G.R. No.

159139 June 15, 2005

INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, MA. CORAZON M. AKOL,

MIGUEL UY, EDUARDO H. LOPEZ, AUGUSTO C. LAGMAN, REX C. DRILON, MIGUEL HILADO,
LEY SALCEDO, and MANUEL ALCUAZ JR., Petitioners,
vs.
COMMISSION ON ELECTIONS; COMELEC CHAIRMAN BENJAMIN ABALOS SR.; COMELEC
BIDDING and AWARD COMMITTEE CHAIRMAN EDUARDO D. MEJOS and MEMBERS GIDEON
DE GUZMAN, JOSE F. BALBUENA, LAMBERTO P. LLAMAS, and BARTOLOME SINOCRUZ
JR.; MEGA PACIFIC eSOLUTIONS, INC.; and MEGA PACIFIC CONSORTIUM, Respondents.

RESOLUTION

PANGANIBAN, J.:

Our Decision1 in the present case voided the Contract 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 [Comelecs] 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 bodys 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.2 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 Elections "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.3 In our February 17, 2004 Resolution, we denied with finality Comelecs 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.4

Likewise, our February 17, 2004 Resolution denying reconsideration found movants to have raised
the same procedural and substantive issues already exhaustively 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.5); and the bidding rules and policies of the Commission itself.

Comelecs 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 Comelecs 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 6 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 Comelecs 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 Courts Decision dated January 13, 2004, and Resolution dated February
17, 2004.

Assuming arguendo that the present Motion might somehow be justified by the governments 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 bodys part to resurrect a lost case via a request for
an advisory opinion.
The OSGs Comment

The Office of the Solicitor General (OSG) declares in its Comment that, in compliance with this
Courts 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 OSGs 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 cost
only P276,650.00, but that Comelec agreed to pay Mega PacificP430,394.17 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 Comelecs
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 OMBs 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 bodys 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 Pacifics 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 Courts 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 toP1,048,828,407.00 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 immutable and unalterable. In other words, such a judgment may no longer undergo any
modification, much less any reversal, even if it is meant to correct what is perceived to be an
erroneous conclusion of fact or law; and even if it is attempted by the court rendering it or by this
Court.7 Equally well-entrenched is the doctrine that what is not permitted to be done directly may not
be done indirectly either. In the instant case, it is unarguable that the inexorable result of granting the
present Motion will precisely be a subversion of the Decision, or at least a modification that would
render the latter totally ineffective and nugatory.

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 8 self-proclaimed "information technology
experts,"9 who had gratuitously contended that this Courts 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.

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."10 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.

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, 11 as indeed
they were in the instant case. And as we have held elsewhere,12 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 and reckless
disregard of its own bidding rules and procedures.

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.

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."13 So, what is the relevance of all these
useless argumentations and pontifications in Annex 1 by the Commissions self-proclaimed
"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.

Recovery of Government Funds Barred by the Motion

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."

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 bodys 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

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."14

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

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."15

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 16 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 Pacifics bank accounts.

Nevertheless, had the poll body been honestly and genuinely intent on implementing automated
counting and canvassing for the ARMM elections, it ought to have informed Congress of the non-
availability of the subject ACMs due to our Decisions and of the need for special appropriations,
instead of wasting this Courts 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 action17 that will not tend to disturb or render this
Courts 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 atP329,355.26 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." 18 The controversy must be justiciable --
definite and concrete, touching on the legal relations of parties having adverse legal interests. 19 In
other words, the pleadings must show an active antagonistic assertion of a legal right, on the one
hand, and a denial thereof on the other; that is, it must concern a real and not a merely theoretical
question or issue.20 There ought to be an actual and substantial controversy admitting of specific
relief through a decree conclusive in nature, as distinguished from an opinion advising what the law
would be upon a hypothetical state of facts.21

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

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 contracting will not produce enlightened
results."23

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.