MOAs and the Teaming Agreements entered into by MPEI with SK C&C,
WeSolv, Election.com and ePLDT. This much is very clear and admits of no debate. The
attempt to use the provisions of Section 1.4 to shore up the MOAs and the Teaming
Agreements is simply unwarranted.

Third and last, we fail to see how respondents can arrive at the conclusion that, from the
above—quoted provisions, it can be immediately established that each of the members of
MPC assumes the same joint and several liability as the other members. Earlier,
respondents claimed exactly the opposite — that the two MOAs (between MPEI and SK
C&C, and between MPEI and WeSolv) had set forth the joint and several undertakings
among the parties; whereas the two Teaming Agreements clarified the parties’ respective
roles with regard to the Project, with MPEI being the independent contractor and
Election.com and ePLDT the subcontractors.

Obviously, given the differences in their relationships, their respective liabilities cannot
be the same. Precisely, the very clear terms and stipulations contained in the MOAs and
the Teaming Agreements — entered into by MPEI with SK C&C, WeSolv, Election.com
and ePLDT — negate the idea that these “members” are on a par with one another and
are, as such, assuming the same joint and several liability.

Moreover, respondents have earlier seized upon the use of the term “particular contract”
in the Comelec’s Request for Proposal (RFP), in order to argue that all the members of
the joint venture did not need to be solidarily liable for the entire project or joint venture.
It was sufficient that the lead company and the member in charge of a particular contract
or aspect of the joint venture would agree to be solidarily liable. The glaring lack of
consistency leaves us at a loss. Are respondents trying to establish the same joint and
solidary liability among all the “members” or not?

Enforcement of
Liabilities Problematic

Next, it is also maintained that the automation Contract between Comelec and the
MPEI confirms the solidary undertaking of the lead company and the consortium
member concerned for each particular Contract, inasmuch as the position of MPEI and
anyone else performing the services contemplated under the Contract is described therein
as that of an independent contractor.

The Court does not see, however, how this conclusion was arrived at. In the first place,
the contractual provision being relied upon by respondents is Article 14, “Independent
Contractors,” which states: “Nothing contained herein shall be construed as establishing
or creating between the COMELEC and MEGA the relationship of employee and
employer or principal and agent, it being understood that the position of MEGA and of
anyone performing the Services contemplated under this Contract, is that of an
independent contractor.”

Obviously, the intent behind the provision was simply to avoid the creation of an
employer—employee or a principal—agent relationship and the complications that it
would produce. Hence, the Article states that the role or position of MPEI, or anyone else
performing on its behalf, is that of an independent contractor. It is obvious to the Court
that respondents are stretching matters too far when they claim that, because of this
provision, the Contract in effect confirms the solidary undertaking of the lead company
and the consortium member concerned for the particular phase of the project. This
assertion is an absolute non sequitur.

Enforcement of Liabilities
Under the Civil Code Not Possible

In any event, it is claimed that Comelec may still enforce the liability of the “consortium”
members under the Civil Code provisions on partnership, reasoning that MPEI et al.
represented themselves as partners and members of MPC for purposes of bidding for the
Project. They are, therefore, liable to the Comelec to the extent that the latter relied upon
such representation. Their liability as partners is solidary with respect to everything
chargeable to the partnership under certain conditions.

The Court has two points to make with respect to this argument. First, it must be recalled
that SK C&C, WeSolv, Election.com and ePLDT never represented themselves as
partners and members of MPC, whether for purposes of bidding or for something else. It
was MPEI alone that represented them to be members of a “consortium” it supposedly
headed. Thus, its acts may not necessarily be held against the other “members.”

Second, this argument of the OSG in its Memorandum[44] might possibly apply in the
absence of a joint venture agreement or some other writing that discloses the relationship
of the “members” with one another. But precisely, this case does not deal with a situation
in which there is nothing in writing to serve as reference, leaving Comelec to rely on
mere representations and therefore justifying a falling back on the rules on partnership.
For, again, the terms and stipulations of the MOAs entered into by MPEI with SK C&C
and WeSolv, as well as the Teaming Agreements of MPEI with Election.com and ePLDT
(copies of which have been furnished the Comelec) are very clear with respect to the
extent and the limitations of the firms’ respective liabilities.

In the case of WeSolv and SK C&C, their MOAs state that their liabilities, while joint
and several with MPEI, are limited only to the particular areas of work wherein their
services are engaged or their products utilized. As for Election.com and ePLDT, their
separate “Teaming Agreements” specifically ascribe to them the role of subcontractor vis
—à—vis MPEI as contractor and, based on the terms of their particular
agreements, neither Election.com nor ePLDT is, with MPEI, jointly and severally liable
to Comelec.[45] It follows then that in the instant case, there is no justification for anyone,
much less Comelec, to resort to the rules on partnership and partners’ liabilities.

Eligibility of a Consortium
Based on the Collective
Qualifications of Its Members

Respondents declare that, for purposes of assessing the eligibility of the bidder, the
members of MPC should be evaluated on a collective basis. Therefore, they contend, the
failure of MPEI to submit financial statements (on account of its recent incorporation)
should not by itself disqualify MPC, since the other members of the “consortium” could
meet the criteria set out in the RFP.

Thus, according to respondents, the collective nature of the undertaking of the members
of MPC, their contribution of assets and sharing of risks, and the community of their
interest in the performance of the Contract lead to these reasonable conclusions: (1) that
their collective qualifications should be the basis for evaluating their eligibility; (2) that
the sheer enormity of the project renders it improbable to expect any single entity to be
able to comply with all the eligibility requirements and undertake the project by itself;
and (3) that, as argued by the OSG, the RFP allows bids from manufacturers, suppliers
and/or distributors that have formed themselves into a joint venture, in recognition of the
virtual impossibility of a single entity’s ability to respond to the Invitation to Bid.

Additionally, argues the Comelec, the Implementing Rules and Regulations of RA 6957
(the Build—Operate—Transfer Law) as amended by RA 7718 would be applicable, as
proponents of BOT projects usually form joint ventures or consortiums. Under the IRR, a
joint venture/consortium proponent shall be evaluated based on the individual or the
collective experience of the member—firms of the joint venture/consortium and of the
contractors the proponent has engaged for the project.

Unfortunately, this argument seems to assume that the “collective” nature of the
undertaking of the members of MPC, their contribution of assets and sharing of risks, and
the “community” of their interest in the performance of the Contract entitle MPC to be
treated as a joint venture or consortium; and to be evaluated accordingly on the basis of
the members’ collective qualifications when, in fact, the evidence before the Court
suggest otherwise.

This Court in Kilosbayan v. Guingona[46] defined joint venture as “an association of

persons or companies jointly undertaking some commercial enterprise; generally, all
contribute assets and share risks. It requires a community of interest in the performance
of the subject matter, a right to direct and govern the policy in connection therewith, and
[a] duty, which may be altered by agreement to share both in profit and losses.”
Going back to the instant case, it should be recalled that the automation Contract with
Comelec was not executed by the “consortium” MPC — or by MPEI for and on behalf of
MPC — but by MPEI, period. The said Contract contains no mention whatsoever of any
consortium or members thereof. This fact alone seems to contradict all the suppositions
about a joint undertaking that would normally apply to a joint venture or consortium: that
it is a commercial enterprise involving a community of interest, a sharing of risks, profits
and losses, and so on.

Now let us consider the four bilateral Agreements, starting with the Memorandum of
Agreement between MPEI and WeSolv Open Computing, Inc., dated March 5, 2003. The
body of the MOA consists of just seven (7) short paragraphs that would easily fit in one
page. It reads as follows: 

“1. The parties agree to cooperate in successfully implementing the Project in the
substance and form as may be most beneficial to both parties and other subcontractors
involved in the Project. 

“2. Mega Pacific shall be responsible for any contract negotiations and signing with the
COMELEC and, subject to the latter’s approval, agrees to give WeSolv an opportunity to
be present at meetings with the COMELEC concerning WeSolv’s portion of the Project. 

“3. WeSolv shall be jointly and severally liable with Mega Pacific only for the particular
products and/or services supplied by the former for the Project. 

“4. Each party shall bear its own costs and expenses relative to this agreement unless
otherwise agreed upon by the parties. 

“5. The parties undertake to do all acts and such other things incidental to, necessary or
desirable or the attainment of the objectives and purposes of this Agreement.

“6. In the event that the parties fail to agree on the terms and conditions of the supply of
the products and services including but not limited to the scope of the products and
services to be supplied and payment terms, WeSolv shall cease to be bound by its
obligations stated in the aforementioned paragraphs. 

“7. Any dispute arising from this Agreement shall be settled amicably by the parties
whenever possible. Should the parties be unable to do so, the parties hereby agree to
settle their dispute through arbitration in accordance with the existing laws of the
Republic of the Philippines.” (Underscoring supplied.)

Even shorter is the Memorandum of Agreement between MPEI and SK C&C Co. Ltd.,
dated March 9, 2003, the body of which consists of only six (6) paragraphs, which we
quote: 
“1. All parties agree to cooperate in achieving the Consortium’s objective of successfully
implementing the Project in the substance and form as may be most beneficial to the
Consortium members and in accordance w/ the demand of the RFP. 

“2. Mega Pacific shall have full powers and authority to represent the Consortium with
the Comelec, and to enter and sign, for and in behalf of its members any and all
agreement/s which maybe required in the implementation of the Project. 

“3. Each of the individual members of the Consortium shall be jointly and severally
liable with the Lead Firm for the particular products and/or services supplied by such
individual member for the project, in accordance with their respective undertaking or
sphere of responsibility. 

“4. Each party shall bear its own costs and expenses relative to this agreement unless
otherwise agreed upon by the parties. 

“5. The parties undertake to do all acts and such other things incidental to, necessary or
desirable for the attainment of the objectives and purposes of this Agreement. 

“6. Any dispute arising from this Agreement shall be settled amicably by the parties
whenever possible. Should the parties be unable to do so, the parties hereby agree to
settle their dispute through arbitration in accordance with the existing laws of the
Republic of the Philippines.” (Underscoring supplied.)

It will be noted that the two Agreements quoted above are very similar in wording.
Neither of them contains any specifics or details as to the exact nature and scope of the
parties’ respective undertakings, performances and deliverables under the Agreement
with respect to the automation project. Likewise, the two Agreements are quite bereft of
pesos—and—centavos data as to the amount of investments each party contributes, its
respective share in the revenues and/or profit from the Contract with Comelec, and so
forth — all of which are normal for agreements of this nature. Yet, according to public
and private respondents, the participation of MPEI, WeSolv and SK C&C comprises fully
90 percent of the entire undertaking with respect to the election automation project,
which is worth about P1.3 billion.

As for Election.com and ePLDT, the separate “Teaming Agreements” they entered into
with MPEI for the remaining 10 percent of the entire project undertaking are ironically
much longer and more detailed than the MOAs discussed earlier. Although specifically
ascribing to them the role of subcontractor vis—à—vis MPEI as contractor, these
Agreements are, however, completely devoid of any pricing data or payment terms. Even
the appended Schedules supposedly containing prices of goods and services are shorn of
any price data. Again, as mentioned earlier, based on the terms of their particular
Agreements, neither Election.com nor ePLDT — with MPEI — is jointly and severally
liable to Comelec.

It is difficult to imagine how these bare Agreements — especially the first two — could
be implemented in practice; and how a dispute between the parties or a claim by Comelec
against them, for instance, could be resolved without lengthy and debilitating litigations.
Absent any clear—cut statement as to the exact nature and scope of the parties’
respective undertakings, commitments, deliverables and covenants, one party or another
can easily dodge its obligation and deny or contest its liability under the Agreement; or
claim that it is the other party that should have delivered but failed to.

Likewise, in the absence of definite indicators as to the amount of investments to be

contributed by each party, disbursements for expenses, the parties’ respective shares in
the profits and the like, it seems to the Court that this situation could readily give rise to
all kinds of misunderstandings and disagreements over money matters.

Under such a scenario, it will be extremely difficult for Comelec to enforce the supposed
joint and several liabilities of the members of the “consortium.” The Court is not even
mentioning the possibility of a situation arising from a failure of WeSolv and MPEI to
agree on the scope, the terms and the conditions for the supply of the products and
services under the Agreement. In that situation, by virtue of paragraph 6 of its MOA,
WeSolv would perforce cease to be bound by its obligations — including its joint and
solidary liability with MPEI under the MOA — and could forthwith disengage from the
project. Effectively, WeSolv could at any time unilaterally exit from its MOA with MPEI
by simply failing to agree. Where would that outcome leave MPEI and Comelec?

To the Court, this strange and beguiling arrangement of MPEI with the other companies
does not qualify them to be treated as a consortium or joint venture, at least of the type
that government agencies like the Comelec should be dealing with. With more reason is it
unable to agree to the proposal to evaluate the members of MPC on a collective basis.

In any event, the MPC members claim to be a joint venture/consortium; and respondents
have consistently been arguing that the IRR for RA 6957, as amended, should be applied
to the instant case in order to allow a collective evaluation of consortium members.
Surprisingly, considering these facts, respondents have not deemed it necessary for MPC
members to comply with Section 5.4 (a) (iii) of the IRR for RA 6957 as amended.

According to the aforementioned provision, if the project proponent is a joint venture or

consortium, the members or participants thereof are required to submit a sworn
statement that, if awarded the contract, they shall bind themselves to be jointly, severally
and solidarily liable for the project proponent’s obligations thereunder. This provision
was supposed to mirror Section 5 of RA 6957, as amended, which states: “In all cases, a
consortium that participates in a bid must present proof that the members of the
consortium have bound themselves jointly and severally to assume responsibility for any
project. The withdrawal of any member of the consortium prior to the implementation of
the project could be a ground for the cancellation of the contract.”

The Court has certainly not seen any joint and several undertaking by the MPC members
that even approximates the tenor of that which is described above. We fail to see why
respondents should invoke the IRR if it is for their benefit, but refuse to comply with it
otherwise.

B.

DOST Technical Tests Flunked by the

Automated Counting Machines

Let us now move to the second subtopic, which deals with the substantive issue: the
ACM’s failure to pass the tests of the Department of Science and Technology (DOST).

After respondent “consortium” and the other bidder, TIM, had submitted their respective
bids on March 10, 2003, the Comelec’s BAC — through its Technical Working Group
(TWG) and the DOST — evaluated their technical proposals. Requirements that were
highly technical in nature and that required the use of certain equipment in the evaluation
process were referred to the DOST for testing. The Department reported thus:

TEST RESULTS MATRIX[47]

[Technical Evaluation of Automated Counting Machine]

                                                                                                                                             
  KEY MEGA— TOTAL
REQUIREM PACIFIC INFORMATIO
ENTS       N
      CONSORTIU MANAGEME
[QUESTION M NT
S]    
 
YES NO YES NO
   
           
1. Does the
machine have
  an accuracy
rating of at
  least 99.995
percent
   
  At COLD x x
  environmenta
 l
  condition
   
  At NORMAL x x
  environmenta
       
l
  conditions        
           
  At HARSH   x x
  environmenta
 
l
  conditions  
           
2. Accurately
x x
records and
  reports the
date and time
  of the start
and end of
  counting of
ballots per
  precinct?
   
3.
Prints
election x x
    
returns
 
  without any
loss of date
  during
generation of
  such reports?        
           
4.
Uninterruptib
x x
    le back—up
 
  power
system, that
will
  engage
immediately
to
  allow
operation of
at
  least 10
minutes after
  outage, power
surge or
  abnormal
electrical
  occurrences?
   
5. Machine
x x
reads two—
       
sided ballots
Note:
in one
This
  particula
pass?
r
  require
 
ment
  needs
 
further
  verificat
 
ion
           
6.
Machine can
x x
    detect
 
  previously
counted
  ballots and
prevent
  previously
counted
  ballots from
being
  counted more
than
  once?
   
7. Stores results
x x
of counted
  votes by Note:
precinct in This
  external particula
(removable) r
  storage require
device? ment
  needs
 
further
  verificat
 
ion
   
8. Data stored in
x x
external
  media is Note:
encrypted? This
  particula
 
r
  require
 
ment
  needs
 
further
  verificat
 
ion
   
9. Physical key
x x
or similar
  device
allows, limits,
or
  restricts
operation of        
the
  machine?        
           
1 CPU speed is
x x
0. at least
  Note:
400mHz?      
This
  particula
       
r
  require
       
ment
  needs
       
further
  verificat
       
ion
           
1 Port to allow
x x
1. use of
  dot—matrix
       
printers?
           
1 Generates
       
2. printouts of
  the election
       
returns in a
  format
specified by        
the
  COMELEC?        
           
  Generates
x x
printouts
           
  In format
x x
specified by
  COMELEC        
           
1 Prints
3. election x x
returns
  without any
       
loss of data
  during
       
generation of
  such report?        
           
1 Generates an
       
4. audit trail
  of the
       
counting
  machine, both
       
hard copy
  and soft
       
copy?
           
  Hard copy
x x
     
           
  Soft copy
x x
     
  Note:
       
This
  particula
       
r
          require
 ment
  needs
       
further
  verificat
       
ion
           
1
Does the x x
5.
  City/Municip Note:
     
al This
  Canvassing particula
     
System r
  consolidate require
     
results from ment
  all precincts needs
     
within it further
  using the verificat
     
encrypted soft ion
  copy of the
       
data
  generated by
       
the
  counting
       
machine and
  stored on the
       
removable
  data storage
       
device?
           
1
Does the x x
6.
  City/Municip Note: Note:
   
al This This
  Canvassing particula particula
   
System r r
  consolidate require require
   
results from ment ment
  all precincts needs needs
   
within it further further
  using the verificat verificat
   
encrypted soft ion ion
  copy of the
       
data
  generated by
       
the
  counting        
 machine and
  transmitted
       
through an
  electronic
       
transmission
  media?        
           
1 Does the
x x
7. system output
  a Zero
Note:
City/Municip      
This
al
  Canvass particula
     
Report, which r
  is printed on require
     
election ment
  day prior to needs
     
the conduct further
  of the actual verificat
     
canvass ion
  operation,
       
that shows
  that all totals
       
for all the
  votes for all
       
the
  candidates
       
and other
  information,
       
are indeed
  zero or null?        
           
1 Does the
x x
8. system
  consolidate Note:
     
results from This
  all precincts particula
     
in the r
  city/municipa require
     
lity using ment
  the data
needs
storage      
further
device
  coming from verificat
     
the ion
  counting        
 machine?
           
1 Is the
9. machine x x
100%
  Note:
accurate?      
This
  particula
       
r
  require
       
ment
  needs
       
further
  verificat
       
ion
           
2 Is the
0. Program able x x
to
  detect Note:
     
previously This
  downloaded particula
     
precinct r
  results and require
     
prevent these ment
  from being needs
     
inputted further
  again into the verificat
     
System? ion
           
2 The System is
       
1. able to
  print the
       
specified
  reports and
       
the audit
  trail without
       
any loss of
  data during
       
generation
  of the above
       
—mentioned
  reports?        
           
  Prints x x
specified
 reports
           
  Audit Trail x x
  Note:
       
This
  particula
       
r
  require
       
ment
  needs
       
further
  verificat
       
ion
           
2 Can the result
x x
2. of the
  city/municipa Note:
     
l This
  consolidation particula
     
be stored r
  in a data
require
storage      
ment
device?
  needs
       
further
  verificat
       
ion
           
2 Does the
x x
3. system
  consolidate Note:
     
results from This
  all precincts particula
     
in the r
  provincial/dis require
     
trict/ ment
  national using needs
     
the data further
  storage verificat
     
device from ion
  different
       
levels of
  consolidation
       
?
           
2 Is the system x x
4. 100%
  Note:
accurate?      
This
  particula
       
r
  require
       
ment
  needs
       
further
  verificat
       
ion
           
2 Is the
5. Program able x x
to
  detect Note:
     
previously This
  downloaded particula
     
precinct r
  results and require
     
prevent these ment
  from being needs
     
inputted further
  again into the verificat
     
System? ion
           
2 The System is
       
6. able to
  print the
       
specified
  reports and
       
the audit
  trail without
       
any loss of
  data during
       
generation
  of the
abovemention        
ed
  reports?        
           
  Prints
specified x x
reports
           
  Audit Trail   x x
   Note:
       
This
  particula
       
r
  require
       
ment
  needs
       
further
  verificat
       
ion
           
2
7.
Can the
x x
results of the
    
 
  provincial/dis Note:
     
trict/ This
  national particula
     
consolidation r
  be stored in a require
     
data ment
  storage needs
     
device? further
  verificat
       
ion

According to respondents, it was only after the TWG and the DOST had conducted their
separate tests and submitted their respective reports that the BAC, on the basis of these
reports formulated its comments/recommendations on the bids of the consortium and
TIM.

The BAC, in its Report dated April 21, 2003, recommended that the Phase II project
involving the acquisition of automated counting machines be awarded to MPEI. It said: 

“After incisive analysis of the technical reports of the DOST and the Technical Working
Group for Phase II — Automated Counting Machine, the BAC considers adaptability to
advances in modern technology to ensure an effective and efficient method, as well as the
security and integrity of the system. 

“The results of the evaluation conducted by the TWG and that of the DOST (14 April
2003 report), would show the apparent advantage of Mega—Pacific over the other
competitor, TIM. 
“The BAC further noted that both Mega—Pacific and TIM obtained some ‘failed marks’
in the technical evaluation. In general, the ‘failed marks’ of Total Information
Management as enumerated above affect the counting machine itself which are material
in nature, constituting non—compliance to the RFP. On the other hand, the ‘failed marks’
of Mega—Pacific are mere formalities on certain documentary requirements which the
BAC may waive as clearly indicated in the Invitation to Bid. 

“In the DOST test, TIM obtained 12 failed marks and mostly attributed to the counting
machine itself as stated earlier. These are requirements of the RFP and therefore the BAC
cannot disregard the same. 

“Mega—Pacific failed in 8 items however these are mostly on the software which can be
corrected by reprogramming the software and therefore can be readily corrected. 

“The BAC verbally inquired from DOST on the status of the retest of the counting
machines of the TIM and was informed that the report will be forthcoming after the holy
week. The BAC was informed that the retest is on a different parameters they’re being
two different machines being tested. One purposely to test if previously read ballots will
be read again and the other for the other features such as two sided ballots. 

“The said machine and the software therefore may not be considered the same machine
and program as submitted in the Technical proposal and therefore may be considered an
enhancement of the original proposal. 

“Advance information relayed to the BAC as of 1:40 PM of 15 April 2003 by Executive

Director Ronaldo T. Viloria of DOST is that the result of the test in the two counting
machines of TIM contains substantial errors that may lead to the failure of these
machines based on the specific items of the RFP that DOST has to certify.

OPENING OF FINANCIAL BIDS 

“The BAC on 15 April 2003, after notifying the concerned bidders opened the financial
bids in their presence and the results were as follows:

Mega—Pacific: 

Option 1 — Outright purchase: Bid Price of Php1,248,949,088.00 

Option 2 — Lease option:

70% Down payment of cost of hardware or Php642,755,757.07   

Remainder payable over 50 months or a total of Php642,755,757.07   

Discount rate of 15% p.a. or 1.2532% per month.   

Total Number of Automated Counting Machine — 1,769 ACMs (Nationwide)

TIM:   

Total Bid Price — Php1,297,860,560.00   

Total Number of Automated Counting Machine — 2,272 ACMs (Mindanao and NCR
only) 

“Premises considered, it appears that the bid of Mega Pacific is the lowest calculated
responsive bid, and therefore, the Bids and Awards Committee (BAC) recommends that
the Phase II project re Automated Counting Machine be awarded to Mega Pacific
eSolutions, Inc.”[48]

The BAC, however, also stated on page 4 of its Report: “Based on the 14 April 2003
report (Table 6) of the DOST, it appears that both Mega—Pacific and TIM (Total
Information Management Corporation) failed to meet some of the requirements. Below is
a comparative presentation of the requirements wherein Mega—Pacific or TIM or both
of them failed: . . ..” What followed was a list of “key requirements,” referring to
technical requirements, and an indication of which of the two bidders had failed to meet
them.

Failure to Meet the

Required Accuracy Rating

The first of the key requirements was that the counting machines were to have
an accuracy rating of at least 99.9995 percent. The BAC Report indicates that both Mega
Pacific and TIM failed to meet this standard.

The key requirement of accuracy rating happens to be part and parcel of the Comelec’s
Request for Proposal (RFP). The RFP, on page 26, even states that the ballot counting
machines and ballot counting software “must have an accuracy rating of 99.9995% (not
merely 99.995%) or better as certified by a reliable independent testing agency.”

When questioned on this matter during the Oral Argument, Commissioner Borra tried to
wash his hands by claiming that the required accuracy rating of 99.9995 percent had been
set by a private sector group in tandem with Comelec. He added that the Commission had
merely adopted the accuracy rating as part of the group’s recommended bid requirements,
which it had not bothered to amend even after being advised by DOST that such standard
was unachievable. This excuse, however, does not in any way lessen Comelec’s
responsibility to adhere to its own published bidding rules, as well as to see to it that the
consortium indeed meets the accuracy standard. Whichever accuracy rating is the right
standard — whether 99.995 or 99.9995 percent — the fact remains that the machines of
the so—called “consortium” failed to even reach the lesser of the two. On this basis
alone, it ought to have been disqualified and its bid rejected outright.

At this point, the Court stresses that the essence of public bidding is violated by the
practice of requiring very high standards or unrealistic specifications that cannot be met
— like the 99.9995 percent accuracy rating in this case — only to water them
down after the bid has been award. Such scheme, which discourages the entry of
prospective bona fide bidders, is in fact a sure indication of fraud in the bidding, designed
to eliminate fair competition. Certainly, if no bidder meets the mandatory requirements,
standards or specifications, then no award should be made and a failed bidding declared.

Failure of Software to Detect

Previously Downloaded Data

Furthermore, on page 6 of the BAC Report, it appears that the “consortium” as well as
TIM failed to meet another key requirement — for the counting machine’s software
program to be able to detect previously downloaded precinct results and to prevent these
from being entered again into the counting machine. This same deficiency on the part of
both bidders reappears on page 7 of the BAC Report, as a result of the recurrence of their
failure to meet the said key requirement.

That the ability to detect previously downloaded data at different canvassing or

consolidation levels is deemed of utmost importance can be seen from the fact that it is
repeated three times in the RFP. On page 30 thereof, we find the requirement that
the city/municipal canvassing system software must be able to detect previously
downloaded precinct results and prevent these from being “inputted” again into the
system. Again, on page 32 of the RFP, we read that the provincial/district canvassing
system software must be able to detect previously downloaded city/municipal results and
prevent these from being “inputted” again into the system. And once more, on page 35 of
the RFP, we find the requirement that the national canvassing system software must be
able to detect previously downloaded provincial/district results and prevent these from
being “inputted” again into the system.

Once again, though, Comelec chose to ignore this crucial deficiency, which should have
been a cause for the gravest concern. Come May 2004, unscrupulous persons may take
advantage of and exploit such deficiency by repeatedly downloading and feeding into the
computers results favorable to a particular candidate or candidates. We are thus
confronted with the grim prospect of election fraud on a massive scale by means of just a
few key strokes. The marvels and woes of the electronic age!
Inability to Print
the Audit Trail

But that grim prospect is not all. The BAC Report, on pages 6 and 7, indicate that the
ACMs of both bidders were unable to print the audit trail without any loss of data. In the
case of MPC, the audit trail system was “not yet incorporated” into its ACMs.

This particular deficiency is significant, not only to this bidding but to the cause of free
and credible elections. The purpose of requiring audit trails is to enable Comelec to trace
and verify the identities of the ACM operators responsible for data entry and
downloading, as well as the times when the various data were downloaded into the
canvassing system, in order to forestall fraud and to identify the perpetrators.

Thus, the RFP on page 27 states that the ballot counting machines and ballot counting
software must print an audit trail of all machine operations for documentation and
verification purposes. Furthermore, the audit trail must be stored on the internal storage
device and be available on demand for future printing and verifying. On pages 30—31,
the RFP also requires that the city/municipal canvassing system software be able to print
an audit trail of the canvassing operations, including therein such data as the date and
time the canvassing program was started, the log—in of the authorized users (the identity
of the machine operators), the date and time the canvass data were downloaded into the
canvassing system, and so on and so forth. On page 33 of the RFP, we find the same
audit trail requirement with respect to the provincial/district canvassing system software;
and again on pages 35—36 thereof, the same audit trail requirement with respect to
the national canvassing system software.

That this requirement for printing audit trails is not to be lightly brushed aside by the
BAC or Comelec itself as a mere formality or technicality can be readily gleaned from
the provisions of Section 7 of RA 8436, which authorizes the Commission to use an
automated system for elections.

The said provision which respondents have quoted several times, provides that ACMs are
to possess certain features divided into two classes: those that the statute itself
considers mandatory and other features or capabilities that the law deems optional.
Among those considered mandatory are “provisions for audit trails”! Section 7 reads as
follows: “The System shall contain the following features: (a) use of appropriate ballots;
(b) stand—alone machine which can count votes and an automated system which can
consolidate the results immediately; (c) with provisions for audit trails; (d) minimum
human intervention; and (e) adequate safeguard/security measures.” (Italics and
emphases supplied.)

In brief, respondents cannot deny that the provision requiring audit trails is indeed
mandatory, considering the wording of Section 7 of RA 8436. Neither can Respondent
Comelec deny that it has relied on the BAC Report, which indicates that the machines or
the software was deficient in that respect. And yet, the Commission simply disregarded
this shortcoming and awarded the Contract to private respondent, thereby violating the
very law it was supposed to implement.

C.

Inadequacy of Post Facto

  Remedial Measures

Respondents argue that the deficiencies relating to the detection of previously

downloaded data, as well as provisions for audit trails, are mere shortcomings or minor
deficiencies in software or programming, which can be rectified. Perhaps Comelec
simply relied upon the BAC Report, which states on page 8 thereof that “Mega Pacific
failed in 8 items[;] however these are mostly on the software which can be corrected by
re—programming . . . and therefore can be readily corrected.”

The undersigned ponente’s questions, some of which were addressed to Commissioner

Borra during the Oral Argument, remain unanswered to this day. First of all, who made
the determination that the eight “fail” marks of Mega Pacific were on account of the
software — was it DOST or TWG? How can we be sure these failures were not the
results of machine defects? How was it determined that the software could actually be re
—programmed and thereby rectified? Did a qualified technical expert read and analyze
the source code[49] for the programs and conclude that these could be saved and
remedied? (Such determination cannot be done by any other means save by the
examination and analysis of the source code.)

Who was this qualified technical expert? When did he carry out the study? Did he
prepare a written report on his findings? Or did the Comelec just make a wild guess? It
does not follow that all defects in software programs can be rectified, and the programs
saved. In the information technology sector, it is common knowledge that there are many
badly written programs, with significant programming errors written into them; hence it
does not make economic sense to try to correct the programs; instead, programmers
simply abandon them and just start from scratch. There’s no telling if any of these
programs is unrectifiable, unless a qualified programmer reads the source code.

And if indeed a qualified expert reviewed the source code, did he also determine how
much work would be needed to rectify the programs? And how much time and money
would be spent for that effort? Who would carry out the work? After the rectification
process, who would ascertain and how would it be ascertained that the programs have
indeed been properly rectified, and that they would work properly thereafter? And of
course, the most important question to ask: could the rectification be done in time for the
elections in 2004?
Clearly, none of the respondents bothered to think the matter through. Comelec simply
took the word of the BAC as gospel truth, without even bothering to inquire from DOST
whether it was true that the deficiencies noted could possibly be remedied by re—
programming the software. Apparently, Comelec did not care about the software, but
focused only on purchasing the machines.

What really adds to the Court’s dismay is the admission made by Commissioner Borra
during the Oral Argument that the software currently being used by Comelec was merely
the “demo” version, inasmuch as the final version that would actually be used in the
elections was still being developed and had not yet been finalized.

It is not clear when the final version of the software would be ready for testing and
deployment. It seems to the Court that Comelec is just keeping its fingers crossed and
hoping the final product would work. Is there a “Plan B” in case it does not? Who
knows? But all these software programs are part and parcel of the bidding and the
Contract awarded to the Consortium. Why is it that the machines are already being
brought in and paid for, when there is as yet no way of knowing if the final version of the
software would be able to run them properly, as well as canvass and consolidate the
results in the manner required?

The counting machines, as well as the canvassing system, will never work
properly without the correct software programs. There is an old adage that is still valid to
this day: “Garbage in, garbage out.” No matter how powerful, advanced and sophisticated
the computers and the servers are, if the software being utilized is defective or has been
compromised, the results will be no better than garbage. And to think that what is at stake
here is the 2004 national elections — the very basis of our democratic life.

Correction of Defects?

To their Memorandum, public respondents proudly appended 19 Certifications issued by

DOST declaring that some 285 counting machines had been tested and had passed the
acceptance testing conducted by the Department on October 8—18, 2003. Among those
tested were some machines that had failed previous tests, but had undergone adjustments
and thus passed re—testing.

Unfortunately, the Certifications from DOST fail to divulge in what manner and by what
standards or criteria the condition, performance and/or readiness of the machines were re
—evaluated and re—appraised and thereafter given the passing mark. Apart from that
fact, the remedial efforts of respondents were, not surprisingly, apparently focused again
on the machines — the hardware. Nothing was said or done about the software — the
deficiencies as to detection and prevention of downloading and entering previously
downloaded data, as well as the capability to print an audit trail. No matter how many
times the machines were tested and re—tested, if nothing was done about the
programming defects and deficiencies, the same danger of massive electoral fraud
remains. As anyone who has a modicum of knowledge of computers would say, “That’s
elementary!”

And only last December 5, 2003, an Inq7.net news report quoted the Comelec chair as
saying that the new automated poll system would be used nationwide in May 2004, even
as the software for the system remained unfinished. It also reported that a certain Titus
Manuel of the Philippine Computer Society, which was helping Comelec test the
hardware and software, said that the software for the counting still had to be submitted
on December 15, while the software for the canvassing was due in early January.

Even as Comelec continues making payments for the ACMs, we keep asking ourselves:
who is going to ensure that the software would be tested and would work properly?

At any rate, the re—testing of the machines and/or the 100 percent testing of all machines
(testing of every single unit) would not serve to eradicate the grave abuse of discretion
already committed by Comelec when it awarded the Contract on April 15, 2003, despite
the obvious and admitted flaws in the bidding process, the failure of the “winning bidder”
to qualify, and the inability of the ACMs and the intended software to meet the bid
requirements and rules.

Comelesuasivec’s Latest
“Assurances” Are
Unper

Even the latest pleadings filed by Comelec do not serve to allay our apprehensions. They
merely affirm and compound the serious violations of law and gravely abusive acts it has
committed. Let us examine them.

The Resolution issued by this Court on December 9, 2003 required respondents to inform
it as to the number of ACMs delivered and paid for, as well as the total payment made to
date for the purchase thereof. They were likewise instructed to submit a certification from
the DOST attesting to the number of ACMs tested, the number found to be defective; and
“whether the reprogrammed software has been tested and found to have complied with
the requirements under Republic Act No. 8436.”[50]

In its “Partial Compliance and Manifestation” dated December 29, 2003, Comelec
informed the Court that 1,991 ACMs had already been delivered to the Commission as of
that date. It further certified that it had already paid the supplier the sum of
P849,167,697.41, which corresponded to 1,973 ACM units that had passed the
acceptance testing procedures conducted by the MIRDC—DOST[51] and which had
therefore been accepted by the poll body.
In the same submission, for the very first time, Comelec also disclosed to the Court the
following: 

“The Automated Counting and Canvassing Project involves not only the manufacturing
of the ACM hardware but also the development of three (3) types of software, which are
intended for use in the following: 

1. Evaluation of Technical Bids 

 
2. Testing and Acceptance Procedures 

3. Election Day Use.”

Purchase of the First Type of

Software Without Evaluation

In other words, the first type of software was to be developed solely for the purpose of
enabling the evaluation of the bidder’s technical bid. Comelec explained thus: “In
addition to the presentation of the ACM hardware, the bidders were required to develop
a ‘base’ software program that will enable the ACM to function properly. Since the
software program utilized during the evaluation of bids is not the actual software
program to be employed on election day, there being two (2) other types of software
program that will still have to be developed and thoroughly tested prior to actual
election day use, defects in the ‘base’ software that can be readily corrected by
reprogramming are considered minor in nature, and may therefore be waived.”

In short, Comelec claims that it evaluated the bids and made the decision to award the
Contract to the “winning” bidder partly on the basis of the operation of the ACMs
running a “base” software. That software was therefore nothing but a sample or “demo”
software, which would not be the actual one that would be used on election day. Keeping
in mind that the Contract involves the acquisition of not just the ACMs or the hardware,
but also the software that would run them, it is now even clearer that the Contract was
awarded without Comelec having seen, much less evaluated, the final product — the
software that would finally be utilized come election day. (Not even the “near—final”
product, for that matter).

What then was the point of conducting the bidding, when the software that was the
subject of the Contract was still to be created and could conceivably undergo
innumerable changes before being considered as being in final form? And that is not all!
No Explanation for Lapses
  in the Second Type of Software

The second phase, allegedly involving the second type of software, is simply
denominated “Testing and Acceptance Procedures.” As best as we can construe, Comelec
is claiming that this second type of software is also to be developed and delivered by the
supplier in connection with the “testing and acceptance” phase of the acquisition process.
The previous pleadings, though — including the DOST reports submitted to this Court —
have not heretofore mentioned any statement, allegation or representation to the effect
that a particular set of software was to be developed and/or delivered by the supplier in
connection with the testing and acceptance of delivered ACMs.

What the records do show is that the imported ACMs were subjected to the testing and
acceptance process conducted by the DOST. Since the initial batch delivered included a
high percentage of machines that had failed the tests, Comelec asked the DOST to
conduct a 100 percent testing; that is, to test every single one of the ACMs delivered.
Among the machines tested on October 8 to 18, 2003, were some units that had failed
previous tests but had subsequently been re—tested and had passed. To repeat, however,
until now, there has never been any mention of a second set or type of software
pertaining to the testing and acceptance process.

In any event, apart from making that misplaced and uncorroborated claim, Comelec in
the same submission also professes (in response to the concerns expressed by this Court)
that the reprogrammed software has been tested and found to have complied with the
requirements of RA 8436. It reasoned thus: “Since the software program is an inherent
element in the automated counting system, the certification issued by the MIRDC—DOST
that one thousand nine hundred seventy—three (1,973) units passed the acceptance test
procedures is an official recognition by the MIRDC—DOST that the software component
of the automated election system, which has been reprogrammed to comply with the
provisions of Republic Act No. 8436 as prescribed in the Ad Hoc Technical Evaluation
Committee’s ACM Testing and Acceptance Manual, has passed the MIRDC—DOST
tests.”

The facts do not support this sweeping statement of Comelec. A scrutiny of the MIRDC
—DOST letter dated December 15, 2003,[52] which it relied upon, does not justify its
grand conclusion. For clarity’s sake, we quote in full the letter—certification, as follows: 

“15 December 2003

“HON. RESURRECCION Z. BORRA

Commissioner—in—Charge
Phase II, Modernization Project
Commission on Elections
Intramuros, Manila

Attention: Atty. Jose M.

Tolentino, Jr.
  Project Director

“Dear Commissioner Borra:

“We are pleased to submit 11 DOST Test Certifications representing 11 lots and covering
158 units of automated counting machines (ACMs) that we have tested from 02—12
December 2003. 

“To date, we have tested all the 1,991 units of ACMs, broken down as follow: (sic)

1st batch — 4th batch —
30 units 438 units
2nd batch — 5th batch —
288 units 438 units
3rd batch — units 6th batch
414 — 383 units
“It should be noted that a total of 18 units have failed the test. Out of these 18 units, only
one (1) unit has failed the retest. 

“Thank you and we hope you will find everything in order. 

“Very truly yours, 

“ROLANDO T. VILORIA, CESO III

Executive Director cum
Chairman, DOST—Technical Evaluation Committee” 

Even a cursory glance at the foregoing letter shows that it is completely bereft of
anything that would remotely support Comelec’s contention that the “software
component of the automated election system x x x has been reprogrammed to comply
with” RA 8436, and “has passed the MIRDC—DOST tests.” There is no mention at all of
any software reprogramming. If the MIRDC—DOST had indeed undertaken the
supposed reprogramming and the process turned out to be successful, that agency would
have proudly trumpeted its singular achievement.

How Comelec came to believe that such reprogramming had been undertaken is unclear.
In any event, the Commission is not forthright and candid with the factual details. If
reprogramming has been done, who performed it and when? What exactly did the process
involve? How can we be assured that it was properly performed? Since the facts attendant
to the alleged reprogramming are still shrouded in mystery, the Court cannot give any
weight to Comelec’s bare allegations.

The fact that a total of 1,973 of the machines has ultimately passed the MIRDC—DOST
tests does not by itself serve as an endorsement of the soundness of the software program,
much less as a proof that it has been reprogrammed. In the first place, nothing on record
shows that the tests and re—tests conducted on the machines were intended to address the
serious deficiencies noted earlier. As a matter of fact, the MIRDC—DOST letter does not
even indicate what kinds of tests or re—tests were conducted, their exact nature and
scope, and the specific objectives thereof.[53] The absence of relevant supporting
documents, combined with the utter vagueness of the letter, certainly fails to inspire
belief or to justify the expansive confidence displayed by Comelec. In any event, it goes
without saying that remedial measures such as the alleged reprogramming cannot in any
way mitigate the grave abuse of discretion already committed as early as April 15, 2003.

Rationale of Public Bidding Negated

by the Third Type of Software

Respondent Comelec tries to assuage this Court’s anxiety in these words: “The
reprogrammed software that has already passed the requirements of Republic Act No.
8436 during the MIRDC—DOST testing and acceptance procedures will require further
customization since the following additional elements, among other things, will have to
be considered before the final software can be used on election day: 1. Final Certified
List of Candidates x x x 2. Project of Precincts x x x 3. Official Ballot Design and
Security Features x x x 4. Encryption, digital certificates and digital signatures . . . The
certified list of candidates for national elective positions will be finalized on or before 23
January 2004 while the final list of projects of precincts will be prepared also on the
same date. Once all the above elements are incorporated in the software program, the
Test Certification Group created by the Ad Hoc Technical Evaluation Committee will
conduct meticulous testing of the final software before the same can be used on election
day. In addition to the testing to be conducted by said Test Certification Group, the
Comelec will conduct mock elections in selected areas nationwide not only for purposes
of public information but also to further test the final election day program. Public
respondent Comelec, therefore, requests that it be given up to 16 February 2004 to
comply with this requirement.”

The foregoing passage shows the imprudent approach adopted by Comelec in the bidding
and acquisition process. The Commission says that before the software can be utilized on
election day, it will require “customization” through addition of data — like the list of
candidates, project of precincts, and so on. And inasmuch as such data will become
available only in January 2004 anyway, there is therefore no perceived need on
Comelec’s part to rush the supplier into producing the final (or near—final) version of the
software before that time. In any case, Comelec argues that the software needed for the
electoral exercise can be continuously developed, tested, adjusted and perfected,
practically all the way up to election day, at the same time that the Commission is
undertaking all the other distinct and diverse activities pertinent to the elections.

Given such a frame of mind, it is no wonder that Comelec paid little attention to the
counting and canvassing software during the entire bidding process, which took place in
February—March 2003. Granted that the software was defective, could not detect and
prevent the re—use of previously downloaded data or produce the audit trail — aside
from its other shortcomings — nevertheless, all those deficiencies could still be corrected
down the road. At any rate, the software used for bidding purposes would not be the same
one that will be used on election day, so why pay any attention to its defects? Or to the
Comelec’s own bidding rules for that matter?

Clearly, such jumbled ratiocinations completely negate the rationale underlying the
bidding process mandated by law.

At the very outset, the Court has explained that Comelec flagrantly violated the public
policy on public biddings (1) by allowing MPC/MPEI to participate in the bidding even
though it was not qualified to do so; and (2) by eventually awarding the Contract to
MPC/MPEI. Now, with the latest explanation given by Comelec, it is clear that the
Commission further desecrated the law on public bidding by permitting the winning
bidder to change and alter the subject of the Contract (the software), in effect allowing a
substantive amendment without public bidding.

This stance is contrary to settled jurisprudence requiring the strict application of pertinent
rules, regulations and guidelines for public bidding for the purpose of placing each
bidder, actual or potential, on the same footing. The essence of public bidding is, after
all, an opportunity for fair competition, and a fair basis for the precise comparison of
bids. In common parlance, public bidding aims to “level the playing field.” That means
each bidder must bid under the same conditions; and be subject to the same guidelines,
requirements and limitations, so that the best offer or lowest bid may be determined, all
other things being equal.

Thus, it is contrary to the very concept of public bidding to permit a variance between the
conditions under which bids are invited and those under which proposals are submitted
and approved; or, as in this case, the conditions under which the bid is won and those
under which the awarded Contract will be complied with. The substantive amendment of
the contract bidded out, without any public bidding — after the bidding process had been
concluded — is violative of the public policy on public biddings, as well as the spirit and
intent of RA 8436. The whole point in going through the public bidding exercise was
completely lost. The very rationale of public bidding was totally subverted by the
Commission.
From another perspective, the Comelec approach also fails to make sense. Granted that,
before election day, the software would still have to be customized to each precinct,
municipality, city, district, and so on, there still was nothing at all to prevent Comelec
from requiring prospective suppliers/bidders to produce, at the very start of the bidding
process, the “next—to—final” versions of the software (the best software the suppliers
had) — pre—tested and ready to be customized to the final list of candidates and project
of precincts, among others, and ready to be deployed thereafter. The satisfaction of such
requirement would probably have provided far better bases for evaluation and selection,
as between suppliers, than the so—called demo software.

Respondents contend that the bidding suppliers’ counting machines were previously used
in at least one political exercise with no less than 20 million voters. If so, it stands to
reason that the software used in that past electoral exercise would probably still be
available and, in all likelihood, could have been adopted for use in this instance. Paying
for machines and software of that category (already tried and proven in actual elections
and ready to be adopted for use) would definitely make more sense than paying the same
hundreds of millions of pesos for demo software and empty promises of usable programs
in the future.

But there is still another gut—level reason why the approach taken by Comelec is
reprehensible. It rides on the perilous assumption that nothing would go wrong; and that,
come election day, the Commission and the supplier would have developed, adjusted and
“re—programmed” the software to the point where the automated system could function
as envisioned. But what if such optimistic projection does not materialize? What if,
despite all their herculean efforts, the software now being hurriedly developed and tested
for the automated system performs dismally and inaccurately or, worse, is hacked and/or
manipulated?[54] What then will we do with all the machines and defective
software already paid for in the amount of P849 million of our tax money? Even more
important, what will happen to our country in case of failure of the automation?

The Court cannot grant the plea of Comelec that it be given until February 16, 2004 to be
able to submit a “certification relative to the additional elements of the software that will
be customized,” because for us to do so would unnecessarily delay the resolution of this
case and would just give the poll body an unwarranted excuse to postpone the 2004
elections. On the other hand, because such certification will not cure the gravely abusive
actions complained of by petitioners, it will be utterly useless.

Is this Court being overly pessimistic and perhaps even engaging in speculation? Hardly.
Rather, the Court holds that Comelec should not have gambled on the unrealistic
optimism that the supplier’s software development efforts would turn out well. The
Commission should have adopted a much more prudent and judicious approach to ensure
the delivery of tried and tested software, and readied alternative courses of action in case
of failure. Considering that the nation’s future is at stake here, it should have done no
less.

Epilogue

Once again, the Court finds itself at the crossroads of our nation’s history. At stake in this
controversy is not just the business of a computer supplier, or a questionable
proclamation by Comelec of one or more public officials. Neither is it about whether this
country should switch from the manual to the automated system of counting and
canvassing votes. At its core is the ability and capacity of the Commission on Elections to
perform properly, legally and prudently its legal mandate to implement the transition
from manual to automated elections.

Unfortunately, Comelec has failed to measure up to this historic task. As stated at the
start of this Decision, Comelec has not merely gravely abused its discretion in awarding
the Contract for the automation of the counting and canvassing of the ballots. It has also
put at grave risk the holding of credible and peaceful elections by shoddily accepting
electronic hardware and software that admittedly failed to pass legally mandated
technical requirements. Inadequate as they are, the remedies it proffers post facto do not
cure the grave abuse of discretion it already committed (1) on April 15, 2003, when it
illegally made the award; and (2) “sometime” in May 2003 when it executed the Contract
for the purchase of defective machines and non—existent software from a non—eligible
bidder.

For these reasons, the Court finds it totally unacceptable and unconscionable to place its
imprimatur on this void and illegal transaction that seriously endangers the breakdown of
our electoral system. For this Court to cop—out and to close its eyes to these illegal
transactions, while convenient, would be to abandon its constitutional duty of
safeguarding public interest.

As a necessary consequence of such nullity and illegality, the purchase of the machines
and all appurtenances thereto including the still—to—be—produced (or in Comelec’s
words, to be “reprogrammed”) software, as well as all the payments made therefor, have
no basis whatsoever in law. The public funds expended pursuant to the void Resolution
and Contract must therefore be recovered from the payees and/or from the persons who
made possible the illegal disbursements, without prejudice to possible criminal
prosecutions against them.

Furthermore, Comelec and its officials concerned must bear full responsibility for the
failed bidding and award, and held accountable for the electoral mess wrought by their
grave abuse of discretion in the performance of their functions. The State, of course, is
not bound by the mistakes and illegalities of its agents and servants.
True, our country needs to transcend our slow, manual and archaic electoral process. But
before it can do so, it must first have a diligent and competent electoral agency that can
properly and prudently implement a well—conceived automated election system.

At bottom, before the country can hope to have a speedy and fraud—free automated
election, it must first be able to procure the proper computerized hardware and software
legally, based on a transparent and valid system of public bidding. As in any democratic
system, the ultimate goal of automating elections must be achieved by a legal, valid and
above—board process of acquiring the necessary tools and skills therefor. Though the
Philippines needs an automated electoral process, it cannot accept just any system shoved
into its bosom through improper and illegal methods. As the saying goes, the end never
justifies the means. Penumbral contracting will not produce enlightened results.

WHEREFORE, the Petition is GRANTED. The Court hereby

declares NULL and VOID Comelec Resolution No. 6074 awarding the contract for Phase
II of the CAES to Mega Pacific Consortium (MPC). Also declared null and void is the
subject Contract executed between Comelec and Mega Pacific eSolutions (MPEI).
[55]
 Comelec is further ORDERED to refrain from implementing any other contract or
agreement entered into with regard to this project.

Let a copy of this Decision be furnished the Office of the Ombudsman which shall
determine the criminal liability, if any, of the public officials (and conspiring private
individuals, if any) involved in the subject Resolution and Contract. Let the Office of the
Solicitor General also take measures to protect the government and vindicate public
interest from the ill effects of the illegal disbursements of public funds made by reason of
the void Resolution and Contract.

SO ORDERED.

EN BANC
[ G.R. No. 161265, February 24, 2004 ]
LABAN NG DEMOKRATIKONG PILIPINO, REPRESENTED BY ITS
CHAIRMAN EDGARDO J. ANGARA VS. THE COMMISION ON
ELECTIONS AND AGAPITO A. AQUINO

DECISION
TINGA, J.:

The Bible tells the story of how two women came to King Solomon to decide  who 
among  them  is  the baby’s true mother.  King Solomon, in his legendary wisdom,
awarded the baby to the woman who gave up her claim after he threatened to split the
baby into two.

It is fortunate that the two women did not ask the Commission on Elections (COMELEC)
to decide the baby’s fate; otherwise, it would have cut the baby in half.  For that is what
the COMELEC exactly did in this case.

On December 8, 2003, the General Counsel of the Laban ng Demokratikong Pilipino

(LDP), a registered political party, informed the COMELEC by way of Manifestation that
only the Party Chairman, Senator Edgardo J. Angara, or his authorized representative
may endorse the certificate of candidacy of the party’s official candidates.  The
same Manifestation stated that Sen. Angara had placed the LDP Secretary General,
Representative Agapito A. Aquino, on “indefinite forced leave.”  In the meantime,
Ambassador Enrique A. Zaldivar was designated Acting Secretary General. 
The Manifestation concluded with this prayer:
A.            The Honorable Commission recognizes [sic] only those Certificates of
Candidacy to which are attached Certificates of Nomination executed by LDP Party
Chairman Edgardo J. Angara or by such other officers of the LDP whom he may
authorize in writing, and whose written authorizations shall be deposited with the
Honorable Commission by the LDP General Counsel.

B.            The Honorable Commission declares [sic] as a nullity, denies [sic] due course
or cancels [sic] all Certificates of Candidacy not endorsed by LDP Party Chairman
Angara or by such other LDP officials as may be authorized by him.

C.           The Honorable Commission takes [sic] note of the designation of Ambassador
Enrique “Ike” A. Zaldivar as Acting Secretary General of the LDP, and for the Honorable
Commission to honor and recognize the official acts, to the exclusion of everyone, of
Ambassador Zaldivar for and in behalf of the LDP as Secretary General. [1]
On December 16, 2003, Rep. Aquino filed his Comment, contending that the Party
Chairman does not have the authority to impose disciplinary sanctions on the Secretary
General.  As the Manifestation filed by the LDP General Counsel has no basis, Rep.
Aquino asked the COMELEC to disregard the same.

On December 17, 2003, the parties agreed to file a joint manifestation pending which the
proceedings were deemed suspended.  On December 22, 2003, however, only the LDP
General Counsel filed an Urgent Manifestation reiterating the contents of the December
8, 2003 Manifestation.  The COMELEC also received a Letter from Rep. Aquino stating
that the parties were unable to arrive at a joint manifestation.

The next day, the LDP General Counsel filed a Second Urgent Manifestation disputing
newspaper accounts that Rep. Aquino had suspended Sen. Angara as Party Chairman.

On December 26, 2003, the COMELEC issued an Order requiring the parties to file a
verified petition.  It turned out that, two days before, Sen. Angara had submitted a
verified Petition, in essence, reiterating the contents of its previous Manifestations. 
Attached to the Petition was a Resolution[2] adopted by the LDP National Executive
Council, stating:
WHEREAS, on September 25, 2003, the National Executive Council of the Laban ng
Demokratikong Pilipino (LDP) convened and unanimously passed a resolution granting
full authority to Party Chairman Edgardo J. Angara to enter, negotiate and conclude a
coalition agreement with other like-minded opposition parties, aggrupations and interest
groups with the sole purpose of uniting the political opposition and fielding a unity ticket
for the May 10, 2004 elections;

WHEREAS, on December 3, 2003, the LDP, together with the Puwersa ng Masang
Pilipino (PMP) and the Partido Demokratiko ng Pilipinas — LABAN (PDP-LABAN)
forged a coalition to form the Koalisyon ng Nagkakaisang Pilipino (KNP);

WHEREAS, the Executive Committee of the KNP subsequently adopted its resolution
entitled: “Resolution Choosing Mr. Fernando Poe, Jr. as the Standard Bearer of the
Koalisyon ng Nagkakaisang Pilipino (KNP) for President of the Republic of the
Philippines in the May 10, 2004 National Elections”;

    . . . .

WHEREAS, the process of unification of the political opposition and the actions taken in
connection therewith by Chairman Angara and by other governing bodies of the LDP
required the taking of immediate and forceful action by them to preserve and protect the
integrity, credibility, unity and solidarity of the LDP, and ensure the attainment of
unification of the political opposition;

WHEREAS, such immediate and forceful action include those that have to do with pre-
emptive efforts to diffuse the chaos, confusion and disunity projected by the
pronouncements and acts of some officers and members to the general membership of the
LDP and the electorate, such as the one taken by the Regional Committee for Region VI
(Western Visayas) on December 6, 2003; the enforcement of order in the LDP through
the voice of a central leadership in command in an otherwise extraordinary and
emergency situation, such as the one taken by Party Chairman Angara on December 6,
2003; the filing of the Manifestation with the COMELEC on the matter of the authorized
signatories for the nominations and, the adoption of resolutions by the regional
committees affirming their trust and confidence in Chairman Angara, and authorizing
him to choose the presidential standard bearer for the May 10, 2004 elections; NOW
THEREFORE, BE IT

RESOLVED, AS IT IS HEREBY RESOLVED, By the National Executive Council, to

ratify and confirm the Covenant of National Unity, the Declaration of Unity entered into
by Party Chairman Edgardo J. Angara, and all acts and decisions taken by him to enforce
and implement the same;

RESOLVED, FURTHER, To ratify and confirm all other acts and decisions of Chairman
Angara and other governing bodies to preserve the integrity, credibility, unity and
solidarity of the LDP; and,

RESOLVED, FINALLY, To reiterate the vote of confidence of the National Executive

Council in, and support to, the continued efforts of Chairman Angara to unite the political
opposition.[3]
Rep. Aquino filed his Answer to the Petition on December 30, 2003.  The COMELEC
heard the parties on oral arguments on the same day, after which the case was submitted
for resolution.

Pending resolution, a Certificate of Nomination of Sen. Panfilo Lacson as LDP candidate

for President was filed with the COMELEC.  The Certificate of Nomination was signed
by Rep. Aquino as LDP Secretary General.

On January 6, 2004, the COMELEC came to a decision.

The Commission identified the sole issue as “who among the [LDP] officers [are]
authorized to authenticate before the Commission that the person filing the certificate of
candidacy as party nominee for a certain position is the official candidate of the party
chosen in accordance with its Constitution.”[4]

The COMELEC recognized that it “has the authority to act on matters pertaining to ‘the
ascertainment of the identity of [a] political party and its legitimate officers….’”[5]  In the
same breath, however, it held that “internal party matters and wranglings [sic] are purely
for the party members to settle among themselves and any unsettled controversy should
be brought to the proper forum with jurisdiction.” The “question of who was suspended
by whom” was thus left for such proper forum to resolve.[6] Noting that “the intramurals
in the LDP as an internal party matter seems to be irreconcilable for the present when the
filing of Certificate of Candidacy and Certificate of Nomination are about to reach the
deadline,” the COMELEC disposed of the Petition in the following fashion:
WHEREFORE, premises considered, the petition is GRANTED with LEGAL
EQUITY for both Petitioner and Oppositor.  The candidates for President down to the
last Sangguniang Bayan Kagawad nominated and endorsed by LDP Chairman Edgardo J.
Angara are recognized by the Commission as official candidates of LDP “Angara
Wing”.  The candidates from President down to the last Sanggniang Bayan Kagawad as
nominated and endorsed by LDP Secretary General Agapito “Butz” Auquino are
recognized as official candidates of LDP “Aquino Wing”.

Consequently, each faction or “Wing” is entitled to a representative to any election

committee to which it may be entitled as created by the Commission for the May 10,
2004 elections.  For the copies of the election returns, the “Angara Wing” will be
entitled to the copies corresponding to odd number of precincts, that is, Precinct Nos. 1,
3, 5, etc., and for the “Aquino Wing” to the even number of precincts, that is Precinct
Nos. 2, 4, 6, etc.  This is on the assumption that the LDP or as a party within a registered
Political Coalition becomes a recognized and denominated as a Dormant [sic] Minority
Party under the Election Laws.  The two LDP “Wings” are further entitled to and be
accorded the rights and privileges with corresponding legal obligations under Election
Laws.[7]
Commissioners Luzviminda G. Tancangco, Ralph C. Lantion, Resurreccion Z. Borra and
Florentino A. Tuason, Jr. concurred in the Resolution authored by Commissioner Rufino
S.B. Javier.  Chair Benjamin S. Abalos, Sr., joined by Commissioner Mehol K. Sadain,
submitted dissenting opinions.

Sen. Angara thus filed the present petition for Certiorari[8] assailing the

COMELEC Resolution for having been issued with grave abuse of discretion.

Thereafter, Rep. Aquino filed his Comment.

The Office of the Solicitor General submitted a Manifestation and Motion praying for the
granting of the Petition.  The COMELEC thus filed a separate Comment to the Petition.

The COMELEC correctly stated that “the ascertainment of the identity of [a] political
party and its legitimate officers” is a matter that is well within its authority.  The source
of this authority is no other than the fundamental law itself, which vests upon the
COMELEC the power and function to enforce and administer all laws and regulations
relative to the conduct of an election.[9] In the exercise of such power and in the discharge
of such function, the Commission is endowed with ample “wherewithal” and
“considerable latitude in adopting means and methods that will ensure the
accomplishment of the great objectives for which it was created to promote free, orderly
and honest elections.”[10]

Thus, in Kalaw v. Commission on Elections which involved the leadership fight in the

Liberal Party, [11] this Court held:
… that the respondent [COMELEC] has jurisdiction to hear and decide SP Case No. 85-
021 [involving a petition to prohibit Eva Estrada Kalaw “from usurping or using the title
or position of President of the Liberal Party”] in view of its powers under Article IX-C,
Section 2, of the Constitution to, among others, enforce and administer all laws relative to
the conduct of elections, decide all questions affecting elections, register and regulate
political parties, and insure orderly elections.  These powers include the determination of
the conflicting claims made in SP Case No. 85-021, which are likely to cause confusion
among the electorate if not resolved.  Additionally, the COMELEC is mandated by the
Election Code to inter alia require candidates to specify their political party affiliation in
their certificates of candidacy, allow political parties to appoint watchers, limit the
expenditures of each political party, determine whether or not a political party shall retain
its registration on the basis of its showing in the preceding elections, etc.  These matters
include the ascertainment of the identity of the political party and its legitimate
officers responsible for its acts and the resolution of such controversies as the one
now before it where one party appears to be divided into two wings under separate
leaders each claiming to be the president of the entire party…. [Emphasis supplied.]
Likewise in Palmares v. Commission on Elections,[12] to which the
assailed Resolution made reference and which involved the Nacionalista Party,[13] this
Court ruled
… that the COMELEC has jurisdiction over the issue of leadership in a political party. 
Under the Constitution, the COMELEC is empowered to register political parties [Sec.
2(5), Article IX-C.]  Necessarily, the power to act on behalf of a party and the
responsibility for the acts of such political party must be fixed in  certain persons acting
as its officers.  In the exercise of the power to register political parties, the COMELEC
must determine who these officers are.  Consequently, if there is any controversy as to
leadership, the COMELEC may, in a proper case brought before it, resolve the issue
incidental to its power to register political parties.
This Court then proceeded to quote from Kalaw, supra.

The two cited decisions find support in Sumulong v. Commission on

Elections[14] and Sotto v. Commission on Elections,[15] where this Court, in resolving the
issue as to who between the factions of a political party was entitled to nominate election
inspectors, necessarily settled claims to the party’s leadership.  Both cases were decided
without question on the COMELEC’s power to determine such claims.  In conformity
with jurisprudence, this Court did not identify the COMELEC’s jurisdiction as an issue
when this case was heard on oral argument.

There is no inconsistency between the above cases on the one hand and this Court’s more
recent ruling in Sinaca v. Mula[16] on the other.  In the latter case, this Court held:
A political party has the right to identify the people who constitute the association and to
select a standard bearer who best represents the party’s ideologies and preference. 
Political parties are generally free to conduct their internal affairs free from judicial
supervision; this common-law principle of judicial restraint, rooted in the constitutionally
protected right of free association, serves the public interest by allowing the political
processes to operate without undue interference.  Thus, the rule is that the determination
of disputes as to party nominations rests with the party, in the absence of statutes giving
the court’s [sic] jurisdiction.

Quintessentially, where there is no controlling statute or clear legal right involved,

the court will not assume jurisdiction to determine factional controversies within a
political party, but will leave the matter for determination by the proper tribunals of the
party itself or by the electors at the polls.  Similarly, in the absence of specific
constitutional or legislative regulations defining how nominations are to be made, or
prohibiting nominations from being made in certain ways, political parties may handle
such affairs, including nominations, in such manner as party rules may establish. 
[Emphasis supplied.]
Sinaca, unlike previous cases, did not involve the question of party identity or leadership;
hence, it was not necessary for the COMELEC to delve therein.  None of the candidates
involved in that case were claiming to be the political party’s sole candidate.

In the case at bar, the Party Chairman, purporting to represent the LDP, contends that
under the Party Constitution only he or his representative, to the exclusion of the
Secretary General, has the authority to endorse and sign party nominations.  The
Secretary General vigorously disputes this claim and maintains his own authority. 
Clearly, the question of party identity or leadership has to be resolved if the COMELEC
is to ascertain whether the candidates are legitimate party standard bearers or not.

The repercussions of the question of party identity and leadership do not end at the
validity of the endorsement of the certificates of candidacy of persons claiming to be the
party’s standard bearer.  The law grants a registered political party certain rights and
privileges,[17] which, naturally, redound to the benefit of its candidates.  It is also for this
significant dimension that Sinaca is not applicable in this case.  As conceded
in Sinaca itself, the Court will have to assume jurisdiction to determine factional
controversies within a political party where a controlling statute or clear legal right is
involved.[18] Verily, there is more than one law, as well as a number of clear legal rights,
that are at stake in the case at bar.

The law accords special treatment to political parties.  The dominant majority party, the
dominant minority party as determined by the COMELEC, for instance, is entitled to a
copy of the election returns.[19] The six (6) accredited major political parties may
nominate the principal watchers to be designated by the Commission.[20] The two
principal watchers representing the ruling coalition and the dominant opposition coalition
in a precinct shall, if available, affix their signatures and thumbmarks on the election
returns for that precinct.[21] Three (3) of the six accredited major political parties are
entitled to receive copies of the certificate of canvass.[22] Registered political parties
whose candidates obtained at least ten percent (10%) of the total votes cast in the next
preceding senatorial election shall each have a watcher and/or representative in the
procurement and watermarking of papers to be used in the printing of election returns and
official ballots and in the printing, numbering, storage, and distribution thereof.
[23]
 Finally, a candidate and his political party are authorized to spend more per voter than
a candidate without a political party.[24]

It is, therefore, in the interest of every political party not to allow persons it had not
chosen to hold themselves out as representatives of the party.  Corollary to the right of a
political party “to identify the people who constitute the association and to select a
standard bearer who best represents the party’s ideologies and preference” [25] is the right
to exclude persons in its association and to not lend its name and prestige to those which
it deems undeserving to represent its ideals.  A certificate of candidacy makes known to
the COMELEC that the person therein mentioned has been nominated by a duly
authorized political group empowered to act and that it reflects accurately the sentiment
of the nominating body.[26] A candidate’s political party affiliation is also printed
followed by his or her name in the certified list of candidates.[27] A candidate
misrepresenting himself or herself to be a party’s candidate, therefore, not only
misappropriates the party’s name and prestige but foists a deception upon the electorate,
who may unwittingly cast its ballot for him or her on the mistaken belief that he or she
stands for the party’s principles.  To prevent this occurrence, the COMELEC has the
power and the duty to step in and enforce the law not only to protect the party but, more
importantly, the electorate, in line with the Commission’s broad constitutional mandate to
ensure orderly elections.

Having revisited and clarified the jurisdiction of COMELEC to rule upon questions of
party identity and leadership as an incident to its enforcement powers, this Court cannot
help but be baffled by the COMELEC’s ruling declining to inquire into which party
officer has the authority to sign and endorse certificates of candidacy of the party’s
nominees.

The only issue in this case, as defined by the COMELEC itself, is who as between the
Party Chairman and the Secretary General has the authority to sign certificates of
candidacy of the official candidates of the party.  Indeed, the petitioners’ Manifestation
and Petition before the COMELEC merely asked the Commission to recognize only
those certificates of candidacy signed by petitioner Sen. Angara or his authorized
representative, and no other.

To resolve this simple issue, the COMELEC need only to turn to the Party Constitution. 
It need not go so far as to resolve the root of the conflict between the party officials.  It
need only resolve such questions as may be necessary in the exercise of its enforcement
powers.

The LDP has a set of national officers composed of, among others, the Party Chairman
and the Secretary General.[28] The Party Chairman is the Chief Executive Officer of the
Party, whose powers and functions include:
(1)     To represent the Party in all external affairs and concerns, sign documents for and
on its behalf, and call the meetings and be the presiding officer of the National Congress
and the National Executive Council….[29]
The Secretary General, on the other hand, assists the Party Chairman in overseeing the
day-to-day operations of the Party.  Among his powers and functions is:
(1)     When empowered by the Party Chairman, to sign documents for and on behalf
of the Party…. [30]
The Secretary General’s authority to sign documents, therefore, is only a delegated
power, which originally pertains to the Party Chairman.

Rep. Aquino claims that he was authorized to exercise to sign the party candidates’
certificates of candidacy in the previous elections.  Indeed, the COMELEC found that:
In fact, during the May 14, 2001 elections, oppositor Agapito “Butz’ Aquino, as LDP
Secretary General, was authorized by the LDP to sign for the Certificates of Nomination
of the LDP Senatorial Candidates, including the Certificate of Nomination for Senatorial
Candidate Edgardo J. Angara, a copy of said Certificate of Nomination and a copy of the
Certificate for Senator Edgardo J. Angara are attached as Annexes A and B, respectively. 
This action by Secretary General Aquino is in accordance with the Constitution and By-
laws of LDP, not questioned by the LDP signed by its Secretary General.  This
revocation has not been revoked or recalled by the National Congress of the LDP which
is the one authorized to nominate candidates for President and Vice-President,
respectively.[31]
Assuming that Rep. Aquino previously had such authority, this Court cannot share the
COMELEC’s finding that the same “has not been revoked or recalled.” No revocation of
such authority can be more explicit than the totality of Sen.
Angara’s Manifestations and Petition before the COMELEC, through which he informed
the Commission that Rep. Aquino’s had been placed on indefinite forced leave and that
Ambassador Zaldivar has been designated Acting Secretary General, who “shall
henceforth exercise all the powers and functions of the Secretary General under the
Constitution and By-Laws of the LDP.”[32] As the prerogative to empower Rep. Aquino to
sign documents devolves upon Sen. Angara, so he may choose, at his discretion, to
withhold or revoke such power.

Both respondents Rep. Aquino and COMELEC also cited Section 6 of COMELEC
Resolution No. 6453[33] as basis for the Party Secretary General’s authority to sign
certificates of candidacy.  Said Section 6 states:
SEC. 6.  Certificate of nomination of official candidates by political party. — The
certificate of nomination of registered political parties or coalitions of political parties of
their official candidates shall be filed not later than the last day for filing of certificates of
candidacy, which is January 2, 2004 duly signed and attested under oath by the party
president, chairman, secretary-general or any other duly authorized officer and shall
bear the acceptance of the nominee by affixing his signature in the space provided
therein. [Emphasis and underscoring supplied.]
Clearly, however, the above provision presupposes that the party president, chairman or
secretary-general has been “duly authorized” by the party to sign the certificate of
candidacy.  COMELEC Resolution No. 6453 cannot grant a party official greater
authority than what the party itself grants, lest such Resolution amount to a violation of
the party’s freedom of association.

Neither does the Party Secretary General have the power to nominate the official
candidates of the LDP.  That power resides in the governing bodies of the Party.[34] In
particular, the National Congress, which is the highest policy-making and governing
body of the Party, has the power
(6)     To nominate the official candidates of the Party for President, Vice President, and
Senators, and, whenever the corresponding conventions fail to meet or to make the
requisite nominations, to nominate the official candidates for municipal city,
congressional district, provincial and regional elective offices….[35]
Not only does Rep. Aquino insist on his power to sign Certificates of Candidacy on
behalf of the LDP but he would also deny Sen. Angara that power on account of the
latter’s preventive suspension.  It seems, however, that respondent has abandoned this
tack by the silence of his Memorandum on the matter.

In any case, it appears that on November 28, 2003, Representative Rolex Suplico, LDP
Region VI Regional Chairman, filed a complaint with Rep. Aquino against Party
Chairman Sen. Angara for disloyalty to the Party, gross violation of the Party
Constitution, and other divisive acts inimical to the interest of the party and its members. 
Rep. Aquino, as Secretary General, created a committee composed of three (3) members
of the LDP National Executive Council to investigate the complaint and recommend
appropriate action thereon.  On December 12, 2003, the investigating committee issued a
resolution placing Sen. Angara under preventive suspension effective immediately and
directing him to refrain from performing acts in behalf of the party until the committee
finishes its investigation and submits its final recommendations.

The authority to create the investigating committee supposedly rests on Section 9 (4),
Article VI of the LDP Constitution, which enumerates the powers and functions of the
Secretary General:
(4)     With the concurrence of the Party Chairman, to enforce Party discipline…. 
{Emphasis supplied.]
Evidently, just as Rep. Aquino has no power to sign and nominate candidates in behalf of
the LDP, neither does he have the power to enforce Party discipline or, as an incident
thereto, to create an investigating committee, without the Party Chairman’s concurrence. 
Much less does the investigating committee so created have the power to place the Party
Chairman under preventive suspension since its authority stems from a nullity.  Simply
put, the spring has no source.

The lack of Rep. Aquino’s authority to sign documents or to nominate candidates for the
LDP would not result in the denial of due course to or the cancellation of the certificates
of candidacy he may have signed on behalf of the LDP.[36] The exclusive ground for the
denial of due course to or the cancellation of a certificate of candidacy for any elective
office is that any material representation contained therein as required by law is false.
[37]
 Since the signature of Rep. Aquino was affixed either prior to, or on the basis of, the
challenged Resolution recognizing his authority to sign on behalf of the LDP, the same
would not constitute material representation that is false.  In such case, the candidates are
simply deemed as not nominated by the LDP and are considered independent candidates
pursuant to Section 7 of COMELEC Resolution No. 6453:
SEC. 7.  Effect of filing certificate of nomination. — A candidate who has not been
nominated by a registered political party or its duly authorized representative, or whose
nomination has not been submitted by a registered political party… shall be considered as
an independent candidate.
COMELEC Commissioner Sadain referred to the above provision in his Dissenting
Opinion, and this Court finds refreshing wisdom — so sorely wanting in the majority
opinion — in his suggestion that:
All other party members representing themselves to be candidates of the party shall not
be deprived of their right to file their respective certificates of candidacy and run for
office, if so qualified, but that they shall not be accorded the rights and privileges
reserved by election laws for official nominees of registered political parties.  Instead,
they shall be treated as independent candidates.[38]
From the foregoing, it is plain that the COMELEC misapplied equity in the present case. 
For all its conceded merits, equity is available only in the absence of law and not as its
replacement.[39] Equity is described as justice without legality, which simply means that it
cannot supplant, although it may, as often happens, supplement the law.[40] The
COMELEC should have decided the case on the basis of the party constitution and
election laws.  It chose not to because of its irrational fear of treading, as respondent
Aquino put it, on “unchartered” territories.[41] But, as shown above, these territories have
long been charted by jurisprudence and, in any case, the COMELEC need not have
sailed far from the shore to arrive at the correct conclusion.  In truth, the
COMELEC Resolution is indecision in the guise of equity.

Worse, the COMELEC divided the LDP into “wings,” each of which may nominate
candidates for every elective position.  Both wings are also entitled to representatives in
the election committees that the Commission may create.  In the event that the LDP is
accorded dominant minority party election status, election returns of odd-numbered
precincts shall be furnished the Angara wing and those of even-numbered precincts, the
Aquino wing.

By creating the two wings, the COMELEC effectively diffused the LDP’s strength and
undeniably emasculated its chance of obtaining the Commission’s nod as the dominant
minority party.
By allowing each wing to nominate different candidates, the COMELEC planted the
seeds of confusion among the electorate, who are apt to be confounded by two candidates
from a single political party.  In Recabo, Jr. v. Commission on Elections,[42] this Court
declared that the electoral process envisions one candidate from a political party for each
position, and disunity and discord amongst members of a political party should not be
allowed to create a mockery thereof.  The admonition against mocking the electoral
process not only applies to political parties but with greater force to the COMELEC.

By according both wings representatives in the election committees, the COMELEC has
eroded the significance of political parties and effectively divided the opposition.  The
COMELEC has lost sight of the unique political situation of the Philippines where, to
paraphrase Justice Perfecto’s concurring opinion in Sotto, supra, the administration party
has always been unnecessarily and dangerously too big and the opposition party too small
to be an effective check on the administration.  The purpose of according dominant status
and representation to a minority party is precisely to serve as an effective check on the
majority.  The COMELEC performed a disservice to the opposition and, ultimately, to
the voting public, as its Resolution facilitated, rather than forestalled, the division of the
minority party.

By splitting copies of the election returns between the two factions, the COMELEC has
fractured both wings.  The practical purpose of furnishing a party with a copy of the
election returns is to allow it to tally the results of the elections at the precinct level. 
Ultimately, it is a guard against fraud.  Thus, resort to copies thereof may be had when
the election returns are delayed, lost or destroyed,[43] or when they appear to be tampered
or falsified.[44]  A split party without a complete set of election returns cannot successfully
help preserve the sanctity of the ballot.

It bears reminding respondent Commission of this Court’s pronouncement in Peralta v.

Commission on Elections,[45] which, while made in the backdrop of a parliamentary form
of government, holds equally true under the present government structure:
… political parties constitute a basic element of the democratic institutional apparatus. 
Government derives its strength from the support, active or passive, of a coalition of
elements of society.  In modern times the political party has become the instrument for
the organization of societies.  This is predicated on the doctrine that government exists
with the consent of the governed.  Political parties perform an “essential function in the
management of succession to power, as well as in the process of obtaining popular
consent to the course of public policy.  They amass sufficient support to buttress the
authority of governments; or, on the contrary, they attract or organize discontent and
dissatisfaction sufficient to oust the government. In either case they perform the function
of the articulation of the interests and aspirations of a substantial segment of the citizenry,
usually in ways contended to be promotive of the national weal.”
The assailed COMELEC Resolution does not advance, but subverts, this philosophy
behind political parties.
As if to rationalize its folly, the COMELEC invokes the constitutional policy towards a
free and open party system.[46] This policy, however, envisions a system that shall “evolve
according to the free choice of the people,”[47] not one molded and whittled by the
COMELEC.  When the Constitution speaks of a multi-party system, it does not
contemplate the COMELEC splitting parties into two.  For doing just that, this pretender
to the throne of King Solomon acted whimsically and capriciously.  Certiorari lies
against it, indeed.

WHEREFORE, the assailed COMELEC Resolution is ANNULLED and

the Petition is GRANTED IN PART.  Respondent Commission on Elections is directed
to recognize as official candidates of the Laban ng Demokratikong Pilipino only those
whose Certificates of Candidacy are signed by LDP Party Chairman Senator Edgardo J.
Angara or his duly authorized representative/s.

SO ORDERED.

EN BANC
[ G.R. NO. 164439, January 23, 2006 ]
JEFFREY L. SANTOS, PETITIONER, VS. COMMISSION ON ELECTIONS
AND MACARIO E. ASISTIO III, RESPONDENTS.

DECISION

CARPIO, J.:

The Case

Before this Court is a petition for certiorari[1] assailing the Resolution[2] of the

Commission on Elections ("COMELEC") First Division in SPC No. 04-233 and Resolution
No. 7257[3] of the COMELEC En Banc. The COMELEC promulgated the two Resolutions on
29 June 2004.

The Antecedent Facts

Jeffrey L. Santos ("Santos") and Macario E. Asistio III ("Asistio") were candidates for the
position of Councilor for the Second District of Caloocan City in the 10 May 2004
Elections. On 18 May 2004, the City Board of Canvassers proclaimed Asistio as councilor-
elect for the Second District of Caloocan City. Based on the Canvass of Election Returns
and the Statement of Votes, Asistio garnered 45,163 votes and secured the sixth and
last slot for the position of Councilor while Santos placed seventh with 44,558 votes.

On 28 May 2004, Santos filed with the COMELEC a Petition, docketed SPC No. 04-233,
for Annulment of Proclamation on the Basis of Erroneous Canvass/Tallies of Votes.
Santos alleged that he was a victim of  "dagdag-bawas" and that his votes were reduced
in the Statement of Votes while Asistio's votes were increased. Santos further alleged
that based on the certified true copies of the NAMFREL's [4] election returns as well as the
Certificates of Votes submitted by the poll watchers in the Second District of Caloocan
City, he obtained 46,361 votes while Asistio garnered only 45,514 votes. Santos prayed
for the nullification of the proclamation of Asistio and for his declaration as the duly
elected Councilor of the Second District of Caloocan City.

The Ruling of the COMELEC First Division

In a Resolution promulgated on 29 June 2004, the COMELEC First Division dismissed SPC
No. 04-233 for lack of merit.

The COMELEC First Division ruled that: (1) Santos' lack of watchers and counsel during
the early stages of the canvassing proceedings is not a proper ground for the annulment
of Asistio's proclamation; (2) the documents submitted by Santos, consisting of a
compilation and tabulation of votes which he himself prepared, and which he based on
certified true copies of NAMFREL's election returns and the originals of various
Certificates of Votes submitted by the poll watchers, are not admissible in evidence; and
(3) Santos should have assailed the proceedings via a pre-proclamation controversy, or
through an election protest within ten days after the proclamation of Asistio, instead of
a petition for annulment of proclamation.

On 29 June 2004, or on the same date of the promulgation of the Resolution by the
COMELEC First Division, the COMELEC En Banc promulgated Resolution No. 7257, as
follows:

RESOLUTION NO. 7257

(OMNIBUS RESOLUTION ON PENDING CASES)
 WHEREAS, in connnection with the May 10, 2004 National and Local Elections,
various petitions docketed as Special Actions, Special Cases and Special Proceeding
Cases and other contentious cases were filed with the Office of the Clerk of the
Commission;

WHEREAS, the second paragraph of Sec. 16, Republic Act No. 7166, provides:

"All pre-proclamation cases pending before the Commission shall be deemed

terminated at the beginning of the term of office involved and the rulings of the boards
of canvassers concerned shall be deemed affirmed, without prejudice to the filing of a
regular election protest by the aggrieved party. However, proceedings may continue
when on the basis of the evidence thus far presented, the Commission determines that
the petition appears meritorious and accordingly issues an order for the proceeding to
continue or when appropriate order has been issued by the Supreme Court in a petition
for certiorari."

WHEREAS, the Commission has disposed of the pre-proclamation and other cases

brought before it for adjudication, except those whose disposition requires proceedings
extending beyond 30 June 2001;

NOW, THEREFORE, by virtue of its powers under the Constitution, the Omnibus Election
Code, Batas Pambansa Blg. 881, Republic Act Nos. 6646 and 7166, and other election
laws, the Commission RESOLVED, as it hereby RESOLVES:

1. All cases which were filed by private parties without timely payment of the
proper filing fee are hereby dismissed;

2. All cases which were filed beyond the reglementary period or not in the form
prescribed under appropriate provisions of the Omnibus Election Code, Republic
Act Nos. 6646 and 7166 are hereby likewise dismissed;

3. All other pre-proclamation cases which do not fall within the class of cases
specified under paragraphs (1) and (2) immediately preceding shall be deemed
terminated pursuant to Section 16, R.A. 7166 except those mentioned in
paragraph (4). Hence, all the rulings of boards of canvassers concerned are
deemed affirmed. Such boards of canvassers are directed to reconvene forthwith,
continue their respective canvass and proclaim the winning candidates
 accordingly, if the proceedings were suspended by virtue of pending pre-
proclamation cases;

4. All remaining pre-proclamation cases, which on the basis of the evidence thus far
presented, appear meritorious and/or are subject of orders by the Supreme
Court or this Commission in petitions for certiorari brought respectively to them
shall likewise remain active cases, thereby requiring the proceedings therein to
continue beyond 30 June 2004, until they are finally resolved; and

5. All petitions for disqualification, failure of elections or analogous cases, not being
pre-proclamation controversies and, therefore, not governed by Sections 17, 18,
19, 20, 21, and particularly, by the second paragraph of Sec. 6, Republic Act No.
7166, shall remain active cases, the proceedings to continue beyond June 30,
2004, until the issues therein are finally resolved by the Commission;

ACCORDINGLY, it is hereby ordered that the proceedings in the cases appearing on the
list annexed and made an integral part hereof, be continued to be heard and disposed
of by the Commission.

This resolution shall take effect immediately.[5]

Annexed to Resolution No. 7257 is a list of cases[6] that shall remain active before
the COMELEC until their final resolution. SPC No. 04-233 is not included in the list.

On 9 July 2004, Santos filed with the COMELEC En Banc a motion for the reconsideration
assailing the COMELEC First Division's Resolution.

On 30 August 2004, Santos filed before this Court a petition for certiorari assailing the
29 June 2004 Resolution of the COMELEC First Division and Resolution No. 7257 of the
COMELEC En Banc.

In his Comment on the petition, Asistio accused Santos of forum shopping. Asistio
informed the Court that the COMELEC En Banc only disposed of Santos' motion for
reconsideration in its Order of 15 September 2004 when it affirmed the 29 June 2004
Resolution of the COMELEC First Division. Hence, at the time of the filing of the petition
for certiorari  before this Court, Santos' motion for reconsideration was still pending
before the COMELEC En Banc.

Santos, in his Reply to Asistio's Comment, maintains that he is not guilty of forum
shopping because the petition before the Supreme Court only challenges Resolution No.
7257 and not the 29 June 2004 Resolution of the COMELEC First Division. Santos further
argues that by excluding SPC No. 04-233 from the list of cases annexed to Resolution
No. 7257, the COMELEC En Banc effectively terminated the case to its finality. Santos
claims that he only learned on 22 July 2004 of the exclusion of SPC No. 04-233 from the
list of cases, after the petition before this Court had been filed. However, he admits that
Resolution No. 7257 was published in the Philippine Daily Inquirer on 30 June 2004.

The Issues
The issues for resolution of this Court are:

1. Whether Santos is guilty forum shopping;

2. Whether the COMELEC First Division committed grave abuse of discretion in

dismissing SPC No. 04-233;

3. Whether the COMELEC En Banc committed grave abuse of discretion in excluding

SPC No. 04-233 from the list of cases annexed to Resolution No. 7257.

The Ruling of This Court

The petition has no merit.

Santos is Guilty of Forum-Shopping

Forum shopping is an act of a party, against whom an adverse judgment or order has
been rendered in one forum, of seeking and possibly securing a favorable opinion in
another forum, other than by appeal or special civil action for certiorari.[7] It may also be
the institution of two or more actions or proceedings grounded on the same cause on
the supposition that one or the other court would make a favorable disposition. [8]

In this case, Santos filed the petition for certiorari  before this Court during the pendency
of his motion for reconsideration with the COMELEC En Banc. The petition clearly states
that he is questioning the two Resolutions issued by the COMELEC: the 29 June 2004
Resolution of the COMELEC First Division in SPC No. 04-233 and the COMELEC En Banc
Resolution No. 7257.[9] It was only when Asistio, in his Comment, called the Court's
attention that Santos now belatedly asserts that he only seeks to challenge COMELEC
Resolution No. 7257 and not the Resolution of the COMELEC First Division. [10]

Santos stated in his petition before this Court that on 9 July 2004, he filed a motion for
reconsideration of the COMELEC First Division's Resolution. However, he did not
disclose that at the time of the filing of his petition, his motion for reconsideration was
still pending before the COMELEC En Banc. Santos did not also bother to inform the
Court of the denial of his motion for reconsideration by the COMELEC En Banc. Had
Asistio not called this Court's attention, we would have ruled on whether the COMELEC
First Division committed grave abuse of discretion in dismissing SPC No. 04-233, which is
one of the issues raised by Santos in this petition. This act of Santos alone constitutes a
ground for this Court's summary dismissal of his petition.

The Resolution of the COMELEC First Division has attained Finality

Had this Court been apprised at the outset of the pendency of Santos' motion for
reconsideration before the COMELEC En Banc, it would have dismissed the petition
outright for premature filing. When the COMELEC En Banc finally resolved the motion
for reconsideration, Santos no longer elevated the denial of his motion before this
Court. He could no longer do that without exposing his act of forum shopping. Thus, by
Santos' inaction, the Order of the COMELEC En Banc is now final and executory.

The Exclusion of SPC No. 04-233 in the List of Cases

Annexed To Resolution No. 7257 has become Moot

Contrary to Santos' claim, the COMELEC En Banc did not dismiss outright SPC No. 04-233
even though the case was excluded in the list annexed to Resolution No. 7257. The
COMELEC First Division in fact resolved SPC No. 04-233. When Santos filed a motion for
reconsideration, the COMELEC En Banc accepted, considered and disposed of the
motion. Hence, the issue of whether the COMELEC En Banc committed grave abuse of
discretion in excluding SPC No. 04-233 in the list of cases annexed to Resolution No.
7257 is now moot since the COMELEC in fact accepted, considered and disposed of SPC
No. 04-233.

WHEREFORE, we DISMISS the petition.
SO ORDERED.