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INFORMATION TECHNOLOGY FOUNDATION OF THE

PHILIPPINES, ET AL. VS. COMMISSION ON


ELECTIONS
G.R. No. 159139
January 13, 2004

bidding by permitting the winning bidder to alter the


subject of the contract, in effect allowing a substantive
amendment without public bidding.

FACTS:
On June 7, 1995, Congress passed R.A. 8046 (An
act authorizing the COMELEC to conduct a nationwide
demonstration of a computerized election system and
pilot-test it in the March 1996 elections in the
Autonomous Region in Muslim Mindanao (ARMM) and for
other purposes). On December 22, 1997, Congress
enacted R.A. 8436 (An act authorizing the COMELEC to
use an automated election system in the May 11, 1998
national or local elections and in subsequent national and
local electoral exercises, providing funds therefore and for
other
purposes).
On October 29, 2002, COMELEC adopted its Resolution
02-0170 a modernization program for the 2004 elections.
It resolved to conduct biddings for the three phases of its
Automated Election System: namely, Phase I-Voter
Registration and Validation System; Phase II-Automated
Counting and Canvassing System; and Phase IIIElectronic
Transmissions.
President Gloria Macapagal-Arroyo issued EO No. 172,
which allocated the sum of P 2.5 billion to fund the AES
for May 10, 2004 elections. She authorized the release of
an additional P 500 million, upon the request of
COMELEC.
The COMELEC issued an Invitation to Apply for Eligibility
and to Bid. There are 57 bidders who participated
therein. The Bids and Awards Committee (BAC) found
MPC and the Total Information Management Corporation
(TIMC) eligible. Both were referred to Technical Working
Group (TWG) and the Department of Science and
Technology
(DOST).
However, the DOST said in its Report on the Evaluation of
Technical Proposals on Phase II that both MPC and TIMC
had obtained a number of failed marks in technical
evaluation. Notwithstanding these failures, the COMELEC
en banc issued Resolution No. 6074, awarding the project
to
MPC.
Wherefore, petitioners Information Technology Foundation
of the Philippines wrote a letter to the COMELEC chairman
Benjamin Abalos, Sr. They protested the award of the
contract to respondent MPC. However in a letter-reply,
the
COMELEC
rejected
the
protest.

ISSUE:
Whether or not the COMELEC committed grave
abuse of discretion in awarding the contract to MPC in
violation of law and in disregard of its own bidding rules
and
procedure.

HELD:
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. It is clear
that the Commission further desecrated the law on public
Page 1 of 8

EN BANC
INFORMATION TECHNOLOGY ' G.R. No. 159139
FOUNDATION OF THE PHILIPPINES,
MA. CORAZON M. AKOL, MIGUEL UY,Present:
EDUARDO H. LOPEZ, AUGUSTO C.
LAGMAN, REX C. DRILON, Davide Jr., CJ,
MIGUEL HILADO, LEY SALCEDO, Puno,
and MANUEL ALCUAZ JR., Panganiban,
Petitioners, Quisumbing,
Ynares-Santiago,
- versus - Sandoval-Gutierrez,
Carpio,
Austria-Martinez,
COMMISSION ON ELECTIONS; Corona ,
COMELEC CHAIRMAN BENJAMIN Carpio Morales,
ABALOS SR.; COMELEC BIDDING Callejo Sr.,
and AWARD COMMITTEE CHAIRMAN Azcuna,
EDUARDO D. MEJOS and MEMBERS' Tinga,
GIDEON DE GUZMAN, JOSE F. Chico-Nazario, and
BALBUENA, LAMBERTO P. LLAMAS, Garcia, JJ
and BARTOLOME SINOCRUZ JR.;
MEGA PACIFIC eSOLUTIONS, INC.; Promulgated:
and MEGA PACIFIC CONSORTIUM,
Respondents. June 15, 2005
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- --- -- -- -- -- -- x
RESOLUTION
PANGANIBAN, J.:
ur Decision in the present case voided the Contract
O
entered into by the Commission on Elections (Comelec)
for the supply of automated counting machines (ACMs)
because of 'clear violation of law and jurisprudence and
'reckless disregard of [Comelec's ] own bidding rules and
procedure. Moreover, 'Comelec awarded this billion-dollar
undertaking with inexplicable haste, without adequately
checking and observing mandatory financial, technical
and legal requirements. x x x. 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. As a result, the ACMs
illegally procured and improvidently paid for by Comelec
were not used during the 2004 national elections.
In its present Motion, the poll body expressly admits that
the Decision 'has become final and executory, and that
'COMELEC and MPC-MPEI are under obligation to make
mutual restitution. Otherwise stated, this admission
implies that the ACMs are to be returned to MPC-MPEI,
and that the sum of over one billion pesos illegally paid
for them be refunded to the public purse. In short,
ownership of the ACMs never left MPC-MPEI and the
money paid for them still belongs, and must be returned,
to the government.
Consequently, the ACMs, which 'admittedly failed to pass
legally mandated technical requirements' cannot be used
during the forthcoming elections in the Autonomous
Region for Muslim Mindanao (ARMM). Apart from

formidable legal, jurisprudential, technical and financial


obstacles, the use of the machines would expose the
ARMM elections to the same electoral pitfalls and frauds
pointed out in our Decision. If the ACMs were not good
enough for the 2004 national elections, why should they
be good enough now for the 2005 ARMM elections,
considering that nothing has been done by Comelec to
correct the legal, jurisprudential and technical flaws
underscored in our final and executory Decision?
The Motion
Before us is the Commission on Election's 'Most
Respectful Motion for Leave to Use the Automated
Counting Machines in [the] Custody of the Commission on
Elections for use (sic) in the August 8, 2005 Elections in
the Autonomous Region for Muslim Mindanao (ARMM),
dated December 9, 2004. In its January 18, 2005
Resolution, the Court required the parties to comment.
After careful deliberation on all pleadings at hand, we now
resolve the Motion.
Background Information
At the outset, we stress that the Decision in the present
case, promulgated on January 13, 2004, has' long
attained finality. In our February 17, 2004 Resolution, we
denied with finality Comelec's Motion for Reconsideration
dated January 28, 2004, as 'well as private respondents'
Omnibus Motion dated January 26, 2004. The Decision
was recorded in the Book of Entries of Judgments on
March 30, 2004.
Recall that our Decision declared Comelec to have acted
with grave abuse of discretion when, by way of its
Resolution No. 6074, it awarded the Contract for the
supply of automated counting machines (ACMs) to private
respondents. It did so, not only in clear violation of law
and jurisprudence, but also with inexplicable haste and
reckless disregard of its own bidding rules and
procedures;
particularly
the
mandatory
financial,
technical and legal requirements. It further manifested
such grave abuse of discretion when it accepted the
subject computer hardware and software even though, at
the time of the award, these had patently failed to pass
eight critical requirements designed to safeguard the
integrity of the elections. Consequently, this Court was
constrained to exercise its constitutional duty by voiding
the assailed Resolution No. 6074 awarding the Contract to
Mega Pacific Consortium, as well as the subject Contract
itself executed between Comelec and Mega Pacific
eSolutions, Inc.
Comelec
was
further
ordered
to
refrain
from
implementing any other contract or agreement it had
entered into with regard to the said project. We also
declared that, as a necessary consequence of such nullity
and illegality, the purchase of the ACMs and the software,
along with all payments made for them, had no basis in
law. Hence, the public funds spent must be recovered
from the payees and/or the persons who made the illegal
disbursements possible, without prejudice to possible
criminal prosecutions against them.
Likewise, our February 17, 2004 Resolution denying
reconsideration found movants to have raised the same
procedural and substantive issues already exhaustively
Page 2 of 8

discussed and definitively passed upon in our Decision. In


that Resolution, we emphasized (and we reiterate here)
that the Decision did not prohibit automation of the
elections. Neither did the Court say that it was opposed to
such project (or the use of ACMs) as a general
proposition. We repeated our explanation that the
reason for voiding the assailed Resolution and the
subject Contract was the grave abuse of discretion
on the part of Comelec; as well as its violations of
law -- specifically RA 9184, RA 8436, and RA 6955
as amended by RA 7718; prevailing jurisprudence
(the latest of which was Agan v. Philippine
International Air Terminals Co., Inc.
); and the
bidding rules and policies of the Commission itself.
Comelec's Claims
Notwithstanding our Decision and Resolution, the present
Motion claims, inter alia, that the ARMM elections are
slated to be held on August 8, 2005, and are mandated
by RA 9333 to be automated; that the government has
no available funds to finance the automation of those
elections; that considering its present fiscal difficulties,
obtaining a special appropriation for the purpose is
unlikely; that, on the other hand, there are in Comelec's
custody at present 1,991 ACMs, which were previously
delivered by private respondents; that these machines
would deteriorate and become obsolete if they remain idle
and unused; that they are now being stored in the
Comelec Maxilite Warehouse along UN Avenue, at storage
expenses of P329,355.26 a month, or P3,979,460.24
annually.
The Motion further alleges that 'information technology
experts, who purportedly supervised all stages of the
software development for the creation of the final version
to be used in the ACMs, have unanimously confirmed that
this undertaking is in line with the internationally
accepted standards (ISO/IEC 12207) for software life
cycle processes, 'with its quality assurance that it would
be fit for use in the elections x x x.
Comelec also points out that the process of 'enhancement
of the counting and canvassing software has to be
commenced at least six (6) months prior to the August 8,
2005 ARMM elections, in order to be ready by then. It
asserts that its Motion is (a) without prejudice to the
ongoing Civil Case No. 04-346 pending before the
Regional Trial Court of Makati City, Branch 59, entitled
'Mega Pacific eSolutions, Inc. v. Republic of the Philippines
(represented by the Commission on Elections), for the
collection of a purported P200 million balance due from
Comelec under the voided Contract; and (b) with a
continuing respectful recognition of the finality and legal
effects of our aforesaid Decision. At bottom, Comelec
prays that it be granted leave to use the ACMs in its
custody during the said ARMM elections.
Private Respondents' Contentions
Commenting on the present Motion, private respondents take
the position that, since the subject ACMs have already been
delivered to, paid for and used by Comelec, the Republic of the
Philippines is now their owner, without prejudice to Mega Pacific
eSolutions, Inc.'s claim for damages in the case pending before
the RTC of Makati; and that, consequently, as far as private
respondents are concerned, the question of using the subject
ACMs for the ARMM elections is dependent solely on the
discretion of the owner, the Republic of the Philippines.

Petitioners' Comment
On the other hand, petitioners contend that Comelec is
asking this Court to render an advisory opinion, in
contravention of the constitutional provision that explicitly
states that the exercise of judicial power is confined to
(1) settling actual controversies involving rights that are
legally demandable and enforceable; and (2) determining
whether there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of government.
Petitioners assert that there is no longer any live case or
controversy to speak of -- an existing case or controversy
that is appropriate or ripe for determination, not merely
conjectural or anticipatory; and that Comelec's allegations
in its Motion do not amount to an actual case or
controversy that would require this Court to render a
decision or resolution in the legitimate exercise of its
judicial power. This lack of actual controversy is clearly
seen in the relief prayed for in the Motion: the grant of a
leave to use the ACMs during the ARMM elections.
Obviously, Comelec merely seeks an advisory opinion
from this' Court on whether its' proposal to use the ACMs
during the said elections might be in violation of this
Court's Decision dated January 13, 2004, and Resolution
dated February 17, 2004.
Assuming arguendo that the present Motion might
somehow be justified by the government's fiscal
difficulties, petitioners further argue that permitting
Comelec to use the ACMs would nevertheless allow it to
do indirectly what it was not permitted by this Court to do
directly. They argue that the instant Motion is merely a
subterfuge on the poll body's part to resurrect a lost case
via a request for an advisory opinion.
The OSG's Comment
The Office of the Solicitor General (OSG) declares in its
Comment that, in compliance with this Court's directive
for it to '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
[Comelec] Resolution and Contract, it filed on behalf of
the Republic on July 7, 2004, an Answer with
Counterclaim in Civil Case No. 04-346. The OSG prayed
for the return of all payments made by Comelec to Mega
Pacific under the void Contract, amounting to
P1,048,828,407.
The OSG also manifests that it received a copy of the
Complaint-Affidavit dated September 15, 2004, filed with
the Office of the Ombudsman by the Bantay Katarungan
Foundation and the Kilosbayan Foundation against the
Comelec commissioners who had awarded the Contract
for the ACMs; and the private individuals involved,
including the incorporators and officers of Mega Pacific
eSolutions, Inc. This Complaint-Affidavit was for violation
of the Anti-Plunder Law (RA 7030), the Anti-Graft and
Corrupt Practices Act (RA 3019 as amended), and the
Code of Conduct and Ethical Standards for Public Officials
and Employees (RA 6713).
The complainants alleged immense kickbacks and
horrendous overpricing involved in the purchase of the
1,991 ACMs. Based on the OSG's available records, it
appears that Comelec withdrew from Land Bank P1.03
billion, but actually paid Mega Pacific only P550.81
million. Furthermore, commercial invoices and bank
applications for documentary credits reveal that each ACM
Page 3 of 8

cost only P276,650.00, but that Comelec agreed to pay


Mega Pacific P430,394.17 per unit -- or a differential of
P153,744.17 per unit or an aggregate differential of
P306.10 million. Moreover, Mega Pacific charged P83.924
million for value-added taxes (VAT) and P81.024 million
more for customs duties and brokerage fees, when in fact
-- under the nullified Contract -- it was supposed to be
exempt from VAT, customs duties and brokerage fees.
Lastly, Comelec agreed to peg the ACM price at the
exchange rate of P58 to $1, when the exchange rate was
P55 to $1 at the time of the bidding, resulting in
additional losses for the government amounting to about
P30 million.
The OSG hews to the view that the automation of
elections, if properly carried out, is a desirable objective,
but is mindful of the need for mutual restitution by the
parties as a result of the final Decision nullifying the
Contract for the ACMs. Nevertheless, in apparent
response to Comelec's clamor to use the ACMs in the
ARMM elections, the OSG manifests that it has no
objection to the proposal to use the machines, provided
however that (1) Comelec should show with reasonable
certainty that the hardware and software of the ACMs can
be effectively used for the intended purpose; (2) Mega
Pacific should be made to return to the Republic at least a
substantial portion of the overprice they charged for the
purchase of the ACMs; and (3) the use of these machines,
if authorized by this Court, should be without prejudice to
the prosecution of the related criminal cases pending
before the Office of the Ombudsman (OMB).
The OMB's Manifestation
For its part, the Office of the Ombudsman manifested that
as a result of the nullification of the Contract, various
fact-finding investigations had been conducted, and
criminal and administrative charges filed before it against
the persons who appeared to be responsible for the
anomalous' Contract; and that the various cases had
been
consolidated,
and
preliminary
investigation
conducted in respect of the non-impeachable Comelec
officials
and
co-conspirators/private
individuals.
Furthermore, the OMB is in the process of determining
whether a verified impeachment complaint may be filed
against the poll body's impeachable officials concerned.
A Supplemental Complaint prepared and filed by the Field
Investigation Office of the Ombudsman reveals that the
ACMs were overpriced by about P162,000.00 per unit;
that, additionally, Mega Pacific unduly benefited by
including VAT and import duties amounting to P194.60
million in its bid price for the ACMs, despite Section 8 of
RA 8436 exempting such equipment from taxes and
duties; that Comelec nonetheless awarded the Contract to
Mega Pacific at the same bid price of P1.249 billion,
inclusive of VAT, import duties and so on; and that the
Commission allowed Mega Pacific to peg the ACM price
using an exchange rate of P58 to $1 instead of P53 to $1,
which further inflated Mega Pacific's windfall.
The foregoing notwithstanding, the OMB had allegedly
prepared a comment on the present Motion, stating its
position on the issue of utilizing the ACMs, but upon
further reflection decided not to file that comment. It
came to the conclusion that ventilating its position on the
matter might engender certain impressions that it had
already resolved factual and/or legal issues closely
intertwined with the elements of the offenses charged in

the criminal and administrative cases pending before it.


'For one, utilizing illegally procured goods or the
intentional non-return thereof to the supplier may have a
bearing on the determination of evident bad faith or
manifest partiality, an essential element in any
prosecution under the anti-graft law, and may, at the
same time, be constitutive of misconduct penalized under
relevant disciplinary laws.
Consequently, out of prudential considerations, the OMB
prayed to be excused from commenting on the merits of
the present Motion, to avoid any perception of
prejudgment, bias or partiality on its part, in connection
with the criminal and administrative cases pending before
it.
The Court's Ruling
Decision Subverted
by the Motion
There are several reasons why the present Motion must
be denied. First, although it professes utmost respect for
the finality of our Decision of January 13, 2004 -- an
inescapable and immutable fact from which spring equally
ineludible consequences -- granting it would have the
effect of illegally reversing and subverting our final
Decision. Plainly stated, our final Decision bars the
grant of the present Motion.
To stress, as a direct result of our January 13, 2004
Decision, the Contract for the supply of the subject ACMs
was voided, and the machines were not used in the 2004
national elections. Furthermore, the OSG was directed 'to
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. Accordingly, in Civil Case No. 04-346, the
government counsel has prayed for mutual restitution;
and for the 'return of all payments, amounting to
P1,048,828,407.00 made by Comelec to Mega Pacific
under the void Contract.
In the meantime, Comelec has done nothing -- at least,
nothing has been reported in the present Motion -- to
abide by and enforce our Decision. Apparently, it has not
done anything to rectify its violations of laws,
jurisprudence and its own bidding rules referred to in our
judgment. Neither has it reported any attempt to correct
and observe the 'mandatory financial, technical and legal
requirements' needed to computerize the elections.
Apparently, it has simply filed the present Motion asking
permission to do what it has precisely been prohibited
from doing under our final and executory Decision. If law
and jurisprudence bar it from using the subject ACMs
during the last elections, why should it even propose to
use these machines in the forthcoming ARMM elections?
True, these elections are important. But they cannot be
more important than the 2004 national elections. Note
that the factual premises and the laws involved in the
procurement and use of the ACMs have not changed.
Indeed, Comelec has not even alleged, much less proven,
any supervening factual or legal circumstances to justify
its Motion.
Basic and primordial is the rule that when a final
judgment becomes executory, it thereby becomes
Page 4 of 8

immutable and unalterable. In other words, such a


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

and reckless disregard of its own bidding rules and


procedures.

To support its present Motion, Comelec appended as


Annex 1 a letter dated January 22, 2004. Addressed to its
chairman, the Annex was signed by four self-proclaimed
'information technology experts, who had gratuitously
contended that this Court's Decision was 'one of the most
inopportune rulings ever to come out of the hallowed halls
of that High Tribunal; blame the Decision for supposedly
forcing our people 'to entrust their votes to a manual
system of counting and canvassing that have been proven
to be prone to massive fraud in the past; and mouth
legal/technical arguments that have already been
repeatedly debunked in the Decision and Resolution here.
The letter also included a long-winded, tortuous
discussion of the software development life cycle.

In its main text, the Motion concedes that our Decision


'has become final and executory, and that all that remains
to be done is 'to make mutual restitution. So, what is the
relevance of all these useless argumentations and
pontifications in Annex 1 by the Commission's selfproclaimed 'experts' ? For its own illegal acts, imprudence
and grave abuse of discretion, why blame this Court? For
Comelec to know immediately which culprit should bear
full responsibility for its miserable failure to automate our
elections, it should simply face the mirror.

A quick check of the case records confirmed our


suspicion. The very same letter dated January 22, 2004
had previously been appended as Annex 2 to private
respondents' 'Omnibus Motion A) for reconsideration of
the Decision dated 13 January 2004; b) to admit exhibits
in refutation of the findings of fact of the Court; c) to
have the case set for hearing and/or reception of
evidence if deemed necessary by the Court. The only
difference is that this time around, Comelec overlooked or
failed to photocopy the last page (page 17) of the letter,
bearing the signatures of the four other purported
'information technology experts. In other words, to
support its present Motion, it merely recycled an earlier
exhibit that had already been used in seeking
reconsideration of our aforesaid Decision.

Second, the grant of the Motion will bar or jeopardize the


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

While expressing utmost reverence for the finality of the


Decision, Comelec implicitly seeks, nevertheless, to have
this Court take up anew matters that have already been
passed upon and disposed of with finality.
It is a hornbook doctrine that courts are presumed to
have passed upon all points that were raised by the
parties in their various pleadings, and that form part of
the records of the case. Our Resolution, disposing of
respondents' arguments on reconsideration, did not
explicitly and specifically address all of the matters raised
in the said letter of January 22, 2004. It is presumed
however, that all matters within an issue raised in a case
were passed upon by the Court, as indeed they were in
the instant case. And as we have held elsewhere, courts
will refuse to reopen what has been decided; they will not
allow the same parties or their privies to litigate anew a
question that has been considered and decided with
finality.
Besides, the letter of January 22, 2004, laden as it is with
technical jargon and impressive concepts, does not serve
to alter by even the minutest degree our finding of grave
abuse of discretion by Comelec, on account of its clear
violations of law and jurisprudence and its unjustifiable

Furthermore, the letter would obviously not contain


anything that might serve to persuade us that the
situation obtaining in January 2004 has so changed in the
interim as to justify the use of the ACMs in August 2005.
The Commission seems to think that it can resurrect the
dead case by waving at this Court a letter replete with
technical jargon, much like a witch doctor muttering
unintelligible incantations to revive a corpse.

Recovery of Government Funds


Barred by the Motion

Indeed, if the government is conned into not returning


the ACMs but instead keeping and utilizing them, there
would be no need for Mega Pacific to refund the payments
made by Comelec. In fact, such recovery will no longer be
possible. Consequently, all those who stood to benefit (or
have already benefited) financially from the deal would no
longer be liable for the refund. They can argue that there
was nothing wrong with the voided Resolution and
Contract, nothing wrong with the public bidding, nothing
wrong with the machines and software, since the
government has decided to keep and utilize them. This
argument can be stretched to abate the criminal
prosecutions pending before the OMB and the
impeachment proceedings it is considering. After all,
'reasonable doubt is all that is needed to secure acquittal
in a criminal prosecution.
In brief, the poll body's Motion not only asks for what is
legally impossible to do (to reverse and subvert a final
and executory Decision of the highest court of the land),
but also prevents the Filipino people from recovering
illegally disbursed public funds running into billions of
pesos. Verily, by subverting the Decision of this Court, the
Motion would be unduly favoring and granting virtual
immunity from criminal prosecution to the parties
responsible for the illegal disbursement of scarce public
funds.
Use of the ACMs and Software
Detrimental to ARMM Elections

Page 5 of 8

Third, the use of the unreliable ACMs and the


nonexistent software that is supposed to run them will
expose the ARMM elections to the same electoral ills
pointed out in our final and executory Decision. Be it
remembered that this Court expressly ruled that the
proffered hardware and software had undeniably failed to
pass eight critical requirements designed to safeguard the
integrity of elections, especially the following three items:
They failed to achieve the accuracy rating
criterion of 99.9995 percent set
up by the Comelec itself.
They were not able to detect previously
downloaded results at various
canvassing
or
consolidation
levels and to prevent these from
being inputted again.

They were unable to print the statutorily


required audit trails of the
count/canvass at different levels
without any loss of data.
The Motion has not at all demonstrated that these
technical requirements have been addressed from the
time our Decision was issued up to now. In fact, Comelec
is merely asking for leave to use the machines, without
mentioning any specific manner in which the foregoing
requirements have been satisfactorily met.
Equally important, we stressed in our Decision that
'[n]othing 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 retested,
if nothing was done about the programming defects and
deficiencies, the same danger of massive electoral fraud
remains.
Other than vaguely claiming that its four so-called
'experts' have 'unanimously confirmed that the software
development which the Comelec undertook, [was] in line
with the internationally accepted standards (ISO/IEC
12207) [for] software life cycle processes, the present
Motion has not shown that the alleged software
development was indeed extant and capable of
addressing the programming defects and deficiencies'
pointed out by this Court.
At bottom, the proposed use of the ACMs would subject
the ARMM elections to the same dangers of massive
electoral fraud that would have been inflicted by the
projected automation of the 2004 national elections.
Motion Inadequate
and Vague
Fourth , assuming arguendo that the foregoing
formidable legal, financial and technical obstacles could
be overcome or set aside, still, the Motion cannot be
granted because it is vague; it does not contain enough
details to enable this Court to act appropriately.

The sham nature of the Motion is evident from the


following considerations. 'While Comelec asserts a
pressing need for the ACMs to be used in the ARMM
elections, strangely enough, it has not bothered to
determine the number of units' that will be required for
the purpose, much less tried to justify such quantification.
It contracted for a total of 1,991 ACMs, intended for use
throughout the entire country during the 2004 elections.
Are we to believe that all 1,991 units would be utilized to
count and canvass the votes cast in the ARMM elections?
Such a scenario is highly unlikely, even ridiculous.
A genuine, bona fide proposal for the utilization of the
ACMs would naturally have included a well-thought-out
plan of action, indicating the number of units to be
deployed, places of utilization, number of operators and
other personnel required, methods/periods of deployment
and recovery or retrieval, assessments of costs and risks
involved in implementing the proposal, and concomitant
justifications, among other things. Now, either 'The Plan
is being kept absolutely top secret, or it is completely
nonexistent.
Furthermore, once the ACMs are deployed and utilized,
they will no longer be in the same condition as when they
were first delivered to Comelec. In fact, it is quite
probable that by the time election day comes around,
some of the machines would have been mishandled and
damaged, maybe even beyond repair. What steps has the
poll body taken to make certain that such eventualities, if
not altogether preventable, can at least be minimized so
as to ensure the eventual return of the ACMs and the full
recovery of the payments made for them? A scrutiny of
the 4-page Motion ends in futility. It is all too clear that a
failure or inability of Comelec to return the machines sans
damage would most assuredly be cited as a ground to
refuse the refund of the moneys paid. Yet, if Comelec has
given any thought at all to this or any other contingency,
such fact has certainly not been made evident to us.
ARMM Elections Not Jeopardized
by Nonuse of ACMs
Fifth , there is no basis for the claim that unless the
subject ACMs are used, the ARMM elections would not be
held.
At the outset, if such elections are not held, the blame
must be laid squarely at the doorstep of Comelec. To
stress, had it not gravely abused its discretion, the
automation of the vote counting and canvassing
processes would have already become a reality over a
year ago, and the ACMs that would have been used in the
2004 national elections would now be available for the
ARMM elections.
In any event, the Commission in its Motion argues that
the government, given its present fiscal difficulties, has
no available funds to finance the automation of the ARMM
elections. Without even asking under what authority it
has assumed the role of Treasury spokesman, we
emphasize that there would not now be any lack of funds
for election automation had it not improvidently turned
over P1 billion of taxpayers' moneys to Mega Pacific's
bank accounts.
Nevertheless, had the poll body been honestly and
genuinely intent on implementing automated counting
and canvassing for the ARMM elections, it ought to have
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informed Congress of the non-availability of the subject


ACMs due to our Decisions and of the need for special
appropriations, instead of wasting this Court's time on its
unmeritorious Motion. In fact, if only it had taken proper
heed of our Decision of January 13, 2004, it could have
conducted an above-board public bidding for the supply of
acceptable ACMs.
Certainly, this option or course of action was not
foreclosed by our Decision. Moreover, there was sufficient
time within which to conduct the public bidding process.
RA 9333, which set the second Monday of August 2005
(August 8, 2005) as the date of the ARMM elections, was
enacted on September 21, 2004. Undoubtedly, Comelec
was made aware of the proposed date of the ARMM
elections way before the passage of RA 9333. Thus, the
poll body had about ten (10) months at the very least
(between the end of September 2004, when RA 9333
came into force and effect, and August 8, 2005) to lobby
Congress, properly conduct a public bidding, award the
appropriate contracts, deliver and test the new machines,
and make final preparations for the election.
Even assuming that a new public bidding for ACMs was
not a viable option, still, Comelec has had more than
sufficient lead time -- about ten months counted from the
end of September 2004 until August 8, 2005 -- to prepare
for manual counting and canvassing in the ARMM
elections. It publicly declared, sometime in late January
2004, that notwithstanding our Decision nullifying the
Mega Pacific Contract, it would still be able to implement
such manualization for the May 10, 2004 national
elections. It made this declaration even though it had a
mere three months or so to set up the mechanics. In this
present instance involving elections on a much smaller
scale, it will definitely be able to implement manual
processes if it wants to.
There is therefore absolutely no basis for any
apprehension that the ARMM elections would not push
through simply because the present Motion cannot pass
muster. More to the point, it would be ridiculous to regard
the grant of permission to use the subject ACMs as the
conditio sine qua non for the holding of the ARMM
elections.
What is most odious is the resort to the present Motion
seeking the use of the subject ACMs despite the
availability of viable alternative courses of action that will
not tend to disturb or render this Court's final Decision
ineffectual. Thus, the present Motion is wholly
unnecessary and unwarranted. Upon it, however has
Comelec pinned all its hopes, instead of focusing on what
the poll body can and ought to do under the
circumstances. The consequences of granting its
lamentable Motion, we repeat, will indubitably subvert
and thwart the Decision of this Court in the instant case.
Equally reprehensible is the attempt of the Commission to
pass the onus of its mismanagement problems on to this
Court. For instance, the Motion quotes the cost of storage
of the ACMs in its Maxilite Warehouse at P329,355.26 per
month or P3,979,460.24 per annum. Assuming for the
nonce that the machines have to be held in storage
pending the decision in the civil case (as it would simply
not do to throw the machines out into the streets), why
must it assume the cost of storage? Per our Decision, the
machines are to be returned to Mega Pacific. If it refuses
to accept them back, it does not follow that Comelec
must pick up the tab. Instead of further wasting the

taxpayers' money, it can simply send the bill to Mega


Pacific for collection.
It would be entirely improper, bordering on unmitigated
contempt of court, for the Commission to try to pass on
the problem to this Court through its Motion.
No Actual Case or Controversy
Finally , the Motion presents no actual justiciable case or
controversy over which this Court can exercise its judicial
authority. It is well-established in this jurisdiction that 'x x
x for a court to exercise its power of adjudication, there
must be an actual case or controversy -- one which
involves a conflict of legal rights, an assertion of opposite
legal claims susceptible of judicial resolution; the case
must not be moot or academic or based on extra-legal or
other similar considerations not cognizable by a court of
justice. x x x [C]ourts do not sit to adjudicate mere
academic questions to satisfy scholarly interest, however
intellectually challenging.
The controversy must be
justiciable -- definite and concrete, touching on the legal
relations of parties having adverse legal interests. In other
words, the pleadings must show an active antagonistic
assertion of a legal right, on the one hand, and a denial
thereof on the other; that is, it must concern a real and not
a merely theoretical question or issue. There ought to be
an actual and substantial controversy admitting of specific
relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would
be upon a hypothetical state of facts.
A perusal of the present Motion will readily reveal the
utter absence of a live case before us, involving a clash of
legal rights or opposing legal claims. At best, it is merely
a request for an advisory opinion, which this Court has no
jurisdiction to grant.
EPILOGUE
We close this Resolution by repeating the last two
paragraphs of our final and executory Decision:
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
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contracting will not produce enlightened


results.
Comelec must follow and not skirt our Decision. Neither
may it short-circuit our laws and jurisprudence. It should
return the ACMs to MPC-MPEI and recover the
improvidently disbursed funds. Instead of blaming this
Court for its illegal actions and grave abuse of discretion,
the Commission should, for a change, devise a legally and
technically sound plan to computerize our elections and

show our people that it is capable of managing the


transition from an archaic to a modern electoral system.
WHEREFORE, the Motion is hereby DENIED for utter lack
of merit.
SO ORDERED.
ARTEMIO V. PANGANIBAN
Associate Justice

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