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ELECTION LAW Reading Homework #2

FIELD OFFICES (refer to Field Offices PDF file)

READINGS:1. PURISIMA V. SALONGA

Republic of the Philippines

SUPREME COURTManilaEN BANCDECISION

December 31, 1965G.R. No. L-22335AMANTE P. PURISIMA, petitioner,vs.HON. ANGELINO C. SALANGA, Judge of the Court of First Instance of Ilocos Sur. THE PROVINCIAL BOARDOF CANVASSERS, THE COMMISSION ON ELECTIONS and GREGORIO CORDERO, respondents.Jose W. Diokno for petitioner.Provincial Fiscal Juvenal K. Guerrero for respondent Provincial Board of Canvassers, J .:In the election of November 12, 1963, Amante Purisima and Gregorio Cordero were among the candidates for any ofthe three offices of Provincial Board Member of Ilocos Sur. After the election or on November 25, 1963 the provincial

board of canvassers met and started canvassing the returns for said office.Purisima noted during the canvass that the returns from some precincts, forty-one (41) in all, showed on their facethat the words and figures for Corderos votes had been obviously and manifestly erased and superimposed withother words and figures. For purposes of comparison, the Nacionalista Party copies of the returns for the aforesaidprecincts were submitted to the board. A discrepancy of 5,042 votes in favor of Cordero was thereby found, thus:Provincial Treasurers copy:7,277 votes for CorderoNacionalista Partys copy2,235 votes for Cordero

A request for suspension of the canvass was thereupon made by Purisima. The board of canvassers denied saidrequest upon the ground that it was not yet ascertainable if the discrepancies would materially affect the result.Canvass proceeded.

After the returns had all been read, the result for the office of third (and last) member of the Provincial Board was thefollowing:Cordero

41,229 votesPurisima39,372 votes.Difference1,857 votesPurisima again called attention to the erasures and discrepancies and asked for suspension of canvass for him tohave recourse to judicial remedy. Denying said request, the board of canvassers finished the canvass andproclaimed Cordero the winner, on November 28.On November 29, Purisima filed a petition in the Commission on Elections to annul the canvass and proclamationabove-mentioned. The Commission on Elections issued a resolution on November 30, annulling the canvass andproclamation, as regards Cordero and Purisima.Purisima, on December 10, filed in the Court of First Instance a petition for recount under Section 163 of the RevisedElection Code. Subsequently, motions to dismiss the same were filed by the board of canvassers and by Cordero. Inhis motion to dismiss, Cordero admitted the erasures and discrepancies on the face of the returns from 41 precincts,but denied that said erasures were due to tampering or falsification.

After a preliminary hearing on the motions to dismiss, the Court of First Instance, on December 27, dismissed thepetition for recount. And on December 28, Cordero filed in the Commission on Elections a motion for resumption ofthe canvass.Purisima, on January 2, 1964, moved for reconsideration of the Court of First Instances order of dismissal. In thesame case, he also filed, on January 8, a petition for preliminary injunction to restrain the holding of another canvass.

Annexed to said petition were certified photostatic copies of the Comelecs copies of the returns from the 41 precinctsin question. Furthermore, Purisima filed with the Commission on Elections, on January 11, an opposition to theresumption of the canvass.

Alleging that the Commission on Elections was about to order the canvass resumed, Purisima came to this Court, onJanuary 17, 1964, by petition forcertiorariwith preliminary injunction. Petitioner asked that the lower courts order

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dismissing his petition for recount be set aside and that the Commission on Elections be enjoined from orderingresumption of the canvass until after the judicial recount.On January 22, 1964 we ordered respondents to answer, and allowed preliminary injunction to be issued as prayedfor upon the posting of a bond of P500.00. After respondents filed their answer the case was heard and submitted fordecision.The requisites for judicial recount are set forth in Section 163 of the Revised Election Code:When statements of precinct are contradictory. In case it appears to the provincial board of canvassers that another

copy or other authentic copies of the statement from an election precinct submitted to the board give to a candidate adifferent number of votes and the difference affects the result of the election, the Court of First Instance of theprovince, upon motion of the board or of any candidate affected, may proceed to recount the votes cast in theprecinct for the sole purpose of determining which is the true statement or which is the true result of the count of thevotes cast in said precinct for the office in question. Notice of such proceeding shall be given to all candidatesaffected.In dismissing the petition for recount, respondent Judge stated that some of the requisites were not present, namely:first, that it appears to the provincial board of canvassers that a discrepancy exists; second, that said discrepancy isbetween the copy submitted to the board and another authentic copy thereof; third, that said authentic copy must alsobe submitted to the board.First of all, it is not disputed that a candidate affected can file the petition for recount, even if he does so alone,without the concurrence of the provincial board of canvassers (Cawa v. Del Rosario, L-16837-40, May 30,1960).From the fact, therefore, that the provincial board of canvassers has not petitioned for a recount it cannot be inferredthat they were not convinced a discrepancy existed.In fact, when Purisima first called attention to the discrepancy between the Nacionalista Party copies and the

Provincial Treasurers copies, the board of canvassers admitted the discrepancy but stated that it was not yetascertainable whether the discrepancy would amount to enough votes as to affect the result. There is no morequestion now that the number of votes involved in said discrepancy is more than enough to alter the result.Finally, in the motion to dismiss filed by the board of canvassers, the existence of the discrepancy is not disputed,and the board merely raises the defense that the recount is up to the court and not to said board (Annex D, Petition).Passing on to the next point, the basis of the petition for recount was not merely a discrepancy between theNacionalista Party copies and the Provincial Treasurers copies of the returns. Paragraph 8 of said petition showsthat, in addition, the Commission on Elections copies were relied upon:That as a result of the aforesaid erasures, tampering and apparent falsifications, there exist discrepancies betweenthe Provincial Treasurers copies (the basis of the canvass) of the election returns in the precincts in question, on onehand, and the copies pertaining to the Nacionalista Party and those pertaining to the Commission on Elections, onthe other, and that said discrepancies materially affect the result of the election as between herein petitioner andrespondent Gregorio Cordero;

Accordingly, even assuming for the nonce a point we do not here decide that the Nacionalista Party copies arenot copies that may be the basis of a petition for recount, the fact remains that the Commission on Elections copies

were said to reflect the same discrepancy with the Provincial Treasurers copies. It is settled that the Commission onElections copies are authentic copies within the meaning of Section 163 of the Revised Election Code (Laws in v.Escalona, L-22540, July 31, 1964; Matanog v. Alejandro, L-22502-08, June 30, 1964.)The trial court. however, ruled that the Commission on Elections copies had no application to the petition for recountbecause they were not submitted to the board of canvassers. The record definitely shows that the reason whyPurisima was not able to submit to the board said Commission on Elections copies was because the board declinedto suspend the canvass and proclamation.It is the duty of the board of canvassers to suspend the canvass in case of patent irregularity in the election returns.In the present case, there were patent erasures and superimpositions, in words and figures on the face of the electionreturns submitted to the board of canvassers. It was therefore imperative for the board to stop the canvass so as toallow time for verification of authentic copies and recourse to the courts (Javier v. Commission on Elections, L-22248,January 30, 1965). A canvass or proclamation made notwithstanding such patent defects, without awaiting properremedies, is null and void (Ibid.). In fact, as stated, the Commission on Elections declared the canvass andproclamation, made by respondent provincial board of canvassers, null and void.Since the board of canvassers prevented Purisima from securing the Commission on Elections copies of the returnsto establish a discrepancy between them and the Provincial Treasurers copies, the failure to submit the Commissionon Elections copies to said board should not prejudice Purisimas right to petition for recount before the court. It wastherefore grave abuse of discretion for respondent court to refuse to consider the Commission on Elections copies,regardless of the patent and admitted irregularities on the face of the Provincial Treasurers copies and the allegeddiscrepancy amounting to thousands of votes sufficient to affect the results.Interpretation of election laws should give effect to the expressed will of the electorate. Patent erasures andsuperimpositions in words and figures of the votes stated in the election returns strike at the reliability of said returnsas basis for canvass and proclamation. A comparison with the other copies, and, in case of discrepancy, a recount, isthe only way to remove grave doubts as to the correctness of said returns as well as of ascertaining that they reflectthe will of the people.

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WHEREFORE, the dismissal of the petition for recount is set aside, respondent Judge is ordered to proceed with thepetition for recount, and respondents Commission on Elections and Provincial Board of Canvassers are enjoined,until after the termination of proceedings in the petition for recount, from ordering or holding another canvass andproclamation as between petitioner Purisima and respondent Cordero.Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal and Zaldivar, JJ.,concur.

2. CAUTON V. COMELEC Republic of the PhilippinesSUPREME COURT

ManilaEN BANC

G.R. No. L-25467 April 27, 1967LUCAS V. CAUTON, petitioner,vs.COMMISSION ON ELECTIONS and PABLO SANIDAD, respondents.

Antonio Barredo for petitioner.Ramon Barrios for respondent Commission on Elections.Pablo C. Sanidad and F. D. Villanueva and Associates for respondent Sanidad.ZALDIVAR, J .:In the national elections held on November 9, 1965, petitioner Lucas V. Cauton and respondent Pablo Sanidad, alongwith Godofredo S. Reyes, were candidates for the office of Representative in the second congressional district of

Ilocos Sur.During the canvass by the Provincial Board of Canvassers of Ilocos Sur of the votes cast for the candidates forRepresentative in the second congressional district of Ilocos Sur, and particularly after the Board had opened theenvelopes containing the copies of the election returns from each of the election precincts in the municipalities ofCandon, Santiago and Sta. Cruz that were presented by the Provincial Treasurer of Ilocos Sur to the Board,respondent Sanidad brought to the attention of the Board the fact that the entries of votes for the candidates forRepresentative in those copies of the election returns that came from the envelopes presented by the provincialtreasurer differed from the entries appearing in the copies of the returns from the same election precincts that were inthe possession of the Liberal Party.1wph1.tRespondent Sanidad filed a petition with the Commission on Elections praying for the opening of the ballot boxes inall the precincts of Candon, Santiago and Sta. Cruz, in order to retrieve the election returns deposited therein so thatthose election returns might be used in the canvass of the votes for the candidates for Representative in the seconddistrict of Ilocos Sur, and that in the meantime the Provincial Board of Canvassers of Ilocos Sur be ordered to refrainfrom proclaiming the winning candidate for the office of Representative in said district. The Commission on Electionsissued the restraining order prayed for by respondent Sanidad and set his petition for hearing.

After hearing, the Commission on Elections found "that it had been clearly established that the copies of the electionreturns for the Municipal Treasurer, for the Commission on Elections and for the Provincial Treasurer for themunicipality of Santa Cruz have uniform alterations in the entries of the votes cast for representative showingdifferent number of votes compared with the Liberal Party copies, while the copies of the election returns for theCommission on Elections and the Provincial Treasurer for the municipalities of Candon and Santiago have likewiseuniform alterations and showing different numbers compared with the Liberal Party copies ...."

1The copies of the

election returns that were furnished the municipal treasurers of Candon and Santiago were never verified becausethe municipal treasurers of those two municipalities did not comply with the subpoena duces tecum issued by theCommission on Elections directing them to bring to the Commission the copies of the election returns of the precinctsin their respective municipalities that were in their possession.On December 22, 1965, respondent Commission on Elections issued an order providing, among others, that... to enable the aggrieved party to establish discrepancy between copies of the election returns provided by law inthe aforementioned precincts for the purpose of obtaining judicial remedy under the provisions of Section 163 of theRevised Election Code, the Commission Resolved... to direct immediately the opening of the ballot boxes of themunicipalities of Candon, Sta. Cruz and Santiago which are now impounded and under the custody of the ZoneCommander of the 1st PC Zone in Camp Olivas, San Fernando, Pampanga solely for the purpose of retrievingtherefrom the corresponding election returns, copies for the ballot box, in all the precincts of said municipalities.Pursuant to the instructions of respondent Commission, contained in the resolution of December 22, 1965, the ballotboxes from all the precincts in the municipalities of Candon, Sta. Cruz and Santiago were opened by the Chief of theLaw Enforcement Division of the Commission, Atty. Fernando Gorospe, Jr., in the presence of witnesses, and theenvelopes containing the election returns found inside the ballot boxes were taken and brought to Manila onDecember 23, 1965.On the same date, December 23, 1965, herein petitioner, Lucas V. Cauton, filed before this Court a petition forcertiorari and prohibition with preliminary injunction, praying that the resolution of the respondent Commission onElections dated December 22, 1965 ordering the opening of the ballot boxes used in all the precincts of Candon, Sta.

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Cruz and Santiago in the elections of November 9, 1965 be annulled and set aside. The petition further prays that theCommission on Elections be restrained from opening, the envelopes containing the election returns found in theafore-mentioned ballot boxes and be ordered to return the said envelopes to the corresponding ballot boxes. In hispetition, petitioner alleges that the respondent Commission on Elections acted without or in excess of its jurisdiction inissuing the resolution of December 22, 1965. This Court gave due course to the petition, but did not issue the writ ofpreliminary injunction prayed for. This petition is now the case before Us.Upon instructions by respondent Commission on Elections, on December 28, 1966, the envelopes that were taken

from the ballot boxes were opened and the election returns were taken out and their contents examined and recordedby a committee appointed by the Commission. This was done in a formal hearing with notice to the partiesconcerned.Respondent Pablo C. Sanidad filed his answer to instant petition on January 5, 1966, admitting some of theallegations and denying others, and maintaining that the Commission on Elections had acted well within the boundsof its authority in issuing the order of December 22, 1965. Respondent Commission on Elections also filed its answeron January 5, 1966, maintaining that it has authority under the law to order the opening of the ballot boxes as statedin its resolution of December 22, 1965.In the meantime, on the basis of the discrepancies in the entries of the votes for the candidates for Representative,between the election returns taken out of the ballot boxes that were opened by order of the Commission of Electionsand the election returns submitted by the Provincial Treasurer of Ilocos Sur to the Provincial Board of Canvassers ofIlocos Sur, respondent Pablo C. Sanidad filed a petition with the Court of First Instance of Ilocos Sur, docketed asElection Case No. 16-N, for a recount of the votes in all the precincts of Candon, Sta. Cruz and Santiago, pursuant tothe provisions of Section 163 of the Revised Election Code.On February 14, 1966, petitioner filed before this Court in urgent motion, in this case, praying for the issuance of an

order enjoining the Court of First Instance of Ilocos Sur (Branch II-Narvacan) from further proceeding with ElectionCase No. 16-N, abovementioned, pending final decision of the instance case, upon the ground that the recount of theballots in that case in the court below would render the instant case moot and academic. This motion was denied bythis Court in a resolution dated February 17, 1966.The principal issue in the present case revolves on the of the resolution of the respondent Commission of Elections,dated December 22, 1965, which orders the opening of the ballot boxes used in all the precincts in the municipalitiesof Candon, Sta. Cruz and Santiago, Ilocos Sur, during the elections of November 9, 1965 for the purpose of retrievingtherefrom the corresponding election returns, copies for the ballot box, "to enable the aggrieved party to establishdiscrepancy between copies of the election returns provided by law in the aforementioned precincts for the purposeof obtaining judicial remedy under the provisions of Section 163 of the Revised Election Code."It is the stand of the petitioner that respondent Commission on Elections is without jurisdiction to issue, or has actedin excess of jurisdiction in issuing, the resolution in question, so that said resolution is null and void and should not begiven legal force and effect. The petitioner contends that under Section 157 of the Revised Election Code theCommission on Elections has authority to order the opening of the ballot boxes "only in connection with aninvestigation conducted for the purpose of helping the prosecution of any violation of the election laws or for the

purely administrative purpose but not when the sole purpose is, as in this case, to assist a party in trying to win theelection ...." The petitioner further, contends that "the mere fact that the copies of the returns in the precincts inquestion in the possession of the Liberal Party do not tally with the returns involving the same precincts in thepossession of the Provincial Treasurer, the Commission of Elections and the Nacionalista Party as well does notlegally support the validity of the resolution of the respondent Commission in question ...."

2

We cannot sustain the stand of the petitioner. We believe that in issuing the resolution in question the Commission onElections simply performed a function as authorized by the Constitution, that is, to "have exclusive charge of theenforcement and administration of all laws relative to the conduct of elections and ... exercise all other functionswhich may be conferred upon it by law." The Commission has the power to decide all administrative questionsaffecting elections, except the question involving the right to vote.

3

This Court in a line of decisions has ruled that the Commission on Election has the power to investigate and act onthe propriety or legality of the canvass of election returns made by the board of canvassers. In the case ofAlbano vs.

Arranz, L-19260, January 31, 1962, this Court, through Mr. Justice J.B.L. Reyes, held as follows:The suspension of the proclamation of the winning candidate pending an inquiry into irregularities brought to theattention of the Commission on Elections was well within its administrative jurisdiction, in view of the exclusiveauthority conferred upon it by the Constitution (Art. X ) for the administration and enforcement of all laws relative toelections. The Commission certainly had the right to inquire whether or not discrepancies existed between the variouscopies of election returns for the precincts in question, and suspend the canvass all the meantime so the partiescould ask for a recount in case of variance ....'What the respondent Commission on Elections did in the case now before Us is just what is contemplated in theabovequoted ruling of this Court. The power of the Commission on Elections in this respect is simply administrativeand supervisory intended to secure the proclamation of the winning candidate based on the true count of the votescast. When the Commission on Elections exercises this power the purpose is not for the Commission to help acandidate win the election but to bring about the canvass of the true results of the elections as certified by the boardsof election inspectors in every precinct. The object of the canvass is to determine the result of the elections based on

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the official election returns. In order that the result of the canvass would reflect the true expression of the people's willin the choice of their elective officials, the canvass must be based on true, genuine, correct, nay untampered, electionreturns. It is in this proceedings that the Commission on Elections exercises its supervisory and administrative powerin the enforcement of laws relative to the conduct of elections, by seeing to it that the canvass is based on theelection returns as actually certified by the members of the board of inspectors. Once the Commission on Elections isconvinced that the elections returns in the hands of the board of canvassers do not constitute the proper basis inascertaining the true result of the elections, it should be its concern, nay its duty, to order the taking of such steps as

may be necessary in order that the proper basis for the canvass is obtained or made available.The election law requires the board of inspectors to prepare four copies of the election return in each precinct oneto be deposited in the ballot box, one to be delivered to the municipal treasurer, one to be sent to the provincialtreasurer, and one to be sent to the Commission on Elections. In the case of the canvass of the election returns forcandidates for provincial or national offices, the election returns received by the provincial treasurer from the boardsof inspectors are used. It is the duty of the provincial treasurer to turn over to the provincial board of canvassers theelection returns received by him from the boards of inspectors. If the Commission on Elections is duly informed and itso finds, in appropriate proceedings, that the election returns in the hands of the provincial treasurer are tampered,then the Commission should afford the candidate adversely affected by the tampering an opportunity to show thatthere exist authentic copies of the same election returns which are not tampered. A recourse may be had to thecopies received by the Commission on Elections and to the copies received by the municipal treasurer. If it is shown,that the copies in the hands of the Commission on Elections and of the municipal treasurer are similarly tampered asthe copies in the hands of the provincial treasurer, then it becomes evident that all the three copies of the electionreturns outside the ballot box do not constitute a reliable basis for a canvass. The only copies left to be checked,whether they are also tampered or not, are the ones inside the ballot boxes. Certainly, the Commission on Elections,

in the exercise of its power to administer and enforce the laws relative to the conduct of elections, may order theopening of the ballot boxes to ascertain whether the copy inside each ballot box is also tampered like the three copiesoutside the ballot box, corresponding to each precinct. The Commission on Elections may do this on its own initiative,or upon petition by the proper party. Once it is found that the copy of the election return inside the ballot box isuntampered, the Commission on Elections would then have accomplished two things, namely: (1) secured a basis forthe prosecution for the violation of the laws relative to elections, and (2) afforded the party aggrieved by the alterationof the election returns outside the ballot box a basis for a judicial recount of the votes as provided for in Section 163of the Revised Election Code. Thus, the Commission on Elections has thereby made available the proper and reliablebasis for the canvass of the votes that will lead to the proclamation by the board of canvassers of the true winner inthe elections. In so doing the Commission on Elections, as we have said, had performed its constitutional duty ofadministering and enforcing the laws relative to the conduct of elections with a view to promoting clean and honestelections the very purpose for which the Commission on Elections was created by constitutional mandate.In the case now before Us, the Commission on Elections issued the questioned resolution "after hearing thearguments of the petitioner and the opposition thereto and considering that it has been clearly establishedthat thecopies of the election returns for the Municipal Treasurer, for the Commission on Elections and for the Provincial

Treasurer for the municipality of Sta. Cruz have uniform alteration in the entries of the votes cast for representativeshowing different number of votes compared with the Liberal Party copies, while the copies of the election returns forthe Commission of Elections and the Provincial Treasurer for the municipalities of Candon and Santiago havelikewise uniform alterations and showing different numbers compared with the Liberal Party copies ..."

5Indeed, in the

face of this finding by the Commission on Elections, which indicates a clear violation of the election law, and whichindicates an attempt to procure the proclamation of the winner in the elections for Representative in the secondcongressional district of Ilocos Sur by the use of tampered election returns, can the Commission on Elections beremiss in the performance of its duties as a constitutional body committed with the exclusive charge of theenforcement and administration of all laws relative to the conduct of elections? The Revised Election Code gives tothe Commission on Elections the direct and immediate supervision over provincial, municipal and city officialsdesignated by law to perform duties relative to the conduct of elections and included among these officials aremembers of the provincial board of canvassers.

6The provincial board of canvassers is enjoined by law to canvass all

the votes cast for Representatives on the basis of the election returns produced by the provincial treasurer.7The

Commission on Elections has a duty to enforce this law and it has the duty to see to it that the election returns to beused for canvassing must be genuine and authentic, not falsified or tampered with. Where the election returnsproduced by the provincial treasurer have been shown to have been tampered, and all the other copies outside theballot boxes have also been shown to have been tampered or falsified, it is certainly within the power of theCommission on Elections to issue such order as would ascertain the existence of the genuine, authentic anduntampered election returns, and thus open the way for the summary recount of the votes, in accordance with law, forthe purposes only of the canvass of the votes and the proclamation of the candidate found to have obtained thehighest number of votes. In the case now before Us, it is found by the Commission on Elections that no other copiescan be had except those deposited in the ballot boxes. Hence, the necessity for the Commission to order theretrieving of the copies of the election returns from the ballot boxes. An order to this effect does not affect the right tovote or the validity of any vote cast, so that it is perfectly within the power of the Commission on Elections to issuesuch an order in the exercise of its exclusive power to administer and enforce the laws relative to the conduct of

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elections. It would indeed be absurd to say that the Commission on Elections has a legal duty to perform and at thesame time it is denied the necessary means to perform said duty.The purpose of the Revised Election Code is to protect the integrity of elections and to suppress all evils that mayviolate its purity and defeat the will of the voters.

8The purity of the elections is one of the most fundamental requisites

of popular government.9The Commission on Elections, by constitutional mandate, must do everything in its power to

secure a fair and honest canvass of the votes cast in the elections. In the performance of its duties, the Commissionmust be given a considerable latitude in adopting means and methods that will insure the accomplishment of the

great objective for which it was created to promote free, orderly, and honest elections. The choice of means takenby the Commission on Elections, unless they are clearly illegal or constitute grave abuse of discretion, should not beinterfered with.

10Technicalities, which are not conducive to free, orderly and honest elections, but on the contrary may

defeat the will of the sovereign people as expressed in their votes, should not be allowed to hamper the Commissionon Elections in the performance of its duties. To sustain the petitioner in the present case is to deny the Commissionon Elections the power to retrieve the copies of the election returns from the ballot boxes in order that the truenumber of votes cast for a candidate may be known and thus permit a canvass on the basis of election returns thatare patently falsified. We cannot, and We must not, sanction the stand of petitioner.

As We have adverted to, the Commission on Elections has the power to inquire whether there exist discrepanciesamong the various copies of the election returns.

11Of all the copies prepared by the board of inspectors the copy least

susceptible to being tampered with is the one deposited in the ballot box. Where the three copies outside the ballotboxes appear to have been uniformly altered, there is no plausible reason why the copy deposited in the ballot boxmay not be used to determine whether discrepancies exist in the various copies. Inasmuch as the Commission onElections has the right to determine whether said discrepancies exist, it must also have the right to consult saidreturns, which cannot be done unless the ballot boxes are opened. It is noteworthy that the Revised Election Code

does not provide that it is the courts that have the power to order the opening of the ballot box in a situation like this.Section 157 of the Revised Election Code, on which petitioner herein relies in support of his stand in the presentcase, authorizes the opening of the ballot box whenever it is the subject of an official investigation. It provides:The municipal treasurer shall keep the boxes unopened in his possession in a secure place and under hisresponsibility for three months, unless they are the subject of an official investigation, or a component court or tribunalshall demand them sooner, or the competent authority shall order their preservation for a longer time in connectionwith any pending contest or investigation.Under this section the ballot boxes may be opened in case there is an election contest. They may also be openedeven if there is no election contest when their contents have to be used as evidence in the prosecution of electionfrauds.

12Moreover, they may be opened when they are the subject of any official investigation which may be ordered

by a competent court or other competent authority.13

The "competent authority" must include the Commission onElections which is charged with the administration and enforcement of the laws relative to the conduct of elections. Inthe instant case the Commission on Elections found that it has been clearly established that the election returnsoutside the ballot boxes, in all the precincts in the municipalities of Candon, Santiago and Sta. Cruz, have beentampered with. It is within the power of the Commission to order the investigation of that apparent anomaly that has

connection with the conduct of elections. The investigation may be in connection with the prosecution for theviolations of the election laws and at the same time to ascertain the condition of the election returns inside the ballotboxes as compared with the election returns outside the ballot boxes, for the same precincts. The opening of theballot boxes may, therefore, be prayed for by a candidate who is prejudiced by the apparent falsification of theelection returns outside the ballot boxes, and in ordering the opening of the ballot boxes the purpose of theCommission is not to help a particular candidate win an election but to properly administer and enforce the lawsrelative to the conduct of elections.From what has been said We hold that the order of December 22, 1965, being questioned by the petitioner in thepresent case, was perfectly within the power of the Commission on Elections to issue.Wherefore, the petition for certiorari and prohibition in the present case is dismissed, with costs against the petitioner.It is so ordered.Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Sanchez and Castro, JJ., concur.

3. ROQUE V. COMELEC (see separate concurring opinion of CJ Puno)Republic of the Philippines

SUPREME COURTManila

EN BANC

H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN,ROMEL R. BAGARES, ALLAN JONES F.LARDIZABAL, GILBERT T. ANDRES,IMMACULADA D. GARCIA, ERLINDA T.MERCADO, FRANCISCO A. ALCUAZ, MA.

G.R. No. 188456

Present:

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AZUCENA P. MACEDA, and ALVIN A. PETERS,Petitioners,versus -

COMMISSION ON ELECTIONS,Represented by HON. CHAIRMAN JOSE MELO,COMELEC SPECIAL BIDS and AWARDS

COMMITTEE, represented by its CHAIRMAN HON.FERDINAND RAFANAN, DEPARTMENT OFBUDGET and MANAGEMENT, represented byHON. ROLANDO ANDAYA, TOTAL INFORMATIONMANAGEMENT CORPORATION andSMARTMATIC INTERNATIONAL CORPORATION,Respondents.

PETE QUIRINO-QUADRA,Petitioner-in-Intervention.

SENATE OF THE PHILIPPINES, represented by itsPresident, JUAN PONCE ENRILE,Movant-Intervenor.

PUNO, C.J.,QUISUMBING,

*

YNARES-SANTIAGO,CARPIO,CORONA,CARPIO MORALES,CHICO-NAZARIO,

VELASCO, JR.,NACHURA,LEONARDO-DE CASTRO,BRION,PERALTA,BERSAMIN,DEL CASTILLO, and

ABAD, JJ.

Promulgated:

September 10, 2009x-----------------------------------------------------------------------------------------x

D E C I S I O N

VELASCO, JR., J.:

In a democratic system of government, the peoples voice is sovereign. Corollarily, choosing through the ballots themen and women who are to govern the country is perhaps the highest exercise of democracy. It is thus the interestof the state to insure honest, credible and peaceful elections, where the sanctity of the votes and the secrecy of theballots are safeguarded, where the will of the electorate is not frustrated or undermined. For when the popular willitself is subverted by election irregularities, then the insidious seeds of doubt are sown and the ideal of a peaceful andsmooth transition of power is placed in jeopardy. To automate, thus breaking away from a manual system of election,has been viewed as a significant step towards clean and credible elections, unfettered by the travails of the long waitand cheating that have marked many of our electoral exercises.

The Commission on Elections (Comelec), private respondents, the National Computer Center and other computerwizards are confident that nationwide automated elections can be successfully implemented. Petitioners and someskeptics in the information technology (IT) industry have, however, their reservations, which is quite understandable.To them, the automated election system and the untested technology Comelec has chosen and set in motion arepregnant with risks and could lead to a disastrous failure of elections. Comelec, they allege, would not be up to thechallenge. Cheating on a massive scale, but this time facilitated by a machine, is perceived to be a real possibility.

In this petition forcertiorari, prohibition and mandamus with prayer for a restraining order and/or preliminaryinjunction, petitioners H. Harry L. Roque, Jr., et al., suing as taxpayers and concerned citizens, seek to nullifyrespondent Comelecs award of the 2010 Elections Automation Project (automation project) to the joint venture ofTotal Information Management Corporation (TIM) and Smartmatic International Corporation (Smartmatic)

[1]and to

permanently prohibit the Comelec, TIM and Smartmatic from signing and/or implementing the correspondingcontract-award.

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By Resolution[2]

of July 14, 2009, the Court directed the respondents as well as the University of the Philippines (UP)Computer Center, National Computer Center (NCC) and Information Technology Foundation of the Philippines(Infotech, hereinafter) to submit their collective or separate comments to the petition on or before July 24,2009. Before any of the comments could actually be filed, Atty. Pete Quirino-Quadra sought leave to intervene. Inanother resolution, the Court allowed the intervention and admitted the corresponding petition-in-intervention.

[3]

On July 29, 2009, the Court heard the principal parties in oral arguments which was followed by the submission of

their and the resource persons instructive, albeit clashing, memoranda. The Senate, through the Senate President,would later join the fray viaa Motion for Leave to Intervene. In a Resolution of August 25, 2009, the Court admittedthe Senates comment-in-intervention.

From the petition, the separate comments thereon, with their respective annexes, and other pleadings, as well asfrom admissions during the oral arguments, the Court gathers the following facts:

On December 22, 1997, Congress enacted Republic Act No. (RA) 8436 authorizing the adoption of an automatedelection system (AES) in the May 11, 1998 national and local elections and onwards. The 1998, 2001, and 2004national and local polls, however, came and went but purely manual elections were still the order of the day. OnJanuary 23, 2007, the amendatory RA 9369

[4]was passed authorizing anew the Comelec to use an AES. Of

particular relevance are Sections 6 and 10 of RA 9369originally Secs. 5 and 8, respectively of RA 8436, asamendedeach defining Comelecs specific mandates insofar as automated elections are concerned. The AES wasnot utilized in the May 10, 2000 elections, as funds were not appropriated for that purpose by Congress and due totime constraints.

RA 9369 calls for the creation of the Comelec Advisory Council[5]

(CAC). CAC is to recommend, among otherfunctions, the most appropriate, applicable and cost-effective technology to be applied to the AES.

[6]To be created by

Comelec too is the Technical Evaluation Committee (TEC)[7]

which is tasked to certify, through an establishedinternational certification committee, not later than three months before the elections, by categorically stating that the

AES, inclusive of its hardware and software components, is operating properly and accurately based on defined anddocumented standards.

[8]

In August 2008, Comelec managed to automate the regional polls in the Autonomous Region of MuslimMindanao

[9](ARMM), using direct recording electronics (DRE) technology

[10]in the province of Maguindanao; and the

optical markreader/recording (OMR) system, particularly the Central Count Optical Scan (CCOS),[11]

in the rest ofARMM.

[12]What scores hailed as successful automated ARMM 2008 elections paved the way for Comelec, with

some prodding from senators,[13]

to prepare for a nationwide computerized run for the 2010 national/local polls, withthe many lessons learned from the ARMM experience influencing, according to the NCC, the technology selection forthe 2010 automated elections.

[14]

Accordingly, in early March 2009, the Comelec released the Request for Proposal(RFP), also known as Terms ofReference(TOR), for the nationwide automation of the voting, counting, transmission, consolidation and canvassingof votes for the May 10, 2010 Synchronized National and Local Elections. What is referred to also in the RFP andother contract documents as the 2010 Elections Automation Project (Automation Project) consists of three elaboratecomponents, as follows:

Component 1: Paper-Based AES.[15]

1-A. Election Management System (EMS); 1-B Precinct-Count OpticScan (PCOS)

[16]System and 1-C. Consolidation/Canvassing System (CCS);

Component 2: Provision for Electronic Transmission of Election Results using Public TelecommunicationsNetwork; and

Component 3: Overall Project Management

And obviously to address the possibility of systems failure, the RFP required interested bidders to submit, amongother things: a continuity plan

[17]and a back-up plan.

[18]

Under the two-envelope system designed under the RFP,[19]

each participating bidder shall submit, as part of its bid,anEligibility Envelope

[20]that should inter aliaestablish the bidders eligibility to bid. On the other hand, the second

envelope, or theBid Envelope itself, shall contain two envelopes that, in turn, shall contain the technical proposal andthe financial proposal, respectively.

[21]

Subsequently, the Comelec Special Bids and Awards Committee (SBAC), earlier constituted purposely for theaforesaid project, caused the publication in different newspapers of the Invitation to Apply for Eligibility and to

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Bid[22]

for the procurement of goods and services to be used in the automation project .[23]

Meanwhile, Congressenacted RA 9525 appropriating some PhP 11.3 billion as supplemental budget for the May 10, 2010 automatednational and local elections.

Of the ten (10) invitation-responding consortia which obtained the bid documents, only seven (7) submitted sealedapplications for eligibility and bids

[24]which, per Bid Bulletin No. 24, were to be opened on a pre-set date, following

the convening of the pre-bid conference. Under the RFP, among those eligible to participate in the bidding are

manufacturers, suppliers and/or distributors forming themselves into a joint venture.

Ajoint venture is defined as agroup of two or more manufacturers, suppliers and/or distributors that intend to be jointly and severally responsible orliable for a particular contract.

[25]

Among the submitted bids was that of the joint venture (JV) of TIM and Smartmatic, the former incorporated underthe Corporation Code of the Philippines. Smartmatic, on the other hand, was organized under the lawsof Barbados.

[26]For a stated amount, said JV proposed to undertake the whole automation project, inclusive of the

delivery of 82,200 PCOS machines. After the conclusion of the eligibility evaluation process, only threeconsortia

[27]were found and thus declared as eligible. Further on, following the opening of the passing bidders Bid

Envelope and evaluating the technical and financial proposals therein contained, the SBAC, per its Res. No. 09-001,s.-2009, declared the above-stated bid of the JV of TIM-Smartmatic as the single complying calculated bid.

[28]As

required by the RFP, the bid envelope contained an outline of the joint ventures back-up and continuity orcontingency plans,

[29]in case of a systems breakdown or any such eventuality which shall result in the delay,

obstruction or nonperformance of the electoral process.

After declaring TIM-Smartmatic as the best complying bidder, the SBAC then directed the joint venture to undertakepost-qualification screening, and its PCOS prototype machinesthe Smarmatic Auditable Electronic System (SAES)1800to undergo end-to-end

[30]testing to determine compliance with the pre-set criteria.

In its Memorandum of June 01, 2009, on the Subject: Systems Evaluation Consolidated Report and Status Report onthe Post-Qualification Evaluation Procedures,the SBAC Technical Working Group (TWG) stated that it wasundertaking a 4-day (May 27 to May 30, 2009) test evaluation of TIM and Smartmatics proposed PCOS projectmachines. Its conclusion: The demo systems presentedPASSED all tests as required in the 26-item criteriaspecified in the [RFP] with 100% accuracy rating.

[31]The TWG also validated the eligibility, and technical and

financial qualifications of the TIM-Smartmatic joint venture.

On June 9, 2009, Comelec, upon the recommendation of its SBAC, the CAC and other stakeholders, issuedResolution No. (Res.) 8608

[32]authorizing the SBAC to issue, subject to well-defined conditions, the notice of award

and notice to proceed in favor of the winning joint venture.

Soon after, TIM wrote Comelec expressing its desire to quit the JV partnership. In time, however, the parties wereable to patch up what TIM earlier described as irreconcilable differences between partners.

What followed was that TIM and Smartmatic, pursuant to the Joint Venture Agreement (JVA) ,[33]

caused theincorporation of a joint venture corporation (JVC) that would enter into a contract with the Comelec. On July 8, 2009,the Securities and Exchange Commission issued a certificate of incorporation in favor of Smartmatic TIMCorporation. Two days after, or on July 10, 2009, Comelec and Smartmatic TIM Corporation, as provider, executed acontract

[34]for the lease of goods and services under the contract for the contract amount of PhP 7,191,484,739.48,

payable as the Goods and Services are delivered and/or progress is made in accordance [with pre -set] Schedule ofPayments.

[35] On the same date, a Notice to Proceed

[36]was sent to, and received by, Smartmatic TIM Corporation.

Meanwhile, or on July 9, 2009, petitioners interposed the instant recourse which, for all intents and purposes,impugns the validity and seeks to nullify the July 10, 2009 Comelec-Smartmatic-TIM Corporation automation contractadverted to. Among others, petitioners pray that respondents be permanently enjoined from implementing theautomation project on the submission that:

PUBLIC RESPONDENTS COMELEC AND COMELEC-SBAC COMMITTED GRAVE ABUSE OFDISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AWARDING THE 2010ELECTIONS AUTOMATION PROJECT TO PRIVATE RESPONDENTS TIM AND SMARTMATIC FOR THEFOLLOWING REASONS:

x x x COMELEC DID NOT CONDUCT ANY PILOT TESTING OF THE x x x PCOS MACHINESOFFERED BY PRIVATE RESPONDENTS SMARTMATIC AND TIM, IN VIOLATION OF [RA] 8436 (AS

AMENDED BY [RA] 9369)

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THE [PCOS] MACHINES [THUS] OFFERED BY PRIVATE RESPONDENTS x x x DO NOT SATISFYTHE MINIMUM SYSTEM CAPABILITIES SET BY [RA] NO. 8436 (AS AMENDED BY [RA] 9369).

PRIVATE RESPONDENTS x x x DID NOT SUBMIT THE REQUIRED DOCUMENTS DURING THEBIDDING PROCESS THAT SHOULD ESTABLISH THE DUE EXISTENCE, COMPOSITION, ANDSCOPE OF THEIR JOINT VENTURE, IN VIOLATION OF THE SUPREME COURTS HOLDINGIN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, vs. COMELEC (G.R. No.

159139, Jan. 13, 2004).

THERE WAS NO VALID JOINT VENTURE AGREEMENT [JVA] BETWEEN PRIVATERESPONDENTS SMARTMATIC AND TIM DURING THE BIDDING, IN VIOLATION OF THESUPREME COURTS HOLDING ININFORMATION TECHNOLOGY FOUNDATION OF THEPHILIPPINES vs. COMELECx x x WHICH REQUIRES A JOINT VENTURE TO INCLUDE A COPY OFITS [JVA] DURING THE BIDDING.

THE ALLEGED JOINT VENTURE COMPOSED OF PRIVATE RESPONDENTS SMARTMATIC ANDTIM, DOES NOT SATISFY THE SUPREME COURTS DEFINITION OF A JOINT VENTUREIN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES vs. COMELECx x x WHICHREQUIRES A COMMUNITY OF INTEREST IN THE PERFORMANCE OF THE SUBJECT MATTER.

Filed as it was before contract signing, the petition understandably did not implead Smartmatic TIM Corporation,doubtless an indispensable party to these proceedings, an incident that did not escape Comelecs notice.

[37]

As a preliminary counterpoint, either or both public and private respondents question the legal standing orlocusstandiof petitioners, noting in this regard that the petition did not even raise an issue of transcendental importance,let alone a constitutional question.

As an additional point, respondents also urge the dismissal of the petition on the ground of prematurity, petitionershaving failed to avail themselves of the otherwise mandatory built-in grievance mechanism under Sec. 55 in relationto Sec. 58 of RA 9184, also known as the Government Procurement Reform Act, as shall be discussed shortly.

PROCEDURAL GROUNDS

The Court is not disposed to dismiss the petition on procedural grounds advanced by respondents.

Locus Standiand Prematurity

It is true, as postulated, that to have standing, one must, as a rule, establish having suffered some actual orthreatened injury as a result of the alleged illegal government conduct; that the injury is fairly traceable to thechallenged action; and that the injury is likely to be redressed by a favorable action.

[38] The prescription on standing,

however, is a matter of procedure. Hence, it may be relaxed, as the Court has often relaxed the rule for non-traditional plaintiffs, like ordinary citizens and taxpayers, when the public interest so requires, such as when thematter is of transcendental importance, of overarching significance to society, or of paramount public interest.

[39]As

we wrote in Chavez v. PCGG,[40]

where issues of public importance are presented, there is no necessity to show thatthe suitor has experienced or is in actual danger of suffering direct and personal injury as the requisite injury isassumed.

Petitioners counsel, when queried, hedged on what specific constitutional proscriptions or concepts had beeninfringed by the award of the subject automation project to Smartmatic TIM Corporation, although he was heard tosay that our objection to the system is anchored on the Constitution itself a violation [sic] of secrecy of voting and thesanctity of the ballot.[41] Petitioners also depicted the covering automation contract as constituting an abdication bythe Comelec of its election-related mandate under the Constitution, which is to enforce and administer all lawsrelative to the conduct of elections. Worse still, according to the petitioners, the abdication, with its anti-dummydimension, is in favor of a foreign corporation that will be providing the hardware and software requirements.

[42]And

when pressed further, petitioners came out with the observation that, owing in part to the sheer length of the ballot,the PCOS would not comply with Art. V, Sec. 2 of the Constitution

[43]prescribing secrecy of voting and sanctity of the

ballot.[44]

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There is no doubt in our mind, however, about the compelling significance and the transcending public importance ofthe one issue underpinning this petition: the successand the far-reaching grim implications of the failureof thenationwide automation project that will be implemented via the challenged automation contract.

The doctrinal formulation may vary, but the bottom line is that the Court may except a particular case from theoperations of its rules when the demands of justice so require.

[45]Put a bit differently, rules of procedure are merely

tools designed to facilitate the attainment of justice.[46]

Accordingly, technicalities and procedural barriers should not

be allowed to stand in the way, if the ends of justice would not be subserved by a rigid adherence to the rules ofprocedure.[47]

This postulate on procedural technicalities applies to matters oflocus standiand the presently invokedprinciple of hierarchy of courts, which discourages direct resort to the Court if the desired redress is within thecompetence of lower courts to grant. The policy on the hierarchy of courts, which petitioners indeed failed to observe,is not an iron-clad rule. For indeed the Court has full discretionary power to take cognizance and assume jurisdictionof special civil actions forcertiorariand mandamus filed directly with it for exceptionally compelling reasons

[48]or if

warranted by the nature of the issues clearly and specifically raised in the petition.[49]

The exceptions that justify a deviation from the policy on hierarchy appear to obtain under the premises. The Courtwill for the nonce thus turn a blind eye to the judicial structure intended, first and foremost, to provide an orderlydispensation of justice.

Hierarchy of Courts

At this stage, we shall dispose of another peripheral issue before plunging into the core substantive issues tenderedin this petition.

Respondents contend that petitioners should have availed themselves of the otherwise mandatory protestmechanism set forth in Sections 55 and 58 of the procurement law (RA 9184) and the counterpart provisions found inits Implementing Rules and Regulations (IRR)-A before seeking judicial remedy. Insofar as relevant, Sec. 55 of RA9184 provides that decisions of the bids and awards committee (BAC) in all stages of procurement may be protested,via a verified position paper, to the head of the procuring agency. On the other hand, the succeeding Sec. 58 statesthat court action may be resorted to only after the protest contemplated in Sec. 55 shall have been completed.Petitioners except. As argued, the requirement to comply with the protest mechanism, contrary to what may havebeen suggested in Infotech,is imposed on the bidders.

[50]

Petitioners position is correct. As a matter of common sense, only a bidder is entitled to receive a notice of theprotested BAC action. Only a losing bidder would be aggrieved by, and ergo would have the personality to challenge,such action. This conclusion finds adequate support from the ensuing provisions of the aforesaid IRR-A:

55.2. The verified position paper shall contain the following documents:a) The name of bidder;b) The office address of the bidder x x x.

SUBSTANTIVE ISSUES

We now turn to the central issues tendered in the petition which, in terms of subject matter, revolved around twoconcerns, viz: (1) the Joint Venture Agreement (JVA) of Smartmatic and TIM; and (2) the PCOS machines to beused. Petitioners veritably introduced another issue during the oral arguments, as amplified in their memorandum, i.e.the constitutionality and statutory flaw of the automation contract itself. The petition-in-intervention confined itself tocertain features of the PCOS machines.

The Joint Venture Agreement: Its Existence and Submission

The issue respecting the existence and submission of the TIM-Smartmatic JVA does not require an extendeddisquisition, as repairing to the records would readily provide a satisfactory answer. We note in fact that thepetitioners do not appear to be earnestly pressing the said issue anymore, as demonstrated by their counselspractically cavalier discussion thereof during the oral argument. When reminded, for instance, of private respondentsinsistence on having in fact submitted their JVA dated April 23, 2009, petitioners counsel responded as follows: Weknew your honor that there was, in fact, a joint venture agreement filed. However, because of the belated discoverythat [there] were irreconcilable differences, we then madea view that this joint venture agreement was a sham, atbest pro forma because it did not contain all the required stipulations in order to evidence unity of interestx x x.

[51]

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Indeed, the records belie petitioners initial posture that TIM and Smartmatic, as joint venture partners, did not includein their submitted eligibility envelope a copy of their JVA. The SBACsPost Qualification Evaluation Report(Eligibility) on TIM-Smartmatic, on page 10, shows the following entry: Valid Joint Venture Agreement, stating amongthings, that the members are jointly and severally liable for the whole obligation, in case of joint venture Documentsverified compliance.

[52]

Contrary to what the petitioners posit, the duly notarized JVA, as couched, explained the nature and the limitedpurpose[53]

of the joint venture and expressly defined, among other things, the composition, scope, and the 60-40capital structure of the aggroupment.

[54]The JVA also contains provisions on the management

[55]and division of

profits.[56]

Article 3[57]

of the JVA delineates the respective participations and responsibilities of the joint venturepartners in the automation project.

Given the foregoing perspective, the Court is at a loss to understand how petitioners can assert that the Smartmatic-TIM consortium has failed to prove its joint venture existence and/or to submit evidence as would enable the Comelecto know such items as who it is dealing with, which between the partners has control over the decision-makingprocess, the amount of investment to be contributed by each partner, the parties shares in the profits and like details.Had petitioners only bothered to undertake the usual due diligence that comes with good judgment and examined theeligibility envelope of the Smartmatic-TIM joint venture, they would have discovered that their challenge to andarguments against the joint venture and its JVA have really no factual basis.

It may be, as petitioners observed, that the TIM-Smartmatic joint venture remained an unincorporated aggroupment

during the bid-opening and evaluation stages. It ought to be stressed, however, that the fact of non-incorporation waswithout a vitiating effect on the validity of the tender offers. For the bidding ground rules, as spelled out primarily inthe RFP and the clarificatory bid bulletins, does not require, for bidding purposes, that there be an incorporation of thebidding joint ventures or consortiums. In fact, Bid Bulletin Nos. 19 and 20 recognize the existence and theacceptability of proposals of unincorporated joint ventures. In response to a poser, for example, regarding the 60%Filipino ownership requirement in a joint venture arrangement, the SBAC, in its Bid Bulletin No. 22, stated: Inan uninco rporated joint venture, determination of the required Filipino participation may be made by examining theterms and conditions of the [JVA] and other supporting financial documents submitted by the joint venture .(Emphasis ours.) Petitioners, to be sure, have not shown that incorporation is part of the pass/fail criteria used indetermining eligibility.

Petitioners have made much of the Courts ruling in Information Technology Foundation of the Philippines [Infotech]v. Comelec,

[58]arguing in relation thereto that the partnership of Smartmatic and TIM does not meet the Courts

definition of ajoint venturewhich requires community of interest in the performance of the subject matter.

Petitioners invocation ofInfotech is utterly misplaced. Albeit Infotech and this case are both about modernizingthe election process and bidding joint ventures, the relevant parallelism ends there. Cast as they are againstdissimilar factual milieu, one cannot plausibly set Infotech side with and contextually apply to thiscasethe ratio ofInfotech. Suffice it to delve on the most glaring of differences. In Infotech, the winning bid pertainedto the consortium of Mega Pacific, a purported joint venture. Extant records, however, do not show the formation ofsuch joint venture, let alone its composition. To borrow from theponencia of then Justice, later Chief Justice, ArtemioPanganiban, there is no sign whatsoever of any [JVA], consortium agreement [or] memorandum agreementx xx executed among the members of the purported consortium.

[59]There was in fine no evidence to show that the

alleged joint venture partners agreed to constitute themselves into a single entity solidarily responsible for the entiretyof the automation contract. Unlike the purported Mega Pacific consortium in Infotech, the existence in this case of thebidding joint venture of Smarmatic and TIM is properly documented and spread all over the bid documents. And tostress, TIM and Smartmatic, in their JVA, unequivocally agreed between themselves to perform their respectiveundertakings. And over and beyond their commitments to each other, they undertook to incorporate, if called for bythe bidding results, a JVC that shall be solidarily liable with them for any actionable breach of the automationcontract.

In Infotech, the Court chastised the Comelec for dealing with an entity, the full identity of which the poll bodyknew nothing about. Taking a cue from this holding, petitioners tag the TIM-Smartmatic JVA as flawed and as onethat would leave the Comelec hanging for the non -inclusion, as members of the joint venture, of three IT providers.The three referred to are Jarltech International, Inc. (Jarltech), a subsidiary of Smartmatic that manufactures theSmartmatic voting machines; Dominion Voting Systems (Domino), the inventor of said PCOS machines; and 2GOTransportation System Corporation (2GO), the subcontractor responsible for the distribution of the PCOS machinesthroughout the country.

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Petitioners beef against the TIM-Smartmatic JVA is untenable. First off, the Comelec knows the very entitieswhom they are dealing with, which it can hold solidary liable under the automation contract, should there be contractviolation. Secondly, there is no requirement under either RA 8436, as amended, or the RFP, that all the suppliers,manufacturers or distributors involved in the transaction should be part of the joint venture. On the contrary, theInstruction to Biddersas petitioners themselves admit

[60]allows the bidder to subcontract portions of the goods or

services under the automation project.[61]

To digress a bit, petitioners have insisted on the non-existence of a bona fide JVA between TIM andSmarmatic. Failing to gain traction for their indefensible posture, they would thrust on the Court the notion of aninvalid joint venture due to the non-inclusion of more companies in the existing TIM-Smartmatic joint venture. Theirony is not lost on the Court.

This brings us to the twin technical issues tendered herein bearing on the PCOS machines of Smartmatic.

At its most basic, the petition ascribes grave abuse of discretion to the Comelec for, among other things, awardingthe automation project in violation of RA 8436, as amended. Following their line, no pilot test of the PCOS technologySmartmatic-TIM offered has been undertaken; hence, the Comelec cannot conduct a nationwide automation of the2010 polls using the machines thus offered. Hence, the contract award to Smartmatic-TIM with their untested PCOSmachines violated RA 8436, as amended by RA 9369, which mandates that with respect to the May 2010 electionsand onwards, the system procured must have been piloted in at least 12 areas referred to in Sec. 6 of RA 8436, asamended. What is more, petitioners assert, private respondents PCOS machines do not satisfy the minimum systemcapabilities set by the same law envisaged to ensure transparent and credible voting, counting and canvassing of

votes. And as earlier narrated, petitioners would subsequently add the abdication angle in their bid to nullify theautomation contract.

Pilot Testing Not Necessary

Disagreeing, as to be expected, private respondents maintain that there is nothing in the applicable law requiring, asa pre-requisite for the 2010 election automation project award, that the prevailing bidders automation system, thePCOS in this case, be subjected to pilot testing. Comelec echoes its co-respondents stance on pilot testing, with theadded observation that nowhere in the statutory provision relied upon are the words pilot testing used .

[62]The

Senates position and its supporting arguments match those of private respondents.

The respondents thesis on pilot testing and the logic holding it together are well taken. There can be no argumentabout the phrase pilot test not being found in the law. But does it necessarily follow that a pilot test is absolutely notcontemplated in the law? We repair to the statutory provision petitioners cited as requiring a pilot run, referring to Sec.6 of RA 8436, as amended by RA 9369, reading as follows:

Sec. 5. Authority to use an Automated Election System.- To carry out the above stated-policy, the[Comelec], x x x is hereby authorized to use an automated election system or systems in the same electionin different provinces, whether paper-based or a direct recording electronic election system as it may deemappropriate and practical for the process of voting, counting of votes and canvassing/consolidation andtransmittal of results of electoral exercises: Provided, that for the regular national and local elections,which shall be held immediately after theeffectivity of this Act, the AES shall be used in at least twohighly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to be chosen bythe [Comelec]: Provided, further, That local government units whose officials have been the subject ofadministrative charges within sixteen (16) month prior to the May 14, 2007 elections shall not bechosen. Provided, finally, That no area shall be chosen without the consent of the Sanggunian of the localgovernment unit concerned. The term local government unit as used in this provision shall refer to a highlyurbanized city or province. In succeeding regular national or local elections, the AES shall be implemented.(Emphasis and underscoring added.)

RA 9369, which envisages an AES, be it paper-based or direct-recording electronic, took effect in the second weekof February 2007 or thereabout.

[63]The regular national and local electionsreferred to after the effectivity of this

Act can be no other than the May 2007 regular elections, during which time the AES shall, as the law is worded, beused in at least two highly urbanized cities and provinces in Luzon, Visayas and Mindanao. The Court takes judicialnotice that the May 2007 elections did not deploy AES, evidently due to the mix of time and funding constraints.To the petitioners, the underscored portion of the aforequoted Sec. 6 of RA 8436 is the pilot-testing provision thatComelec failed to observe.

We are not persuaded.

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From the practical viewpoint, the pilot testing of the technology in question in an actual, scheduled electoral exerciseunder harsh conditions would have been the ideal norm in computerized system implementation. The underscoredproviso of Sec. 6 of RA 8436 is not, however, an authority for the proposition that the pilot testing of the PCOS in the2007 national elections in the areas thus specified is an absolute must for the machines use in the 2010national/local elections. The Court can concede that said proviso, with respect to the May 2007 elections, commandsthe Comelec to automate in at least 12 defined areas of the country. But the bottom line is that the required 2007automation, be it viewed in the concept of a pilot test or not, is not a mandatory requirement for the choice of system

in, or a prerequisite for, the full automation of the May 2010 elections.

As may be noted, Sec. 6 of RA 8436 may be broken into three essential parts, the first partaking of the nature of ageneral policy declaration: that Comelec is authorized to automate the entire elections. The second part states thatfor the regular national and local elections that shall be held in May 2007, Comelec shall use the AES, with an option,however, to undertake automation, regardless of the technology to be selected, in a limited area or, to be moreprecise, in at least two highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to be chosenby the Comelec. On the other hand, the last part, phrased sansreference to the May 2007 elections, commandsthus: [I]n succeeding regular national or local elections, the [automated election sy