G.R. No.
212584 November 25, 2014 negligence/dereliction of duty, intellectual dishonesty and emotional
ALROBEN J. GOH, Petitioner,
vs.
HON. LUCILO R. BAYRON and COMMISSION ON
ELECTIONS, Respondents.
DECISION
CARPIO, J.:
The Case
This case is a Petition for Certiorari1 with prayer for the issuance of a
preliminary mandatory injunction filed by Alroben J. Goh (Goh) assailing
Resolution Nos. 9864 and 9882 issued by the Commission on Elections
(COMELEC).
Resolution No. 9864,2 promulgated on 1 April 2014, affirmed the
recommendation of the Office of the Deputy Executive Director (ODEDO).
The ODEDO found the petition seeking the recall (recall petition) of Mayor
Lucilo R. Bayron (Mayor Bayron), the incumbent mayor of Puerto Princesa
City, sufficient in form and substance. However, Resolution No. 9864
suspended all proceedings under the recall petition because the Financial
Services Department (FSD) of the COMELEC raised an issue as to the
funding of the entire process of recall. The COMELEC Chairman and all
COMELEC Commissioners3 signed Resolution No. 9864 without any
separate opinion.
Resolution No. 9882,4 promulgated on 27 May 2014, suspended any
proceeding relative to recall as the recall process, as stated in said
Resolution, does not have an appropriation in the General Appropriations Act
of 2014 (2014 GAA)5 and the 2014 GAA does not provide the COMELEC
with legal authority to commit public funds for the recall process. Unfike
Resolution No. 9864, five COMELEC Commissioners signed Resolution No.
9882 with a comment or a separate opinion.6
The Facts
On 17 March 2014, Goh filed before the COMELEC a recall petition,
docketed as SPA EM No. 14-004 (RCL),7against Mayor Bayron due to loss
of trust and confidence brought about by "gross violation of pertinent
provisions of the Anti-Graft and Corrupt Practices Act, gross violation of
pertinent provisions of the Code of Conduct and Ethical Standards for Public
Officials, Incompetence, and other related gross inexcusable
immaturity as Mayor of Puerto Princesa City."
On 1 April 2014, the COMELEC promulgated Resolution No. 9864.
Resolution No. 9864 found the recall petition sufficient in form and
substance, but. suspended the funding of any and all recall elections until the
resolution of the funding issue. We reproduce the text of Resolution No. 9864
below:
WHEREAS, the Commission is mandated to enforce all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum, and
recall; WHEREAS, a petition for the recall of Mayor Lucilo Bayron of Puerto
Princesa City, Palawan, is pending before this Commission, and has been
reviewed by the [ODEDO] and submitted to the en bane through a
Memorandum dated 24 March 2014, to wit:
After review of the reports/findings of EO Gapulao, the ODEDO recommends
to the Commission the issuance of a Resolution certifying to the
SUFFICIENCY of the petition for recall of Mayor Lucilo R. Baron [sic] of
Puerto Princesa City, Palawan.
WHEREAS, Section 75 of the Local Government Code (LGC) of 1991
proyides for the source of funding for the conduct of recall elections, to wit:
Section 75. Expenses Incident to Recall Elections. -All expenses incidental to
recall elections shall be borne by the COMELEC. For this purpose, there
shall be included in the annual General Appropriations Act a contingency
fund at the disposal of the COMELEC for the conduct of recall elections.
WHEREAS, Section 31 of COMELEC Resolution No. 7505 decrees that all
expenses incident to recall elections shall be borne by the Commission,
pursuant to Section 75 of the LGC. WHEREAS, a Memorandum from the
Finance Services Department dated 24 March 2014 raised an issue as to the
funding of the entire process of recall;
NOW THEREFORE, the Commission on Elections, by virtue of the powers
vested in it by the Constitution, the Local Government Code, as amended,
the Omnibus Election Code, Republic Act No. 9244, and other elections
laws, RESOLVED, as it hereby RESOLVES, to AFFIRM the recommendation
of the ODEDO as to the SUFFICIENCY of the Recall Petition filed against
Mayor Lucilo R. Bayron of Puerto Princesa City, Palawan.
RESOLVED FURTHER, considering that the FSD has raised an issue as to
the funding of any and all recall elections, any proceeding in furtherance
thereof, including the verification process, is hereby SUSPENDED until the
funding issue shall have been resolved.
SO ORDERED.8
On 28 April 2014, Mayor Bayron filed with the COMELEC an Omnibus
Motion for Reconsideration and for Clarification9 which prayed for the
dismissal of the recall petition for lack of merit.
On 19 May 2014, Goh filed a Comment/Opposition (To the 27 April 2014
Omnibus Motion for Reconsideration and for Clarification) with Motion to Lift
Suspension10 which prayed for the COMELEC's denial of Mayor Bayron's 27
April 2014 Omnibus Motion, as well as to direct COMELEC's authorized
representative to immediately carry out the publication of the recall petition
against Mayor Bayron, the verification process, and the recall election of
Mayor Bayron. On 27 May 2014, COMELEC promulgated Resolution No.
9882, as follows:
This refers to the petition for recall against Mayor Lucilo Bayron of the City of
Puerto Princesa, Province of Palawan. In Resolution No. 9864, while the
Commission en bane affirmed the recommendation of the Office of the
Deputy Executive Director for Operations (ODEDO) as to the sufficiency of
the Recall Petition, it suspended further proceedings on recall until the
funding issue raised by the Finance Services Department shall have been
resolved.
The power of recall for loss of confidence is exercised by the registered
voters of a local government unit to which the local elective official subject to
such recall belongs [Footnote 1 -Sec. 69 of the Local Government Code].
The exercise of this power is subject to the following limitations provided for
by law: (a) any elective local official may be the subject of a recall election
only once during his term of office for loss of confidence; and (b) [n]o recall
shall take place within one (1) year from the date of the official's assumption
to office or one (1) year immediately preceding a regular election [Footnote 2
- Section 74 of the Local Government Code]. Because of the cost
implications involved, the achievability of pursuing a recall proceeding to its
conclusion will depend on the availability of funds at the disposal of the
Commission on Elections (the Commission).
The conduct of recall is one of several constitutional mandates of the
Commission. Unfortunately, it cannot now proceed with the conduct of recall
elections as it does not have an appropriation or legal authority to commit
public funds for the purpose.
I. All expenses incident to Recall elections shall he for the account of the
Commission.
It is important to note that the Local Government Code (LGC) specifically
provides for the expenses in the conduct of recall elections, to wit:
"SECTION 75. Expenses Incident to Recall Elections. -All expenses incident
to recall elections shall be borne by the COMELEC. for this purpose, there
shall be included in the annual General Appropriations Act a contingency
fund at the disposal of the COMELEC for the conduct ofrecall election."
Hence, the Commission is mandated to shoulder ALL expenses relative to
the conduct of recall elections. Expenses in recall elections, unlike the other
exercises mandated by the (C]onstitution to be administered by the
Commission, is specifically treated in a special law -the LGC. Section 75 of
the LGC likewise requires the annual General Appropriations Act (GAA) to
include a contingency fund at the disposal of the Commission for the conduct
of recall elections. This leads us to the crucial question: does the 2014 GAA
[Footnote 3 - Republic Act No. 10633] include such contingency fund m the
Commission's appropriations?
II. The Commission does not have an appropriation or line item budget to
serve as a contingency fund for the conduct of recall elections under the
2014 CAA.
A careful review of the Commission's budget under the 2014 GAA reveals
that it does not have any appropriation or line item budget (line item) to serve
as a contingency fund for the conduct of recall elections. While the
Commission has a line item for the "Conduct and supervision of elections,
referenda, recall votes and plebiscites" under the Program cate~ory of its
2014 budget in the amount of Phpl.401.501.000.00, the said amount cannot
be considered as "an appropriation made by law" as required by the
Constitution [Footnote 4 -Art. VI, Section 29 (1)] nor a contingent fund
provided under the LGC considering that the said line item is legally intended
to finance the basic continuing staff support and administrative operations of
the Commission such as salaries of officials and employees as well as
essential office maintenance and other operating expenses. As such, it
cannot be used for the actual conduct of recall elections.
Under the Revised Administrative Code, an appropriation may be used only
for the specific purpose for which they are appropriated, to wit:
"SECTION 32. Use of Appropriated Funds. - All moneys appropriated for
functions, activities, projects and programs shall be available solely for the
specific purposes for which these are appropriated. "
 In prior years, including election years such as 2007, 2010 and 2013, the 2014 Budget of Expenditures and Sources of Financing (BESF) submitted by
Commission had a line item for the "Conduct and Supervision of Elections the President to Congress as required by the Constitution [Footnote 5 -Article
and other Political Exercises" under the Program category of its budget. VII, Sec. 22]. In the Glossary of Terms attached to the 2014 BESF, a
However, the said line item was never utilized for the actual conduct of any "Program" [Footnote 6 - Page 1015] is defined as "a homogenous group of
elections or other political exercises including recall elections. Again, the said activities necessary for the performance of a major purpose for which a
line item has been consistently spent for the basic continuing staff support government agency is established, for the basic maintenance of the agency s
and administrative operations of the Commission. This is because on top of administrative operations or for the provisions of staff support to agency s
the line item for the "Conduct and Supervision of Elections and other Polftical administrative operations or for the provisions of staff support to the agency
Exercises" under the Program category, separate line items were provided '.s· line functions." On the other hand, "Projects" are defined as "[s}pecial
by Congress for the conduct of the "National and Local Elections," "SK and agency undertakings which are to be carried out within a definite time frame
Barangay Elections" as well as "Overseas Absentee Voting" under the and which are intended to result [in] some pre-determined measures of
Locally Funded Projects (Project) category of the Commission's 2007, 2010 goods and services."
and 2013 budget, to wit:
Moreover, in the Organizational Perfom1ance Indicator Framework (OPIF)
Reference Guide issued by the Department of Budget and Management
Item Budget Amount Item Budget Amount
(DBM) itself, a "Program" is defined as "an integrated group of activities that
Under Program under Projects
contribute to a particular continuing objective of a department/agency."
ct and Supervision of Elections and ₱957,294,000 National and Local Elections [Footnote 7 - Page 36]
₱5,128,969,000
Political Exercises
SK and Barangay Elections ₱2,130,969,000
Hence, a budget under the category of "Program" is intended to finance the
regular day-to-day activities of the Commission for the continuing basic
Overseas Absentee Voting ₱238,421,000
maintenance of its administrative operations. Those activities are regularly
undertaken by the Commission regardless of whether or not an election or
ct and Supervision of Elections and ₱1, Automated National and Local any ₱5,216,536,000
political exercises are being administered by the Commission. With
Political Exercises 101,072.000 Elections respect to budget under the category of "Project", it is intended to fund the
special undertakings or activities of the Commission which are not carried out
SK and Barangay Elections on a₱3,241,535,000
regular day-today basis such as the actual administration of elections
and other political exercises including recall elections. Hence, it is illegal to
Overseas Absentee Voting ₱188,086,000
proceed with any activity falling within the definition of "Project" by using the
ct and Supervision of Elections and ₱1,452,752,000 Synchronized National, Local and budget intended to finance the activities within the scope of "Program." The
₱4,585,314,000
Political Exercises ARMM Elections only instance when the Constitution allows the budget intended for "Program"
to be used for "Project" is when there is a valid augmentation.
SK and Barangay Elections ₱1,175,098,000
Clearly, thus, the Commission's appropriations in the 2014 GAA does [sic]
Overseas Absentee Voting ₱105,036,000
not include any line item for a contingency fund for the specific purpose of
conducting recall elections. In fact, the same has been true for all
appropriations of the Commission since 2005.
Thus, all expenses relative to the actual conduct of elections were charged
against the specific line items for "National and Local Elections," "SK and
Barangay Elections" and "Overseas Absentee Voting" under the Locally Allocating funds for the purpose of conducting recall elections would not only
Funded Projects category and not against the separate line item for the be illegal under the Supreme Court ruling in Brillantes, Jr. v. Commission on
"Conduct and Supervision of Elections and other Political Exercises" under Elections [Footnote 8 - G.R. No. 163193, 15 June 2004], it would likewise,
the Program category. and more importantly, run afoul [of] the prohibition under Article VI, Section
29 (1) of the 1987 Constitution that "No money shall be paid out of the
Treasury except in pursuance of an appropriation made by law." The same
This brings us to the relevance of classifying an agency's budget into two
prohibition is reiterated in the Government Auditing Code of the Philippines
major catego.ries - Programs and Projects. Their definitions are found in the
[Footnote 9 - Presidential Decree No. 1445].
III. Augmentation is Not Possible.
III. a.) There is no Line Item for Recall Elections in the 2014 GAA.
Article VI, Section 25 (5) of the Constitution empowers the Chairman of the
Commission, along with other heads of the Constitutional Departments and
Commissions, to augment any item in the general appropriations law, to wit:
"No law shall be passed authorizing any transfer of appropriations; however,
the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item
in the general appropriations law for their respective offices from savings in
other items of their respective appropriations."
Clearly, there are three (3) requisites for the valid exercise of the power to
augment, namely:
1. There must be a law authorizing the Chairman to augment;
2. There must be a deficient existing line item in the general
appropriations law to be augmented; and
3. There must be savings on the part of the Commission.
While there is a law authorizing the Chairman to augment a deficient
appropriation (Sec. 67, General Provisions of the 2014 GAA), there is no
existing line item in the Commission's budget for the actual conduct of a
recall elections [sic]. Thus, augmentation is not possible in this case. III. b.)
Recall Elections is not one of the Specific Purposes and Priorities for
Augmentation under the 2014 GAA.
Granting arguendo that the line item for the "Conduct and supervision of
elections, referenda, recall votes and plebiscites" under the Program
category of the Commission's 2014 budget is also a line item for the conduct
of recall elections, still, augmentation cannot be made within the bounds of
the law. Under Sec. 69 of the General Provisions of the 2014 GAA, there are
priorities in the use of savings, and [the conduct of] recall elections is not one
of them, to wit:
"Sec. 69. Priority in the Use of Savings. Tn the use of savings, priority shall
he given to the augmentation of the amounts set aside for the payment of
compensation, year-end bonus and cash gifi, retirement gratuity, terminal
leave benefits, old age pension of veterans and other personnel benefits
authorized by law. and those expenditure items authorized in agency special
provisions and in other sections of the General Provisions in this Act."
Most importantly, under the 2014 GAA's Special Provisions for the
Commission, the Chairman's power to augment is limited to specific
purposes only, which purposes do not include recall elections, to wit:
"2. Use of Savings. The COMELEC, through its Chairperson, is authorized to
use savings from its appropriations to cover actual deficiencies incurred for
the current year and for the following purposes: (i) printing and/ or publication
of decisions, resolutions, and training information materials: (ii) repair,
maintenance and improvement (?l central and regional offices, facilities and
equipment; (iii) purchase of equipment, books, journals and periodicals; (iv)
necessary expenses for the employment of temporary, contractual and
casual employees; and (v) payment of extraordinary and miscellaneous
expenses, representation and transportation allowances, and other
authorized benefits of its officials and employees, subject to pertinent
budgeting, accounting and auditing rules and regulations. "
Notably, the latter restriction aforequoted under the 2014 GAA is new and
absent from General Appropriations Acts of previous years. Hence, in the
past, the Chairman could augment ANY deficient items in the Commission's
budget. But with the present legislative restrictions, augmentation is limited to
certain purposes which, unfortunately, do not include recall elections. IV.
Personal and Criminal liabilities for
Violation of the GAA and the Revised Penal Code.
Not only will the use of the Commission's current funds for the conduct of
recall elections be unconstitutional, it would likewise open the responsible
officials to possible personal and criminal liabilities.
Section 17 of the General Provisions of the 2014 GAA provides for the use of
the current year's appropriation and spells out the liability that will 'be faced
by any official or employee who will authorize, allow or permit, as well as
those who are negligent in the performance of their duties and functions
which resulted in the incurrence of obligations or commitments by the
government in violation of the provision of law, to wit:
"Sec. 17. Use of the Current Years Appropriations. All departments, bureaus
and offices of the National Government, including Constitutional Offices
enjoying fiscal autonomy and sues shall ensure that appropriations in this Act
shall be disbursed only for the purposes authorized herein and incurred
during the current year. x x x.
Officials and employees who will authorize, allow or permit, as well as those
who are negligent in the performance of their duties and functions which
resulted in the incurrence of obligations or commitments by the government
in violation of this provision shall be personally liable to the government for
the full amount obligated or committed, and subject to disciplinary actions in
accordance with Section 43, Chapter 5 and Section 80, Chapter 7, Book VI
of E.O. No. 292, and to appropriate criminal action under existing laws. "
It should be emphasized that mere utilization of a public fund to any public
use other than for which such fund was appropriated by law is considered as
a criminal act under Article 220 of the Revised Penal Code even if no
damage has resulted to the public, to wit:
"Article 220. Illegal use of public funds or property. - Any public officer who
shall apply any public fund or property under his administration to any public
use other than for which such fund or property were appropriated by law or
ordinance shall suffer the penalty of prision correcciona/ in its minimum
period or a fine ranging from one-half to the total of the sum misapplied, if by
reason of such misapplication, any damages or embarassment shall have
resulted to the public service. In either case, the offender shall also suffer the
penalty of temporary special disqualification.
If no damage or embarrassment to the public service has resulted, the
penally shall be a fine from 5 to 50 per cent of the sum misapplied."
V. The Conduct of Recall Elections may adversely affect the Commission’s
preparation's [sic] for [the} 2016 National and Local Elections.
It should be noted that the instant petition is not the only move for the
conduct of recall elections. In fact, another petition is pending for the conduct
of recall in the Province of Bulacan. Thus, should the Commission allow the
present petition to push through, it is equivalent to opening the floodgates for
numerous other recall petitions which will result in multiple counts of violation
of the existing appropriation laws. Furthermore, the conduct of several recall
elections may adversely affect the ongoing preparations for the conduct of
the May 9, 2016 National, Local and ARMM Elections, which the
Commission has commenced as far back as December of 2013.
VI. The only Solution is the Enaclment of a Law that will Appropriate Funds
for the Conduct of Recall Elections.
One solution to the Commission's predicament on recall is the inclusion in
the 2015 GAA of a contingency fund that may be used by the Commiss.ion
for the conduct of recall elections pursuant to Section 75 of the LGC. Hence,
in the Commission's budget proposal for 2015, the Commission included a
budget in the amount of Php321,570,000.00 for possible recall elections in
2015 considering that recall elections can still be conducted up to May of
2015.
An alternative solution is for persons interested in pursuing recall elections to
adopt actions that may lead to the passage by Congress of a supplemental
(special) appropriations law for the FY 2014 for the conduct of recall
elections. The same may be suppo1ted by the Commission by certifying that
such funds, which are presently lacking, are necessary to defray expenses
for the holding of recall elections, pursuant l.o Section 11, Art. IX(C) of the
Constitution.
Relative to this matter, it is unwise to request additional funding from the
DBM. Again, Section 29(1), Article VI of the Constitution is clear that the
expenditure of public funds must be pursuant to an appropriation made by
law. Since only Congress can enact laws [Footnote 10 - Section l, Article VI,
Philippine Constitution], the DBM has no power to set aside funds, more so
allot to the Commission said funds, for an item of expenditure that is not
provided in the Commission's appropriations in the 2014 GAA.
It is likewise unwise for the Commission to request the partial use of the One
Billion Peso (PH₱1,000,000,000.00) Contingent Fund under the 2014 GAA
[Footnote 11 - Page 853]. True, Special Provision No. 1 does say that the
contingent fund may be used for "new and/or urgent projects and activities
that need to be implemented during the year." However, it also says that
such fund "shall be administered by the office of the President." Given the
circumstances, not a few may interpret the Commission's request to use
such fund from the Office of the President as an affront to the independence
of this Commission. This may in turn lead some quarters to view any recall
process funded by the said Contingent Fund as tainted and biased. Going
through with this proposal would do more harm than good.
WHEREFORE, in view of all the foregoing, the Commission RESOLVED, as
it hereby RESOLVES, not to continue with any proceedings relative to recall
as it does not have a line item budget or legal authority to commit public
funds for the purpose. Hence, until a law is passed by Congress
appropriating funds for recall elections - either by approving the
Commission's budget proposal for FY 2015 or through a supplemental
(special) appropriations for FY 2014 - any proceeding relative t9 the instant
petition for recall should be suspended further.
RESOLVED, further, that this Resolution shall be applied consistently to all
other petitions for recall now pending or to be pursued by interested parties
subsequent hereto.
SO ORDERED.11
Resolution No. 9882 was signed, without comment or separate opinion, by
Chairman Sixto S. Brillantes, Jr. and Commissioner Elias R. Yusoph.
Commissioner Lucenito N. Tagle voted in favor of the resolution and filed a
comment.12 Commissioner Christian Robert S. Lim concurred in the
resolution, with the comment that "malversation should be under Article 217
not 220 [of the Revised Penal Code]."13 Commissioners Maria Gracia Cielo
M. Padaca,14 AI A. Parreno,15 and Luie Tito F. Guia16 wrote separate options.
Commissioner Tagle stated that "in order for the Commission to effectively
undertake actions relative to recall petitions, First, the budget proposal to
Congress for the FY 201 5 should contain a specific line item appropriated
for the funding of the conduct of recall elections; or Second, if feasible, we
can request a supplemental budget from Congress for the FY 2014 to
specifically answer for the funding of recall proceedings."17
Commissioner Padaca called for a holistic look of the GAA. She submitted
that "the allocation for the Commission in the GAA is primarily geared toward
our Constitutional mandate, that is, the enforcement and administration of all
laws and regulations relative to the conduct of an election, plebiscite,
initiat.ive, referendum, and recall xx x."18Therefore, the interpretation of the
provisions of the GAA should be read with the intent to pursue COMELEC's
mandate. Commissioner Padaca further pointed out that the COMELEC was
"able to conduct special elections in the first district of !locos Sur in 2011,
Zam bales in 2012, and a plebiscite for the creation of Davao Occidental in
2013, all of which lack a specific line item in the applicable GAA. The lack of
a specific appropriation or line item in the GAA did not deter [COMELEC]
from conducting and supervising an electoral exercise that was legally called
upon by the people."19 However, Commissioner Padaca recognized the
limitations set by Section 2 of the 2014 GAA20 on the COMELEC's use of its
savings.
In his separate opinion, Commissioner Parreno agreed with the factual
findings of the FSD of the COMELEC and the Office of the Chairman that the
budget for the conduct of recall elections was not in the 2014 GAA. He
quoted from the 24 March 2014 Memorandum to the FSD which stated that
the Department of Budget and Management (DBM) did not include a
provision for expenses for recall elections for Fiscal Years 2013 and 2014.
The memorandum stated that: Please be informed that for the FY 2013 and
2014, there is no provision made by the DBM for any expenses for the recall
elections. A provision was made only in the previous years in the total
amount of ₱1,000,000.00. What was provided for in our FY 2014 budget was
the regular expenses for the election activities - regular salaries of field
employees and the corresponding expenses for the regular activities of our
office.21
The Office of the Chairman, on the other hand, submits the COMELEC's
annual budget for the COMELEC En Bane's approval and directs and
supervises the operations and internal administrations of the COMELEC.
Commissioner Guia states that the majority opinion suggests that recall
elections can only be funded through a supplemental budget law. He opines
that the majority adopts a strict interpretation of the budget law when it states
that there is no 1ine item for the conduct of recall elections in the 2014 GAA.
Commissioner Guia proposes a liberal approach: that the 2014 GAA should
be construed as merely failing to provide sufficient funds for the actual
conduct of recall elections, and not as preventing COMELEC from exercising
its constitutional mandate of conducting recall elections. Commissioner
Guia's liberal approach to interpreting the budget law makes the remedy of
funding recall elections by way of augmenting an existing line item from
savings a theoretical possibility. Commissioner Guia, however, recognizes
that the GAA's Sec. 69 of the General Provisions and Sec. 2 of the Special
Provisions for the COMELEC22 limit the items that can be funded from the
COMELEC's savings. He suggests that curative legislation be made to
enable COMELEC to perform its constitutional mandate.
Goh filed the present Petition on 6 June 2014.
The Issues
In his Grounds for filing the Petition, Goh stated:
26. Petitioner respectfully moves for (a) the PARTIAL ANNULMENT and
REVERSAL of Resolution No. 9864, insofar as the same directed the
suspension of further action on the instant Recall Petition, and (b) the
ANNULMENT AND REVERSAL of Resolution No. 9882, on the ground that
in their issuance, the respondent Commission committed grave abuse of
discretion amounting to lack or excess of jurisdiction when it failed to rule
that:
I. THE 2014 GAA PROVIDES FOR AN APPROPRIATION
OR LINE ITEM BUDGET TO SERVE AS A CONTINGENCY
FUND FOR THE CONDUCT OF RECALL ELECTIONS.
II. THE RESPONDENT COMMISSION MAY LAWFULLY
AUGMENT ANY SUPPOSED INSUFFICIENCY IN
FUNDING FOR THE CONDUCT OF RECALL ELECTIONS
BY UTILIZING ITS SAVINGS.
III. THE PROPER, ORDERLY AND LAWFUL EXERCISE
OF THE PROCESS OF RECALL IS WITHIN THE
 EXCLUSIVE POWER AND AUTHORITY OF THE
RESPONDENT COMMISSION. IV. THE FACTUAL
BACKDROP OF THIS CASE DOES NOT WARRANT NOR
JUSTIFY THE DEFERMENT OF ALL PROCEEDINGS ON
RECALL PETITJONS.
27. Petitioner respectfully submits that an examination of the merits of this
case, as well as the applicable laws and entrenched legal precepts on the
legal issues presented, will clearly establish an undeniable basis for the
reversal of the questioned Resolution Nos. 9864 and 9882.
28. Indeed, notwithstanding its finding that the Recall Petition filed by
Petitioner Goh is sufficient in form and substance, Respondent Commission
nevertheless suspended the holding of a recall election supposedly through
Jack of funding. Petitioner respectfully submits that the same is a grave
abdication and wanton betrayal of the Constitutional mandate of the
Respondent Commission and a grievous violation of the sovereign power of
the people. What the Resolution Nos. 9864 and 9882 have given with one
hand (the affirmation of the sufficiency of the Recall Petition), they have
taken away with the other (the funding issue, later claimed the issue of lack
funding).23
In his comment, Mayor Bayron provided the following grounds for the
dismissal of the petition:
I. THE 2014 GENERAL APPROPRIATIONS ACT DOES NOT
CARRY ANY SPECIFIC PARTICULAR ITEM FOR THE CONDUCT
OF RECALL ELECTIONS IN THE ClTY OF PUERTO PRINCESA,
PROVINCE OF PALAWAN OR ELSEWHERE;
A. The "power of the purse" belongs to the Congress and not
with the Commission on Elections; B. Fiscal autc.momy of
the Commission on Elections operates within the parameters
of the Constitution; C. There is no particular item for the
Conduct of Recall Elections in which to apply the provision
on budget augmentation; [and]
D: ft is the Commission, in line with the present budget, that
has the authority to determine the presence and possibility of
augmentation.
II. PROGRAM AND PROJECT HAVE BEEN CLEARLY
DIFFERENTIATED BY THE COMMISSION ON ELECTIONS;
III. THE 2014 GENERAL APPROPRIATIONS ACT PRESENTS A
SPECIAL PROVISION WHICH WAS ABSENT IN THE PREVIOUS
GENERAL APPROPRIATIONS ACT THEREBY FURTHER
LIMITING THE COMELEC'S EXERCISE OF AUGMENTATION;
IV. BUDGET CAN STILL BE ALLOCATED BY CONGRESS
THROUGH THE ENACTMENT AND PASSAGE OF A 2014
SUPPLEMENTAL BUDGET OR THROUGH THE 2015 GENERAL
APPROPRIATIONS ACT;
V. GOVERNMENT FUNDS SHOULD NOT BE SPENT TO
SUPPORT ILLEGAL AND PREMATURE INSTITUTION OF
RECALL; [and]
VI. POLITICS IS A PRACTICAL MATTER, AND POLITICAL
QUESTIONS MUST BE DEALT WITH REALISTICALLY.24
The COMELEC, through the Office of the Solicitor General, argued that;
I. RESPONDENT COMELEC EN BANC DID NOT COMMIT GRAVE
ABUSE OF DISCRETION IN SUSPENDING PROCEEDINGS
RELATIVE TO THE RECALL PETITION FILED AGAINST
RESPONDENT MAYOR LUCTLO R. BAYRON OF PUERTO
PRINCESA CITY.
A. The 2014 GAA does not provide for an appropriation or
line item to serve as contingency fund for the conduct of
Recall Elections.
B. Any activity falling within the definition of a "Project," such
as Recall Elections, cannot validly proceed by using the
budget intended to finance the activities within the scope of
"Programs." C. Respondent COMELEC may not lawfully
utilize its savings to augment any insufficiency in the funding
for recall elections.
II. THE RECALL ELECTIONS BEING SOUGHT BY PETITIONER
MAY PROCEED ONLY IF A LAW IS ENACTED APPROPRIATING
FUNDS THEREFOR.
III. PETITIONER IS NOT ENTITLED TO THE ISSUANCE OF A
WRIT OF PRELIMINARY MANDATORY INJUNCTION.25
The Court's Ruling
We grant the petition. We hold that the COMELEC committed grave abuse of
TOTAL
discretion in issuing Resolution Nos. 9864 and 9882.1âwphi1 TheNEW
2014 GAA 1,938,044,000 571,753,000 225,524,000
APPRO.
provides the line item appropriation to allow the COMELEC to perform its
constitutional mandate of conducting recall elections. There is no need for
supplemental legislation to authorize the COMELEC to conduct recall Goh further pointed out that the COMELEC has Ph₱1,483,087,000
elections for 2014. appropriated under Operations, and that the PhP 1,401,501,000 for current
operating expenditure is allocated per region as follows:
The COMELEC's Fiscal Autonomy

The 1987 Constitution expressly provides the COMELEC with the power to National Capital Region 74,356,000
"[e]nforce and administer alE laws and regulations relative to the conduct of
an election, plebiscite, initiative, referendum, and recall."26 The 1987 Region I - Ilocos 97,350,000
Constitution not only guaranteed the COMELEC's fiscal autonomy,27 but also
granted its head, as authorized by law, to augment items in its appropriations Region II - Cagayan Valley 69,302,000
from its savings.28 The 2014 GAA provides such authorization to the
COMELEC Chairman.29 Cordillera Administrative Region (CAR) 63,120,000

Region III - Central Luzon 1 I 2,896,000

The COMELEC’s budget in the 2014 CAA
Region IV-A - CALABARZON 183,390,000
Goh asserts that the 2014 GAA provided COMELEC with an appropriation
for the conduct of recall elections in the total amount of Ph₱2,735,321,000. Region V – Bicol 92,944,000
As evidence, Goh reproduced the COMELEC's budget allocation in the 2014
GAA: Region VI - Western Visayas 23,252,000

Region VII - Central Visayas 108,093,000

PS MODE CO TOTAL
Region VIII - Eastern Visayas 106,144,000
1,937,544,000 450,937,000 2,388,481,000
Region IX - Zamboanga Peninsula 56,636,000
454,457,000 276,749,000 731,206,000
Region X- Northern Mindanao 76,864,000

Region XI - Davao 51,639,000

1,483,087,000 174,184,000 1,657,275,000
Region XII - SOCCSKSARGEN 44,982,000

Region XIII - CARAGA 59,481,000

500,000 120,816,000 225,524,000 346,840,000
Autonomous Region in Muslim 81,052,00031
500,000 120,816,000 225,524,000 346,,840,000
Mindanao (ARMM)

Goh further states that COMELEC's personnel themselves admitted to the

existence of a contingency fund for the lawful conduct of recall elections.
Atty. Maria Lea R. Alarkon, Acting Director III of the COMELEC's FSD,
during the 3 September 2013 budget hearing before the Senate's
Subcommittee A of the Committee on Finance, stated:
Your Honors, for the specifics of our MFO [Major Final Output] budget, x x x
conduct and supervision of elections, referenda, recall and plebiscites,
1,527,815,000; x x x.32 (Emphasis supplied)
administrative operations of the Commission such as salaries of officials and
employees as well as essential office maintenance and other operating
expenses. As such, it carmot be used for the actual conduct of recall
elections.
xxxx

Goh also cited an online news article which quoted COMELEC spokesperson
James Jimenez saying that "lack of budget (should) not (be) an issue. xx x
We always have a 'standby' budget for recall, plebiscite, etc." and adding that
the successful holding of any recall elections, referendum or plebiscite is the
fundamental mandate of the COMELEC.33
Finally, Goh presented a letter dated 28 May 2014 from Rep. Isidro T.
Ungab, Chairman of the House of Representatives' Committee on
Appropriations, addressed to Hon. Douglas S. Hagedorn, Representative of
the Third District of Palawan. The letter stated that "[t]he FY 2014 budget of
the COMELEC as authorized in the FY 2014 General Appropriations Act
amounts to ₱2,735,321,000, of which ₱1,401,501,000 is appropriated for the
conduct and supervision of elections, referenda, recall votes and
plebiscites."34
In prior years, including election years such as 2007, 2010 and 2013, the
Commission had a line item for the "Conduct and Supervision of Elections
and other Political Exercises" under the Program category of its budget.
However, the said line item was never utilized for the actual conduct of any
elections or other political exercises including recall elections. Again, the said
line item has been consistently spent for the basic continuing staff support
and administrative operations of the Commission. This is because the top of
the line item for the "Conduct and Supervision of Elections and other Political
Exercises" under the Program category, separate line items were provided
by Congress for the conduct of the "National and Local Elections," "SK and
Barangay Elections" as well as "Overseas Absentee Voting" under the
Locally Funded Projects (Project) category of the Commission's 2007, 2010
and 2013 budget, to wit:

The COMELEC, through the Solicitor General, classifies Goh's assertions as

misleading. To illustrate the lack of appropriation or line item for a
contingency fund for the conduct of recall elections in the 2014 GAA, the Item Budget
Item Budget
Year/GAA Under Amount
COMELEC countered: under Projects
Program
The amount of PhP 1,483,087,000 referred to by [Goh] allegedly for the Conduct and Supervision of
2007 ₱957,294,000 National and
conduct and supervision of election, referenda, recall votes and plebiscites,Elections and Local Elections
actually refers to operating expenditures for "Personnel Services," under the
Other Political
program "Regulation of Elections." Exercises SK and Barangay
Elections
The amount of PhP 1,401,501,000, on the other hand, is the total amount
allotted for "Personnel Services" (Ph₱1,360,975,000) and "Maintenance and Overseas
Other Operating Expenses" (Ph₱40,526,000) for Regional Allocation. 35 Absentee Voting

The COMELEC reiterated pertinent portions of Resolution No. 2010 Conduct and Supervision of
9882,36 thus: ₱1,101,072.000 Automated
Elections and National and
x x x While x x x the Commission has a line item for the "Conduct and Other Political Local Elections
supervision of elections, referenda, recall votes and plebiscites" under the Exercises
Program category of its 2014 budget in the amount of Php 1,401,501,000.00, SK and Barangay
the said amount cannot be considered as "an appropriation made by law" as Elections
required by the Constitution [Footnote 17 -Art. VI, Section 29 (I)] nor a
contingent fund provided under the LGC considering that the said line item is
legally intended to finance the basic continuing staff support and
 Overseas ₱188,086,000 Operating
Absentee Voting Expenses

nduct and Supervision of ₱1,452,752,000 Synchronized ₱4,585,314,000

ections and A. PROGRAMS
National, Local
her Political l. General
and ARMM Elections
ercises Administration and
Support SK and Barangay ₱1,175,098,000
a. General
Elections
Administration and ₱171,608,000 ₱66,201,000
Support Overseas
Services ₱105,036,000
Absentee Voting
Sub-total, General
Administration and 171,608,000 66,201,000
Despite Resolution No. 9882's statement aboutSupportthe alleged failure of the
2014 GAA to provide for a line item appropriation for the conduct of recall
elections, we hold that the 2014 GAA actually expressly
II. Supportprovides
to for a line
item appropriation for the conduct and supervision of recall elections. This is
Operations
found in the Programs category of its 2014 budget, which the
a. Conduct andCOMELEC
admits in its Resolution No. 9882 is a "line itemSupervision
for the 'Conduct
of and
supervision of elections, referenda, recall votesElections
and plebiscites.'"
and Other In addition, 6,739,000 7,830,000
one of the specific constitutional functions of the
Political Exercises conduct
COMELEC is to
recall elections. When the COMELEC receives a budgetary appropriation for
its "Current Operating Expenditures," such appropriation includesand
b. Legal Service.s
expenditures to carry out its constitutional functions, including
Adjudication of the conduct of 4,255,000 1,545,000
recall elections. Thus, in Socrates v. COMELEC 37 (Socrates), recall elections
Election Contests
were conducted even without a specific appropriation for recall elections in
the 2002 GAA. Sub-total, Support to 10,994,000 9,375,000
Operations
In Socrates, the COMELEC conducted recall elections for mayor of Puerto
Princesa City, Palawan on 24 September 2002.III.AtOperations
the time, the COMELEC
found no reason to raise any concern as to thea. funding
Conduct of the
and24 September
2002 recall elections. The COMELEC's budgetSupervision
in the 2002 of GAA provided for
the following: Elections and Other 38,105,000 57,685,000
Political Exercises

b. Legal Services and

Adjudication of 21,629,000 4,776,000
Election Contests
New Appropriations, by Program / Project
c. Conduct and
Current Operating Expenditures
Supervision of
Elections and Other 765,537,000 23,122,000
Personal Political Exercises
Maintenance Capital Total
Services and Other Outlays
 825,271,000 85,583,000 Region V 910,854,000

Region VI
1,007,873,000 161,159,000 1, 169,032,000
Region VII

Region VIII

Region IX

Region X
500,000,000 500,000,000
Region XI - Davao

Region XII
24,480,000 24,480,000
Under these factual circumstances, we find it difficult to justify the
554,243,000 545,757,000 COMELEC's reasons why it is unable to conduct recall elections in 2014
1,100,000,000
when the COMELEC was able to conduct recall elections in 2002 despite
lack of the specific words "Conduct and supervision of x x x recall votes x x
578,723,000 545,757,000 x" in the 2002 GAA.
500,000,000 In the 2002 GAA, the phrase "Conduct and supervision
1,624,480,000
of elections and other political exercises" was sufficient to fund the conduct
of recall elections. In the 2014 GAA, there is a specific line item appropriation
578,723,000 545,757,000 for the "Conduct and supervision of x x x recall votes x x x."
500,000,000

More importantly, the COMELEC admits in its Resolution No. 9882 that the
P1,586,596,000 ₱706,916,000 ₱500,000,000
COMELEC has₱2,793,512,000
"a line item for the 'Conduct and supervision of elections,
referenda, recall votes and plebiscites.'" This admission of the COMELEC is
a correct interpretation of this specific budgetary appropriation. To be valid,
an appropriation must indicate a specific amount and a specific purpose.
In the 2002 GAA, the COMELEC had Ph₱910,854,000 appropriated under However, the purpose may be specific even if it is broken down into different
Operations, and that the Ph₱788,659,000 for current operating expenditure related sub-categories of the same nature. For example, the purpose can be
was allocated per region as follows: to '"conduct elections," which even if not expressly spelled out covers
regular, special, or recall elections. The purpose of the appropriation is still
specific - to fund elections, which naturally and logically include, even if not
National Capital Region 41,708,000
expressly stated, not only regular but also special or recall elections.
Region I 57,269,000
The COMELEC’s Savings
Cordillera Administrative Region (CAR) 34,975,000
Nowhere in the COMELEC's comment, however, does it dispute the
Region II 40,813,000
existence of savings. In the transcript of the hearing for the COMELEC's
2014 budget, the COMELEC estimated to have PhPl0.7 billion savings
Region III around the end63,799,000
of 2013. However, since the DBM did not include a line
budget for certain items,. Chairman Brillantes estimated that the PhP 10.7
Region IV 103 ,689 ,000
billion savings will be reduced to about Ph₱2 billion after the COMELEC
augments expenses for the purchase of its land, warehouse, building, and
the overseas absentee voting. This estimate was made under the
assumption that the 2014 GAA will provide a line item budget for the
COMELEC's land, warehouse, building, and the overseas absentee voting.
In his opening remarks before the Senate Committee on Finance, Chairman
Brillantes underscored the need for a line item budget for certain items that
the COMELEC can subsequently augment based on its savings. Chairman
Brillantes was aware that an item without a line budget cannot be funded by
savings.
MR. BRILLANTES. 2014 is a non-election year, your Honor. Therefore, the
budget that the Commission on Elections would be asking will not really be
too much. We, in fact, asked for five billion, which is much, much lower than
all of our previous budgets but this has been cut by the DBM to only 2.8.
Now, 2.8 is already acceptable to the Commission on Elections. There are
only some slight requests that we are going to ask. Since the 2.8 reduction
actually cut off our projects, like we intend to set up our own building and
purchase land. All that we are asking is that in previous years we have been
given a line budget for one million at least which we can augment based on
our savings. All that we ask is that we be given another line item for land,
building and warehouse. Even at one million each or two million each and we
will take care of the augmentation as we have enough savings which we
have tried to accumulate during the past years which we can set up our own
land, building and warehouse. So we would request that we realign, not
necessarily getting from other agencies, the amount of three million or six
million as the case may be, but get it from the same budget that we have so
that we will not touch the budget of other agencies. We have special budget
for JSSP, and this is at 226 million. We can reduce this to 220 million and put
the six million to two million each for land, building and warehouse so we can
cover it.
THE CHAIRMAN (SEN. [FRANCIS G.] ESCUDERO). Noted.
Noted, Mr. Chairman. Thank you.
MR. BRILLANTES. Yes, Your Honor. In addition to this let me just point out,
Your Honor, that this year, we are holding the barangay elections this corning
October 28. While we did, in fact, ask for a budget last year for the 2013
elections for barangay, we were only given by Congress as well as the
President 1.1 billion. What we intend [for] our budget for the October 28
barangay elections is based on our computations, 3 .4 billion. So on the
basis of that, we are going to have to set aside from our own savings 2.3
billion to cover for the entire barangay elections. So we are setting aside 2.3
billion from our own savings so that we can cover the 3.4 billion that we
expect to actuaJly spend for the October 2013 barangay elections, meaning
that the I. I plus 2.3 would be the 3.4. Therefore, that would cut off into our
savings but we are willing to sacrifice for this.
With this, Your Honor, we are ready to present our budget which is not really
much. It is only 2.8 billion.
Now, we are also - we would like also to mention by way of an addition [sic]
final statement, Your Honor. We were given zero budget for the COAV
(Committee on Overseas Absentee Voting], the overseas voting, zero
budget. We can understand that there has been some, well, reservations in
Congress as well as the President because of the poor performance in the
COAV. However, there is a new law now which requires the establishment of
an office for the overseas voting. And this new Jaw provides that the
coverage is supposed to allocate a certain amount for the appropriation for
this new office for COAV. However, this law was passed after DBM had
already submitted its budget to Congress and therefore it is not allocated. It
is not provided for under the submitted budget.
Now, we have some - we can provide for some amounts again for COAV but
we would need at least another line item for this no matter how big. We were
asking for about 60 million which is reaJly not much. We can take it out from
our own savings but we have to have a line item also for this and then we
would ask that Congress provide - as provided for by the new law that new
amounts be given to us, even another 60 million, so we can cover our
preparations for the the overseas voting for the 2016. x x x.
xxxx
THE CHAIRMAN (SEN. ESCUDERO). x x x. Second, Mr. Chairman, you
were mentioning a while ago the savings of the COMELEC. May we know
how much exactly is the savings of the COMELEC? Kasi kaya n'yo palang
punuan yung kulang ng barangay election. Kaya n'yo palang magpagawa ng
building.
MR. BRILLANTES. Tama ho iyon. Kaya ho namin kaya lang masasaktan ho
yung bibilhin naman naming lupa at saka building. Kasi ho 2.3 ang iaabono
namin sa barangay. That is why if you will notice, as soon as we finished the
May elections, May 2013 elections, I immediately announced that we were
praying na kung pwede i-postpone na natin yung barangay saka SK.
THE CHAIRMAN (SEN. ESCUDERO). I heard that but how?
MR. BRILLANTES. Pero sinabi ng Presidente tuloy, so tuloy tayo kako.
Because we only have l. J billion budget and we need about three billion
plus, so we know it will cut on our savings. Yung savings ho namin pag
titgnan ho, mahaba hong kwento yung savings namin. Pag makikita ninyo
yung notes ninyo, nag-uurnpisa sa 10. 7 billion, parang napakalaki. Pero
hindi ho totoo iyon. Ten point seven billion, marami hong natatanggal diyan.
Natanggalan kami ng 2.3 sa barangay, rnararni pa ho kaming utang na hindi
binabayaran, sa Smartmatic meron pa –
THE CHAIRMAN (SEN. ESCUDERO). Wala pa ho tayo duon. Sa ngayon
Jang ho, magkano ho yung savings ng COMELEC?
MR. BRILLANTES. Ngayon ho siguro mga 2B.
THE CHAIRMAN (SEN. ESCUDERO). Binawas n'yo na yung 2.4 sa
barangay.
MR. BRILLANTES. Tanggal ng lahat po yung barangay, yung mga utang na
dapat naming bayaran, obligasyon. At saka iyon ni-reserve namin, in-obligate
na namin para sa lupa at saka sa building ...
THE CHAIRMAN (SEN. ESCUDERO). Sa building.
MR. BRILLANTES .... which is about three.
xxxx
THE CHAIRMAN (SEN. ESCUDERO). Now, two more points, Mr. Chairman.
On the use of savings within the NEP as provided for, nakalagay ho di to
yung reuse of savings ninyo for repair, for printing, for purchase of
equipme'nt. Ang sinasabi niyo po, ang kailangan may prov'ision. Are you
asking for a provision in the special provisions to allow you to use savings for
your building or do you want an item or is it the same?
MR. BRTLLANTES. We need a line item for it, Your Honor, because we had
some debates with then - of the Senate President, who was then the
Committee Finance chairman during previous proceedings ...
THE CHAIRMAN (SEN. ESCUDERO). Na?
MR. BRILLANTES .... na meron - bumibili na ho kami ng lupa, nakapag-
down payment na nga kami ng 200 million, pero wala pala kaming line
budget for purchase of land.
THE CHAIRMAN (SEN. ESCUDERO). But was there a use of savings
provisions similar to what we have in the proposed 2014 budget in 2013?
MR. BRILLANTES. Meron ho kami, yeah, we have the savings.
THE CHAIRMAN (SEN. ESCUDERO). May use of savings provision din? ·
MR. BRILLANTES. Yes, we can use to augment but there has to be a line
budget. We cannot augment if it is zero. Yun ang naging argument nun. So
we ask for the Committee on Finance then for a one million kuwan, kami na
ang bahalang mag-augment. Binigyan naman kami for 2013 for the land at
saka warehouse. Binigyan kami tigwa-one million, so we can augment. But
we did not have time to work on it ngayong 2013 because of the elections at
saka meron pa hong barangay. So we might have to make - apply this in
2014 ...
THE CHAIRMAN (SEN. ESCUDERO). For that matter –
MR. BRILLANTES .... If we don't have any line item now, we might have a
problem in 2014. THE CHAIRMAN (SEN. ESCUDERO). For that matter,
pwede rin naman piso po yun, 'di ba? Pareho Jang naman. It's the same.
MR. BRILLANTES. Pwede rin ho. Pero sinasabi nga namin –
THE CHAIRMAN (SEN. ESCUDERO). All you need is an item, right?
MR. BRILLANTES. Sina-suggest ko nga ho kanina sa opening statement ko,
meron kami dun sa ISSP na 226 million ...
THE CHAIRMAN (SEN. ESCUDERO). Yun na lang din ang pagkunan.
MR. BRILLANTES. . .. yung six million na lang ang tanggalin, gawin na lang
220, kasya na yun dun sa ISSP namin, bigyan na lang kami ng tigto-two
million dun sa six, hindi kami kukuha sa ibang agencies, sa amin din.
THE CHAIRMAN (SEN. ESCUDERO). Within the agency din?
MR. BRILLANTES. Yes, para hindi ho tayo magkaproblema.
THE CHAIRMAN (SEN. ESCUDERO). That's for two items, right?
MR. BRILLANTES. Yes.
THE CHAIRMAN (SEN. ESCUDERO). Two or three items?
MR. BRILLANTES. Actually, four ho yun, tatlo sa –
THE CHAIRMAN (SEN. ESCUDERO). Land, building –
MR. BRILLANTES. Land, building and warehouse, tapos yung
overseas kasarna pa ho.
THE CHAIRMAN (SEN. ESCUDERO). Pang-apat yung OAV?
MR. BRILLA TES. Pang-apat ho yun.38
The COMELEC s Alleged Lack of Authority
to Augment the "Project" "Recall Elections" from Savings
Despite the Ph₱2 billion to Ph₱10.7 billion savings ex1stmg in the
COMELEC's coffers, the COMELEC asserts that it cannot legally fund the
exercise of recall elections. The power to augment from savings lies dormant
until authorized by law.39 Flexibility in the use of public funds operates only
upon legislative fiat.
x x x However, to afford the heads of the different branches of the
government and those of the constitutional commissions considerable
flexibility in the use of public funds and resources, the constitution allowed
the enactment of a law authorizing the transfer of funds for the purpose of
augmenting an item from savings in another item in the appropriation of the
government branch or constitutional body concerned. The leeway granted
was thus limited. The purpose and conditions for which funds may be
transferred were specified, i.e. transfer may be allowed for the purpose of
augmenting an item and such transfer may be made only if there are savings
from another item in the appropriation of the government branch or
constitutional body.40
The COMELEC cited the following provisions in the 2014 GAA to justify its
lack of authority to augment expenses for the conduct of recall elections from
its existing savings:
Special Provisions for the COMELEC
2. Use of Savings. The COMELEC, through ils Chairperson, is hereby
authorized to use savings from its appropriations to cover actual deficiencies
incurred for the current year and for the following purposes: (i) printing and/or
publication of decisions, resolutions, and training information materials; (ii)
repair, maintenance and improvement of central and regional offices,
facililies and equipment; (iii) purchase of equipment, books, journals and
periodicals; (iv) necessary expenses for the employment of temporary,
contractual and casual employees; and (v) payment of extraordinary and
miscellaneous expenses, representation and transportation allowances, and
other authorized benefits of its officials and employees, subject to pertinent
budgeting, accounting and auditing rules and regulations.
General Provisions in the 2014 GAA
Sec. 67. Use pf Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to use savings in
their respective appropriations to augment actual deficiencies incurred for the
current year in any item of their respectiv:e appropriations.
Sec. 68. Meaning of Savings and Augmentation. Savings refer to portions or
balances of any programmed appropriation in this Act free from any
obligation or encumbrance which are (i) still available after the completion or
final discontinuance or abandonment of the work, activity or purpose for
which the appropriation is authorized; (ii) from appropriation balances arising
from unpaid compensation and related costs pertaining to vacant positions
and leaves of absence without pay; and (iii) from appropriation balances
realized from the implementation of measures resulting in improved systems
and efficiencies and thus enabled agencies to meet and deliver the required
or planned targets, programs and services approved in this Act at a lesser
cost.
Augmentation· implies the existence in this Act of a program, activity, or
project with an appropriation, which upon implementation or subsequent
evaluation of needed resources, is determined to be deficient. In no case
shall a non-existent program.,activity, or project be funded by augmentation
from savings or by the use of appropriations otherwise authorized in this Act.
Sec. 69. Priority in the Use of Savings. In the use of savings, priority shall be
given to the augmentation of the amounts set aside for the payment of
compensation, year-end bonus and cash gift, retirement gratuity, terminal
leave benefits, old-age pension of veterans and other personnel benefits
authorized by law, and those expenditure items authorized in agency special
provisions and in other sections of the General Provisions in this Act.
(Boldfacing and underscoring supplied)
Commissioner Guia, in his Separate Opinion, stressed the disconnection
between the COMELEC's mandate and the lack of a line budget item for the
conduct of recall elections.
At this point Jet it be stated that there is a provision in the GAA limiting the
items that can be funded from realignment of savings. See Section 69 of the
General Provisions and Section 2 of the Special Provision for COMELEC in
the 2014 GAA. Providing for the conduct of recall votes is not one of them.
This limitation effectively establishes a clash between the COMELEC's
constitutional mandate as an independent constitutinnal body to administer
recall elections and the power of Congress to appropriate public funds.
This clash can simply be avoided by a curative legislation that would enable
COMELEC to perform its constitutional mandate while at the same time
recognizing the power of Congress to allocate public funds. Unless there are
other lawful means by which the conduct of recall elections can be funded,
COMELEC's hands are tied by the way the GAA is worded. The ball is now
in the hands of Congress.41
Resolution No. 9882 proposed alternative sources for funding recall
elections:
One solution to the Commission's predicament on recall is the inclusion in
the 2015 GAA of a contingency fund that may be used by the Commission
for the conduct of recall elections pursuant to Section 75 of the LGC. Hence,
in the Commission's budget proposal for 2015, the Commission included a
budget in the amount of Php321,570,000.00 for possible recall elections in
2015 considering that recall elections can still be conducted up to May of
2015.
An alternative solution is for persons interested in pursuing recall elections to
adopt actions that may lead to the passage by Congress of a supplemental
(special) appropriations law for the FY 2014 for the conduct of recall
elections. The same may be supported by the Commission by certifying that
such funds, which are presently lacking, are necessary to defray expenses
for the holding of recall elections, pursuant to Section 11, Art. IX(C) of the
Constitution.42
There is no clash between the COMELEC and Congress. We reiterate that
the 2014 GAA provides a line item appropriation for the COMELEC's conduct
of recall elections. Since the COMELEC now admits that it does not have
sufficient funds from its current line item appropriation for the "Conduct and
supervision of x x x recall votes xx x" to conduct an actual recall election,
then there is therefore an actual deficiency in its operating funds for the
current year. This is a situation that allows for the exercise of the COMELEC
Chairman's power to augment actual deficiencies in the item for the "Conduct
and supervision of x x x recall votes x x x" in its budget
appropriation.1âwphi1
The COMELEC, in Resolution No. 9882, admitted the existence of a line item
appropriation for the "Conduct and supervision of x x x recall votes x x x":
A careful review of the Commission's budget under the 2014 GAA reveals
that it does not have any appropriation or line item budget (line item) to serve
as a contingency fund for the conduct of recall elections. While the
Commission has a line item for the "Conduct and supervision of elections,
referenda, recall votes and plebiscites" under the Program category of its
2014 budget in the amount of Phpl,401,501,000.00, the said amount cannot
be considered as "an appropriation made by law" as required by the
Constitution lFootnote 4 - Arl. VI, Section 29 (I)] nor a contingent fund
provided under the LGC considering that the said line item is legally intended
to finance the basic continuing staff support and administrative operations of
the Commission such as salaries of officials and ·employees as well as
essential office maintenance and other operating expenses. As such, it
cannot be used for the actual conduct of recall elections. (Emphasis
supplied)
However, contrary to the COMELEC's assertion, the appropriations for
personnel ser-Vices and maintenance and other operating expenses falling
under "Conduct and supervision of elections, referenda, recall votes and
plebiscites" constitute a line item which can be augmented from the
COMELEC's savings to fund the conduct of recall elections in 2014. The
conduct of recall elections requires only operating expenses, not capital
outlays. The COMELEC's existing personnel in Puerto Princesa are the
same personnel who will evaluate the sufficiency of the recall petitions. and
conduct the recall elections.43
Moreover, the line item appropnation for the "Conduct and supervision of x x
x recall votes x x x" in the 2014 GAA is sufficient to fund recall elections.
There is no constitutional requirement that the budgetary.appropriation must
be loaded in "contingent funds." The Congress has plenary power to lodge
such appropriation in current operating expenditures. Going back to the
circumstances of the 2002 recall elections in Puerto Princesa, the 2002 GAA
provided for the following:
1. Special Audit. The appropnat1ons herein authorized for the
Commission for registration, plebiscite, referendum and election
purposes shall be used exclusively for the purpose for which these
are intended. Special Audit shall be undertaken by the Commission
on Audit (COA) on all expenses for printing jobs, materials and
paraphernalia to be used for registration, plebiscite, referendum and
election purposes. Copies of the COA report shall be furnished the
Legislature within one month after such audit.
 2. Augmentation of the Appropriations for Barangay Elections. The
appropriations authorized herein for the holding of barangay
elections may be augmented by COMELEC savings not exceeding
Three Hundred Million Pesos (₱300,000,000.00) if upon
implementation or subsequent evaluation, the needed resources for
the holding of said election is determined to be deficient.
3. Appropriations for Programs and Specific Activities. The amounts
herein appropriated for the programs of the agency shall be used
specifically for the following activities in the indicated amounts and
conditions: x x x.
General Provisions in the 2002 GAA
Sec. 51. Modification of Expenditure Components. Unless specifically
authorized in this Act, no change or modification shall be made in the
expenditure items authori:t.ed in this Act and other appropriations laws
unless in cases of augmentations from savings in appropriations as
authorized under Section 25(5), Article Vl of the 1987 Philippine Constitution.
53. Use of Savings. The President of the Philippines, the President of the
Senate, the Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, the Heads of Constitutional Commissions under Article
IX of the 1987 Constitution, the Ombudsman, and the Chairman of the
Commission on Human Rights are hereby authorized to augment any item in
this Act for their respective offices from savings in other items of their
respective appropriations. Sec. 54. Meaning of Savings and Augmentation.
Savings refer to portions or balances of any programmed appropriation in
this Act free from any obligation or encumbrance still available after the
completion or final discontinuance or abandonment of the work, activity or
purpose for which the appropriation is authorized, or arising from unpaid
compensation and related costs pertaining to vacant positions and leaves of
absence without pay.
Augmentation implies the existence in this Act of an item, project, activity, or
purpose with an appropriation which upon implementation or subsequent
evaluation of needed resources is determined to be deficient. In no case,
therefore, shall a non-existent item, project, activity, purpose or object of
expenditure be funded by augmentation from savings or by the use of
appropriations otherwise authorized in this Act.
Sec. 55. Priority in the Use of Savings. Jn the use of savings, priority shall be
given to the augmentation of the amounts set aside for compensation, year-
end bonus and cash gift, retirement gratuity, terminal leave benefit, old-age
pension of veterans and other personnel benefits authorized by law, and
those expenditure items authorized in agency Special Provisions and in
Section 16 and in other Sections of the General Provisions of this Act.
(Boldfacing and underscoring supplied)
We thus find unnecessary the COMELEC's protests regarding the difference
between "Projects" and "Programs" for their failure to allocate funds for any
recall process in 2014.
x x x The constitutional test for validity is not how itemized the appropriation
is down to the project level but whether the purpose of the appropriation is
specific enough to al low the President to exercise his lineitem veto power.
Section 23, Chapter 4, Book VI of the Administrative Code provides a stricter
requirement by mandating that there must be a corresponding appropriation
for each program and for each project. A project is a component of a
program which may have several projects. A program is equivalent to the
specific purpose of an appropriation. An item of appropriation for school-
building is a program, while the specific schools to be built, being the
identifiable outputs of the program, are the projects. The Constitution only
requires a corresponding appropriation for a specific purpose or program, not
for the sub-set of projects or activitics.44 (Emphasis supplied)
Considering that there is an existing line item appropriation for the conduct of
recall elections in the 2014 GAA, we see no reason why the COMELEC is
unable to perform its constitutional mandate to "enforce and administer all
laws and regulations relative to the conduct of x x x recall."45 Should the
funds appropriated in the 2014 GAA be deemed insufficient, then the
COMELEC Chairman may exercise his authority to augment such line item
appropriation from the COMELEC's existing savings, as this augmentation is
expressly authorized ]n the 2014 GAA.
WHEREFORE, the petition is GRANTED.
We PARTIALLY REVERSE and SET ASIDE Resolution No. 9864 insofar as
it directed the suspension of any and all proceedings in the recall petition.
We REVERSE and SET ASIDE Resolution No. 9882, and DIRECT the
Commission on Elections to immediately carry out the recall elections of
Mayor Lucilo R. Bayron of Puerto Princesa City, Palawan in accordance with
the provisions of the Local Government Code and COMELEC Resolution No.
7505.
This Decision is immediately executory.
SO ORDERED.
COMELEC is mandated to shoulder all expenses relative to recall elections. (Goh v. elections shall be borne by the COMELEC. There shall be included in the annual
Bayron, G.R. No. 212584, November 25, 2014) General Appropriations Act a contingency fund at the disposal of the COMELEC for
the conduct of recall election.
The 2014 General Appropriations Act provide the line item appropriation to allow the However the COMELEC does not have an appropriation or line item for contingency fund.
COMELEC to perform its constitutional mandate of conducting recall elections. There Hence COMELEC suspended the recall election until the budget controversy is resolved.
is no need for supplemental legislation to authorize the COMELEC to conduct recall
election for 2014. (Goh v. Bayron, G.R. No. 212584, November 25, 2014) Petitioner Respondent
GOH respectfully submits that the BAYRON filed a Motion to Dismiss the petition
The 1987 Constitution not only guaranteed the COMELEC’s fiscal autonomy, but also suspension of the recall election is a grave of Goh on the following grounds:
granted to its head, as authorized by law (as in the 2014 General Appropriations Act, abdication and wanton betrayal of the 1. The 2014 General Appropriations
to its Chairman), to augment items in its appropriations from its savings. (Goh v. Constitutional mandate of the COMELEC Act does not carry any specific
Bayron, G.R. No. 212584, November 25, 2014) and a grievous violation of the sovereign particular item for the conduct of
power of the people. recall elections in the city of Puerto
When the COMELEC receives a budgetary appropriation for its “Current Operating Princesa, province of Palawan or
Expenditures,” such appropriation includes expenditures to carry out its constitutional What the Resolution Nos. 9864 and 9882 elsewhere
functions, including the have given with one hand (the affirmation 2. Program and project have been
of the sufficiency of the Recall Petition), clearly differentiated by the
conduct of recall elections. (Goh v. Bayron, G.R. No. 212584, November 25, 2014) they have taken away with the other (the commission on elections;
funding issue, later claimed the issue of 3. The 2014 general appropriations act
lack funding). presents a special provision which
To be valid, an appropriation must indicate a specific amount and a specific purpose.
However, the purpose may be specific even if it is broken down into different related was absent in the previous general
sub-categories of the same appropriations act thereby further
limiting the COMELEC’s exercise of
augmentation
nature. The purpose of the appropriation is still specific – to fund elections, which
4. Budget can still be allocated by
naturally and logically include, even if not
congress through the enactment
and passage of a 2014 supplemental
expressly stated, not only regular but also special or recall elections. (Goh v. Bayron, budget or through the 2015 general
G.R. No. 212584, November 25, 2014) appropriations act
5. Government funds should not be
spent to support illegal and
premature institution of recall
Goh v. Bayron & COMELEC 6. Politics is a practical matter, and
G.R. No. 212584, November 25, 2014 political questions must be dealt
with realistically
DOCTRINE: COMELEC argued:
1. There’s no gad in suspending
Nature of the Petition: Certiorari + preliminary mandatory injunction assailing COMELEC proceedings relative to the recall
Resolutions. petition filed against respondent
mayor lucilo r. Bayron of Puerto
Brief Facts: Princesa City
Goh filed before the COMELEC a recall petition against Mayor Bayron 2. The recall elections being sought by
 due to loss of trust and confidence brought about by “gross violation of Anti-Graft petitioner may proceed only if a law
and Corrupt Practices Act, Code of Conduct and Ethical Standards for Public Officials is enacted appropriating funds
etc. as Mayor of Puerto Princesa City.” therefor
COMELEC found it sufficient in form and substance but suspended the funding of any recall 3. Petitioner is not entitled to the
election until the funding issue is resolved issuance of a writ of preliminary
 LGC Sec 75 Expenses Incident to Recall Elections. - All expenses incident to recall mandatory injunction
 EN BANC
[G.R. No. 140560. May 4, 2000]
JOVITO O. CLAUDIO, petitioner, vs. COMMISSION ON ELECTIONS,
DEPARTMENT OF BUDGET AND MANAGEMENT, COMMISSION ON
AUDIT and RICHARD ADVINCULA, respondents.
[G.R. No. 140714. May 4, 2000]
PREPARATORY RECALL ASSEMBLY OF PASAY CITY, herein
represented by its Chairman, RICHARD ADVINCULA, petitioner, vs. THE
COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET AND
MANAGEMENT, COMMISSION ON AUDIT and HON. JOVITO O.
CLAUDIO, respondents.
DECISION
MENDOZA, J.: Calrky
These are petitions arising from the proceedings initiated by the Preparatory
Recall Assembly of Pasay City (PRA) in the Commission on Elections in E.M.
No. 99-005 entitled IN THE MATTER OF THE PREPARATORY RECALL
ASSEMBLY RESOLUTION NO. 01, S-1999 ADOPTED ON 29 MAY 1999
FOR THE RECALL OF MAYOR JOVITO CLAUDIO OF PASAY CITY. G.R.
No. 140560 is a petition for certiorari and prohibition, seeking the nullification
of the resolution,[1] dated October 18, 1999, of the COMELEC giving due
course to the petition for the recall of petitioner Jovito O. Claudio as mayor of
Pasay City. On the other hand, G.R. No. 140714 is a petition
for mandamus filed by the PRA, represented by its Chair, Richard Advincula,
to compel the COMELEC to set the date for the holding of recall elections in
Pasay City pursuant to the aforecited resolution of the COMELEC.
The facts are as follows:
Jovito O. Claudio, petitioner in G.R. No. 140560, was the duly elected mayor
of Pasay City in the May 11, 1998 elections. He assumed office on July 1,
1998.
Sometime during the second week of May 1999, the chairs of several
barangays in Pasay City gathered to discuss the possibility of filing a petition
for recall against Mayor Claudio for loss of confidence. On May 19, 1999, at
the residence of barangay chair Benjamin Lim, Jr. in Barangay 11, Zone 4,
Pasay City, several barangay chairs formed an ad hoc committee for the
purpose of convening the PRA. Richard Advincula, private respondent in
G.R. No. 140560 and petitioner in G.R. No. 140714, was designated chair.
On May 29, 1999, 1,073 members of the PRA composed of barangay chairs,
kagawads, and sangguniang kabataan chairs of Pasay City, adopted
Resolution No. 01, S-1999, entitled RESOLUTION TO INITIATE THE
RECALL OF JOVITO O. CLAUDIO AS MAYOR OF PASAY CITY FOR
LOSS OF CONFIDENCE. In a letter dated June 29, 1999, Advincula, as
chair of the PRA, invited the Mayor, Vice-Mayor, Station Commander, and
thirteen (13) Councilors of Pasay City to witness the formal submission to the
Office of the Election Officer on July 2, 1999 of the petition for recall. Mesm
As scheduled, the petition for recall was filed on July 2, 1999, accompanied
by an affidavit of service of the petition on the Office of the City Mayor.
Pursuant to the rules of the COMELEC, copies of the petition were posted on
the bulletin boards of the local COMELEC office, the City Hall, the Police
Department, the public market at Libertad St. and Taft Avenue, and at the
entrance of the Sta. Clara Church on P. Burgos St., all in Pasay City.
Subsequently, a verification of the authenticity of the signatures on the
resolution was conducted by Ligaya Salayon, the election officer for Pasay
City designated by the COMELEC.
Oppositions to the petition were filed by petitioner Jovito O. Claudio, Rev.
Ronald Langub, and Roberto L. Angeles, alleging procedural and substantive
defects in the petition, to wit: (1) the signatures affixed to the resolution were
actually meant to show attendance at the PRA meeting; (2) most of the
signatories were only representatives of the parties concerned who were
sent there merely to observe the proceedings; (3) the convening of the PRA
took place within the one-year prohibited period; (4) the election case,[2] filed
by Wenceslao Trinidad in this Court, seeking the annulment of the
proclamation of petitioner Claudio as mayor of Pasay City, should first be
decided before recall proceedings against petitioner could be filed; and (5)
the recall resolution failed to obtain the majority of all the members of the
PRA, considering that 10 were actually double entries, 14 were not duly
accredited members of the barangays, 40 sangguniang kabataan officials
had withdrawn their support, and 60 barangay chairs executed affidavits of
retraction. Slx
In its resolution of October 18, 1999, the COMELEC granted the petition for
recall and dismissed the oppositions against it. On the issue of whether the
PRA was constituted by a majority of its members, the COMELEC held that
the 1,073 members who attended the May 29, 1999 meeting were more than
necessary to constitute the PRA, considering that its records showed the
total membership of the PRA was 1,790, while the statistics of the
Department of Interior and Local Government (DILG) showed that the total
membership of the PRA was 1,876. In either case, since only a majority is
required to constitute the PRA, clearly, a majority had been obtained in
support of the recall resolution. Based on the verification made by election
officer Ligaya Salayon, the COMELEC found the signatures of 958 members
of the PRA sufficient. On whether the pendency of the case questioning the
proclamation of petitioner was a prejudicial question which must first be
decided before any recall election could be held, the COMELEC ruled that it
was not and that petitioner was merely using the pendency of the case to
delay the recall proceedings. Finally, on whether the petition for recall
violated the bar on recall within one year from the elective official's
assumption of office, the COMELEC ruled in the negative, holding that recall
is a process which starts with the filing of the petition for recall. Since the
petition was filed on July 2, 1999, exactly one year and a day after petitioner
Claudio's assumption of office, it was held that the petition was filed on time.
Hence, these petitions. Oral arguments were held in these cases in Baguio
City on April 4, 2000, after which the Court, by the vote of 8 to 6 of its
members,[3] resolved to dismiss the petition in G.R. No. 140560 for lack of
showing that the COMELEC committed a grave abuse of discretion. On the
other hand, the Court unanimously dismissed the petition in G.R. No. 140714
on the ground that the issue raised therein had become moot and academic.
We now proceed to explain the grounds for our resolution.
In its Resolution No. 3121, dated March 9, 2000, the COMELEC set the date
of the recall elections in Pasay City on April 15, 2000. Consequently, the
petition for mandamus in G.R. No. 140714 to compel the COMELEC to fix a
date for the recall elections in Pasay City is no longer tenable. We are thus
left with only petitioner Claudio's action for certiorari and prohibition.
The bone of contention in this case is 74 of the Local Government Code
(LCG)[4] which provides: Scslx
Limitations on Recall. - (a) Any elective local official may be
the subject of a recall election only once during his term of
office for loss of confidence.
(b) No recall shall take place within one (1) year from the
date of the official's assumption to office or one (1) year
immediately preceding a regular local election.
As defined at the hearing of these cases on April 4, 2000, the issues are:
WHETHER, under Section 74 of the Local Government
Code of 1991 (R.A. No. 7160) ...
A. The word "recall" in paragraph (b) covers a process which
includes the convening of the Preparatory Recall Assembly
and its approval of the recall resolution.
B. The term "regular local election" in the last clause of
paragraph (b) includes the election period for that regular
election or simply the date of such election.
(1)
On Whether the Word "Recall" in
Paragraph (b) of 74 of the Local
Government Code Includes the
Convening of the Preparatory Recall
Assembly and the Filing by it of a Recall
Resolution
Petitioner contends that the term "recall" in 74(b) refers to a process, in
contrast to the term "recall election" found in 74(a), which obviously refers to
an election. He claims that "when several barangay chairmen met and
convened on May 19, 1999 and unanimously resolved to initiate the recall,
followed by the taking of votes by the PRA on May 29, 1999 for the purpose
of adopting a resolution to initiate the recall of Jovito Claudio as Mayor of
Pasay City for loss of confidence, the process of recall began" and, since
May 29, 1999 was less than a year after he had assumed office, the PRA
was illegally convened and all proceedings held thereafter, including the filing
of the recall petition on July 2, 1999, were null and void. Slxsc
The COMELEC, on the other hand, maintains that the process of recall starts
with the filing of the petition for recall and ends with the conduct of the recall
election, and that, since the petition for recall in this case was filed on July 2,
1999, exactly one year and a day after petitioner's assumption of office, the
recall was validly initiated outside the one-year prohibited period.
Both petitioner Claudio and the COMELEC thus agree that the term "recall"
as used in 74 refers to a process. They disagree only as to when the process
starts for purposes of the one-year limitation in paragraph (b) of 74.
We can agree that recall is a process which begins with the convening of the
preparatory, recall assembly or the gathering of the signatures at least 25%
of the registered voters of a local government unit, and then proceeds to the
filing of a recall resolution or petition with the COMELEC, the verification of
such resolution or petition, the fixing of the date of the recall election, and the
holding of the election on the scheduled date.[5] However, as used in
paragraph (b) of 74, "recall" refers to the election itself by means of which
voters decide whether they should retain their local official or elect his
replacement. Several reasons can be cited in support of this conclusion.
First, 74 deals with restrictions on the power of recall. It is in fact entitled
"Limitations on Recall." On the other hand, 69 provides that "the power of
recall ...shall be exercised by the registered voters of a local government unit
to which the local elective official belongs." Since the power vested on the
electorate is not the power to initiate recall proceedings [6] but the power to
elect an official into office, the limitations in 74 cannot be deemed to apply to
the entire recall proceedings. In other words, the term "recall" in paragraph
(b) refers only to the recall election, excluding the convening of the PRA and
the filing of a petition for recall with the COMELEC, or the gathering of the
signatures of at least 25 % of the voters for a petition for recall.
Thus, there may be several PRAs held (as in the case of Bataan Province in
1993) or petitions for recall filed with the COMELEC - there is no legal limit
on the number of times such processes may be resorted to. These are
merely preliminary steps for the purpose of initiating a recall. The limitations
in 74 apply only to the exercise of the power of recall which is vested in the
registered voters. It is this - and not merely, the preliminary steps required to
be taken to initiate a recall - which paragraph (b) of 74 seeks to limit by
providing that no recall shall take place within one year from the date of
assumption of office of an elective local official.
Indeed, this is the thrust of the ruling in Garcia v. COMELEC[7] where two
objections were raised against the legality of PRAs: (1) that even the power
to initiate recall proceedings is the sole prerogative of the electorate which
cannot be delegated to PRAs, and (2) that by vesting this power in a PRA,
the law in effect unconstitutionally authorizes it to shorten the term of office of
incumbent elective local officials. Both objections were dismissed on the
ground that the holding of a PRA is not the recall itself. With respect to the
first objection, it was held that it is the power to recall and not the power to
initiate recall that the Constitution gave to the people. With respect to the
second objection, it was held that a recall resolution "merely sets the stage
for the official concerned before the tribunal of the people so he can justify
why he should be allowed to continue in office. [But until] the people render
their sovereign judgment, the official concerned remains in office . . .
." Sdaadsc
If these preliminary proceedings do not produce a decision by the electorate
on whether the local official concerned continues to enjoy the confidence of
the people, then, the prohibition in paragraph (b) against the holding of a
recall, except one year after the official's assumption of office, cannot apply
to such proceedings.
The second reason why the term "recall" in paragraph (b) refers to recall
election is to be found in the purpose of the limitation itself. There are two
limitations in paragraph (b) on the holding of recalls: (1) that no recall shall
take place within one year from the date of assumption of office of the official
concerned, and (2) that no recall shall take place within one year immediately
preceding a regular local election.
The purpose of the first limitation is to provide a reasonable basis for judging
the performance of an elective local official. In the Bower case[8] cited by this
Court in Angobung v. COMELEC,[9] it was held that "The only logical reason
which we can ascribe for requiring the electors to wait one year
before petitioning for a recall election is to prevent premature action on their
part in voting to remove a newly elected official before having had sufficient
time to evaluate the soundness of his policies and decisions." The one-year
limitation was reckoned as of the filing of a petition for recall because the
Municipal Code involved in that case expressly provided that "no removal
petition shall be filed against any officer or until he has actually held office for
at least twelve months." But however the period of prohibition is determined,
the principle announced is that the purpose of the limitation is to provide a
reasonable basis for evaluating the performance of an elective local official.
Hence, in this case, as long as the election is held outside the one-year
period, the preliminary proceedings to initiate a recall can be held even
before the end of the first year in office of a local official.
It cannot be argued that to allow recall proceedings to be initiated before the
official concerned has been in office for one-year would be to allow him to be
judged without sufficient basis. As already stated, it is not the holding of PRA
nor the adoption of recall resolutions that produces a judgment on the
performance of the official concerned; it is the vote of the electorate in the
Election that does. Therefore, as long as the recall election is not held before
the official concerned has completed one year in office, he will not be judged
on his performance prematurely. Rtcspped
Third, to construe the term "recall" in paragraph (b) as including the
convening of the PRA for the purpose of discussing the performance in office
of elective local officials would be to unduly restrict the constitutional right of
speech and of assembly of its members. The people cannot just be asked on
the day of the election to decide on the performance of their officials. The
crystallization and formation of an informed public opinion takes time. To
hold, therefore, that the first limitation in paragraph (b) includes the holding of
assemblies for the exchange of ideas and opinions among citizens is to
unduly curtail one of the most cherished rights in a free society. Indeed, it is
wrong to assume that such assemblies will always eventuate in a recall
election. To the contrary, they may result in the expression of confidence in
the incumbent.
Our esteemed colleague Justice Puno says in his dissent that the purpose of
the one-year period in paragraph (b) is to provide the local official concerned
a "period of repose" during which "[his] attention should not be distracted by
any impediment, especially by disturbance due to political partisanship."
Unfortunately, the law cannot really provide for a period of honeymoon or
moratorium in politics. From the day an elective official assumes office, his
acts become subject to scrutiny and criticism, and it is not always easy to
determine when criticism of his performance is politically motivated and when
it is not. The only safeguard against the baneful and enervating effects of
partisan politics is the good sense and self restraint of the people and its
leaders against such shortcomings of our political system. A respite from
partisan politics may, have the incidental effect of providing respite from
partisanship, but that is not really the purpose of the limitation on recall under
the law. The limitation is only intended to provide a sufficient basis for
evaluating and judging the performance of an elected local official.
In any event, it is argued that the judgments of PRAs are not "as politically
unassailable as recalls initiated directly by the people." Justice Puno cites the
"embarrassing repudiation by the people of [Kaloocan City's] Preparatory
Recall Assembly" when, instead of ousting Mayor Rey Malonzo, they
reelected him.
Two points may be made against this argument.
One is that it is no disparagement of the PRA that in the ensuing election the
local official whose recall is sought is actually reelected. Laws converting
municipalities into cities and providing for the holding of plebiscites during
which the question of cityhood is submitted to the people for their approval
are not always approved by the people. Yet, no one can say that Congress is
not a good judge of the will of the voters in the locality. In the case of recall
elections in Kaloocan City, had it been shown that the PRA was resorted to
only because those behind the move to oust the incumbent mayor failed to
obtain the signatures of 25% of the voters of that city to a petition for his
recall, there may be some plausibility for the claim that PRAs are not as good
a gauge of the people's will as are the 25 % of the voters.
Indeed, recalls initiated directly by 25% of the registered voters of a local
government unit cannot be more representative of the sentiments of the
people than those initiated by PRAs whose members represent the entire
electorate in the local government unit. Voters who directly initiate recalls are
just as vulnerable to political maneuverings or manipulations as are those
composing PRAs. Korte
The other point regarding Justice Punos claim is that the question here is not
whether recalls initiated by 25% of the voters are better. The issue is whether
the one-year period of limitation in paragraph (b) includes the convening of
the PRA. Given that question, will convening the PRA outside this period
make it any more representative of the people, as the petition filed by 25 %
of the registered voters is claimed to be?
To sum up, the term "recall" in paragraph (b) refers to the recall election and
not to the preliminary proceedings to initiate recall -
1. Because 74 speaks of limitations on "recall" which, according to 69, is a
power which shall be exercised by the registered voters of a local
government unit. Since the voters do not exercise such right except in an
election, it is clear that the initiation of recall proceedings is not prohibited
within the one-year period provided in paragraph (b);
2. Because the purpose of the first limitation in paragraph (b) is to provide
voters a sufficient basis for judging an elective local official, and final judging
is not done until the day of the election; and
3. Because to construe the limitation in paragraph (b) as including the
initiation of recall proceedings would unduly curtail freedom of speech and of
assembly guaranteed in the Constitution.
As the recall election in Pasay City is set on April 15, 2000, more than one
year after petitioner assumed office as mayor of that city, we hold that there
is no bar to its holding on that date.
(2)
On Whether the Phrase "Regular Local
Election" in the Same Paragraph (b) of 74
of the Local Government Code includes
the Election Period for that Regular
Election or Simply the Date of Such
Election
Petitioner contends, however, that the date set by the COMELEC for the
recall election is within the second period of prohibition in paragraph (b). He
argues that the phrase "regular local elections" in paragraph (b) does not
only mean "the day of the regular local election" which, for the year 2001 is
May 14, but the election period as well, which is normally at least forty five
(45) days immediately before the day of the election. Hence, he contends
that beginning March 30, 2000, no recall election may be held. Sclaw
This contention is untenable.
The law is unambiguous in providing that "[n]o recall shall take place within .
. . one (1) year immediately preceding a regular local election." Had
Congress intended this limitation to refer to the campaign period, which
period is defined in the Omnibus Election Code,[10] it could have expressly
said so.
Moreover, petitioner's interpretation would severely limit the period during
which a recall election may be held. Actually, because no recall election may
be held until one year after the assumption of office of an elective local
official, presumably on June 30 following his election, the free period is only
the period from July 1 of the following year to about the middle of May of the
succeeding year. This is a period of only nine months and 15 days, more or
less. To construe the second limitation in paragraph (b) as including the
campaign period would reduce this period to eight months. Such an
interpretation must be rejected, because it would devitalize the right of recall
which is designed to make local government units" more responsive and
accountable." Sclex
Indeed, there is a distinction between election period and campaign period.
Under the Omnibus Election Code,[11] unless otherwise fixed by the
COMELEC, the election period commences ninety (90) days before the day
of the election and ends thirty (30) days thereafter. Thus, to follow petitioner's
interpretation that the second limitation in paragraph (b) includes the
"election period" would emasculate even more a vital right of the people.
To recapitulate the discussion in parts 1 and 2, 74 imposes limitations on the
holding of recall elections. First, paragraph (a) prohibits the holding of such
election more than once during the term of office of an elective local official.
Second, paragraph (b) prohibits the holding of such election within one year
from the date the official assumed office. And third, paragraph (b) prohibits
the holding of a recall election within one year immediately preceding a
regular local election. As succinctly stated in Paras v.
COMELEC,[12] "[p]aragraph (b) construed together with paragraph (a) merely
designates the period when such elective local official may be subject to
recall election, that is, during the second year of office."
(3)
On Whether the Recall RESOLUTION was
Signed by a Majority of the PRA and Duly
Verified
Petitioner alleges other grounds for seeking the annulment of the resolution
of the COMELEC ordering the holding of a recall election. He contends that a
majority of the signatures of the members of the PRA was not obtained
because 74 members did not really sign the recall resolution. According to
petitioner, the 74 merely signed their names on pages 94-104 of the
resolution to signify their attendance and not their concurrence. Petitioner
claims that this is shown by the word "Attendance" written by hand at the top
of the page on which the signatures of the 74 begin.
This contention has no basis. To be sure, this claim is being raised for the
first time in this case. It was not raised before the COMELEC, in which the
claim made by petitioner was that some of the names in the petition were
double entries, that some members had withdrawn their support for the
petition, and that Wenceslao Trinidad's pending election protest was a
prejudicial question which must first be resolved before the petition for recall
could be given due course. The order of the COMELEC embodying the
stipulations of the parties and defining the issues to be resolved does not
include the issue now being raised by petitioner. Xlaw
Although the word "Attendance" appears at the top of the page, it is apparent
that it was written by mistake because it was crossed out by two parallel lines
drawn across it. Apparently, it was mistaken for the attendance sheet which
is a separate document. It is absurd to believe that the 74 members of the
PRA who signed the recall resolution signified their attendance at the
meeting twice. It is more probable to believe that they signed pages 94-104
to signify their concurrence in the recall resolution of which the pages in
question are part.
The other point raised by petitioner is that the recall petition filed in the
COMELEC was not duly verified, because Atty. Nelson Ng, who notarized it,
is not commissioned as notary public for Pasay City but for Makati City. As in
the case of the first claim, this issue was not raised before the COMELEC
itself. It cannot, therefore, be raised now.
WHEREFORE, G.R. No. 140560 is DISMISSED for lack of merit, while the
petition in G.R. No. 140714 is DISMISSED for having been rendered moot
and academic.
SO ORDERED. MENDOZA, J
 SEPARATE AND DISSENTING OPINION
KAPUNAN, J.: Nexold
With utmost due respect, I am constrained to disagree with the main opinion that the
term "recall" under Section 74(b) of Republic Act No. 7160, otherwise known as the
Local Government Code, refers to the recall election alone Section 74 provide:
Sec. 74. Limitation on Recall.-
(a) Any elective official may be the subject of a
recall election only once during his term of office
for loss of confidence;
(b) No recall shall take place within one year from
the date of the official's assumption of office.
Mayor Claudio won the mayoralty race in Pasay City in the 11 May 1998 elections.
He assumed office on 1 July 1998.[1] Less than 10 months thereafter, or on 29 May
1999, the People's Recall Assembly (PRA) of Pasay City convened and passed a
resolution to initiate the recall of Mayor Claudio.[2] On 2 July 1999, a petition for the
recall of Mayor Claudio was filed with the Commission on Elections (COMELEC). [3] In
a Resolution, promulgated on 18 October 1999, rendered in E.M. No. 99-005 (RCL),
the COMELEC resolved to approve and give due course to the petition for recall. The
COMELEC, construing that the word "recall" only begins upon "the time of filing of the
recall petition in the Office of the Election Officer of Pasay City up to the date of recall
election,"[4] ruled that since the petition was filed on 2 July 1999, the same was
already outside the prohibited period of one (1) year after Mayor Claudio assumed his
office on 1 July 1998.[5] Hence, the present case where the majority found that the
COMELEC did not abuse its discretion in issuing the assailed resolution.
Contrary to the majority view, I humbly submit that "recall" under Section 74(b) is not
limited to the election itself, but, rather, it is a process which begins once the PRA
makes its first affirmative acts towards the recall of the elective local official
concerned, i.e. the convening of the PRA and the passing by the PRA of a recall
resolution during a session called for the said purpose, and culminates with the
holding of the recall election.
The majority opinion concedes that it "can agree that a process which begins with the
convening of the preparatory recall assembly on the gathering of the signatures at
least 25% of the registered voters of a local government unit." Yet, it maintains that
"recall" as used in paragraph (b) of Section 74 "refers to the election itself by means
of which the voters decide whether they should retain their local official or elect his
replacement."
The majority opines that the power of recall can be exercised solely by the electorate
and not by the PRA through "the filing of a petition for recall with the COMELEC, or
the gathering of the signatures of at least 25% of the voters for a petition for recall."
This is so since the majority equates the power of recall with the electorate's power to
replace or retain the local official concerned during the recall elections. In furtherance
of this premise, the majority concludes that since the "power vested on the electorate
is not the power to initiate the recall proceedings but the power to elect an official into
office, the limitations in 74 cannot be deemed to apply to the entire recall
proceedings." I beg to disagree. Manikx
Since our form of government is a representative democracy, it cannot be claimed
that the initiation of the recall process by the PRA is not an initiation by the people.
This was explained by the Court in the case of Garcia vs. Commission on
Elections,[6] wherein it was said:
Again, the contention cannot command our concurrence.
Petitioners have misconstrued the nature of the initiatory process of
recall by the PRAC. They have embraced the view that initiation by
the PRAC is not initiation by the people. This is a misimpression for
initiation by the PRAC is also initiation by the people, albeit done
indirectly through their representatives. It is not constitutionally
impermissible for the people to act through their elected
representatives. Nothing less than the paramount task of drafting
our Constitution is delegated by the people to their representatives,
elected either to act as a constitutional convention or as a
congressional constituent assembly. The initiation of a recall
process is a lesser act and there is no rhyme or reason why it
cannot be entrusted to and exercised by the elected
representatives of the People.[7]
It must be noted that in the above quotation, as well as in all the discussions in
the Garcia case, recall is always described and referred to as a process.
The Garcia case does not, either directly or impliedly, state that the term "recall" in
Section 74(b) is confined solely to the recall election alone. Garcia explains that recall
as a process which begins with the convening of the PRA coupled with the passing of
a recall resolution and culminating with the recall election itself. [8] It is the PRA
resolution which paves the way for the official sought to be recalled to appear before
the electorate so he can justify why he should be allowed to continue in
office.[9] Thereafter, to determine whether the elected official still retains the
confidence of the people, a recall election is held. Thus, the recall process may be
considered as composed of two distinct but continuous phases, namely: the initiatory
phase and the election phase. As such, for purposes of determining whether the
recall was instituted within the allowable period under Section 74(b), the reckoning
point should be the initiatory phase which is the time of convening and passing of the
recall resolution. This should be so since it is from this moment that the process of
recall comes into being. It is at this precise moment when the PRA, as
representatives of the electorate, concretizes its stand and makes an affirmative act
of its intent to recall the elected local official. Nonetheless, it is still up to the people to
affirm or reject the move to recall the incumbent official during the election called for
the purpose. Maniks
The underlying reason behind the time bar provisions, as pronounced by the Court in
Angobung vs. COMELEC,[10] is to guard against the abuse of the power of recall. In
so holding, the Court authoritatively cited the case of In Re Bower,[11] stating that "the
only logical reason which we can ascribe for requiring the electors to wait one year
before petitioning for a recall is to prevent premature action on their part in voting to
remove a newly elected official before having had sufficient time to evaluate the
soundness of his policies and decisions." The phrase "premature action" logically
refers to any activity geared towards removing the incumbent official without waiting
for sufficient time to elapse to evaluate his performance in office. The convening of
the PRA and the passing of the questioned recall resolution in this case were actions
or activities proscribed by law, rendering the entire recall process invalid. The term
"recall" under Section 74(b) being a process which begins with the convening of the
PRA and the passing of the recall resolution, such initiatory exercises within the
prohibited period tend to disrupt the workings of a local government unit and are
deleterious to its development and growth.
In a political culture like ours where a losing candidate does not easily concede defeat
as demonstrated by numerous election protests pending before our courts and in the
COMELEC, all that a disgruntled candidate has to do to undermine the mandate of
the victor is to court the other local officials in order to set the stage for the convening
of a PRA and the passage of a recall resolution. After this, all that needs to be done is
to wait for the lapse of the first time bar and, thereafter, file the petition for recall. In
the meantime, the incumbent official sought to be removed and his political
opponents engage in a full-scale election campaign which is divisive, destabilizing
and disruptive, with its pernicious effects taking their toll on good governance.
In this regard, Senator Aquilino Pimentel, the main author of the Local Government
Code of 1991, in his book entitled "The Local Government Code of 1991: The Key to
National Development," explained:
Recall resolutions or petitions may not be used whimsically. In
fact, they can be resorted to only once during the term of the
elective official sought to be recalled. And since there is a
prohibition against recalls within the first year of an officials term of
office, and within one year immediately preceding a regular local
election, the move to recall can only be done in the second
year of the three year term of local elective
officials.[12] Manikanx
anytime during his term and as often as they would like, because it is their right to do
so. An exercise of their right to peaceably assemble and exchange views about the
governance of the local official would not be violative of the limitations set forth in
Section 74(b). However, once notice is sent, during the prohibited period, stating that
the purpose of the meeting is to convene the PRA and to pass a recall resolution, and
the same is actually approved, then Section 74(b) is transgressed. In this instance,
the limitation of the electorate's freedom of speech and assembly is not violated since
the time bar provision is imposed by the legislature in the exercise of its police power.
The limitation in Section 74(b) is analogous to the prohibition under Section 80 of
Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, which
prohibits a person from engaging in any election campaign or partisan political activity
except during the campaign period.[13] The limitation on the freedom of speech and
assembly imposed by Section 80 has never been questioned as being
unconstitutional. Oldmiso
Finally, I do not find any logical reason to support the view that the recall process
should be counted only from the time of the filing of the recall resolution or petition
with the COMELEC. Although the filing of the petition for recall with the COMELEC is,
admittedly, an important component in the recall process, it, however, cannot be
considered as the starting point of the same. The filing of the petition, being merely a
consequential mechanical act, is just a next step in the process of recall after PRA's
acts of convening the recall assembly and passing the recall resolution. Once a
petition for recall is filed, the only role of the COMELEC is the verification of its
authenticity and genuineness. After such verification the COMELEC is mandated by
law to set the date of the recall election. Clearly, the role of the COMELEC in the
recall process under Section 70 of R.A. 7160 is merely ministerial in nature. Such
being the case, it cannot be correctly argued that the crucial moment in the recall
process is the actual filing of the petition with the COMELEC.
I vote, therefore, to grant the petition. KAPUNAN, J

It can readily be observed that Senator Pimentel used the phrase "move to recall" in
describing the activity which can only be undertaken during the freedom period. This
is significant because the use of the phrase "move to recall" is instructive of the
concept envisioned by the primary author of the law in providing for the limitations on
recall. It connotes a progressive course of action or a step-by-step process. As such,
the word "move," when used in conjunction with the word '"recall," can pertain to no
other than the entire recall process which begins with the convening of the PRA and
the passing of the recall resolution and ending with the recall election. It cannot, by
any stretch of imagination, be construed as referring to the election alone.

I cannot subscribe to the observation of the majority that to construe the limitation in
Section 74 (b) "as including the initiation of recall proceedings would unduly curtail
freedom of speech and of assembly guaranteed by the Constitution." The people can
assemble and discuss their opinions and grievances against the incumbent official, at

DISSENTING OPINION
PUNO, J.: Scmis
The cases at bar are one of first impression. At issue is the meaning of Section 74 (b)
of the Local Government Code which provides: "No recall shall take place within one
(1) year from the date of the official's assumption to office or one (1) year
immediately preceding a regular local election." Our interpretation of this provision is
significant for, to a large extent, it will determine the use or misuse of the right of
recall. The right of recall is part of the cutting edge of the sword of the sovereignty of
our people, and its exercise should be shielded from abuses.
I begin with the baseline proposition that the proper interpretation of Section 74 (b) of
the Local Government Code should depend on the edifying intent of our legislators.
With due respect to the majority, I wish to express my humble reading of the intent of
our lawmakers when they engrafted the people's right of recall in the corpus of our
laws. Our search should start with the Constitution which provides the matrix of our
rights. All our fundamental laws[1] set in stone the principle that "the Philippines is a
democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them." An important component of this
sovereign power is the right of the people to elect officials who will wield the powers
of government, i.e., the power to make laws and the power to execute laws. These
powers are enormous and in the wrong hands can wreak havoc to the people. Our
laws therefore regulate their exercise. Among others, they set minimum qualifications
for candidates to elective public office. They safeguard the integrity of the procedure
of electing these candidates. They also established an independent COMELEC to
enhance the laboratory conditions under which elections must be conducted.
Over the years, however, the country experienced the defilement of these ideals. The
wrong officials were able to win the scepters of power, the sanctity of our election
process has been breached, and unscrupulous politicians perpetuated themselves in
public office. The authoritarian regime that prolonged its reign from 1972 to 1986
demonstrated the need to address these problems with greater resolve. Various
schemes were installed in the 1987 Constitution and our statutes. Among them are
the provisions limiting terms of offices, banning political dynasties, strengthening the
power and independence of the COMELEC, sharpening the accountability of public
officials and institutionalizing the power of the people to recall their elected
officials. Missc
In the ground breaking case of Garcia v. COMELEC[2] we traced the metamorphosis
of the people's right of recall from its diaper days. In Angobung v. COMELEC [3] we
articulated the rationale of the right of recall, viz.:
"x x x While recall was intended to be an effective and speedy
remedy to remove an official who is not giving satisfaction to the
electorate regardless of whether or not he is discharging his full
duty to the best of his ability and as his conscience dictates, it is a
power granted to the people who, in concert, desire to change their
leaders for reasons only they, as a collective, can justify. In other
words, recall must be pursued by the people, not just by one
disgruntled loser in the election or a small percentage of
disenchanted electors. Otherwise, its purpose as a direct remedy of
the people shall be defeated by the ill motives of a few among them
whose selfish resort to recall would destabilize the community and
seriously disrupt the running of government.
A scrutiny of the rationale underlying the time bar provisions and
the percentage of minimum voter requirement in America recall
statutes, unmistakably reveals the vigilance of lawmakers
against the abuse of the power of recall. For instance, the
Supreme Court of Illinois held in the case of In Re Bower that:
'[t]he only logical reason which we can
ascribe for requiring the electors to wait one
year before petitioning for a recall election is
to prevent premature action on their part in
voting to remove a newly elected official
before having had sufficient time to evaluate
the soundness of his political policies and
decisions. We view the statutory provision
requiring the number of petition signers to equal
at least 45 % of the total votes cast in the last
general election for mayor as a further attempt
to insure that an official will not have to
defend his policies against frivolous attacks
launched by a small percentage of
disenchanted electors.
Along the same lines, the Supreme Court of Colorado held in the
case of Bernzen v. City of Boulder that: Misspped
'[t]he framers, by requiring that a recall petition
contain the signatures of at least 25% of all votes
cast in the last election for all candidates for the
position which the person sought to be recalled
occupies, assured that a recall election will not
be held in response to the wishes of a small
and unrepresentative minority. However, once
at least 25% of the electorate have expressed
their dissatisfaction, the constitution reserves the
recall power to the will of the electorate.'
And in the case of Wallace v. Tripp, the Supreme Court of
Michigan echoed the foregoing posturings in this wise:
'Much of what has been said to justify a limit upon
recall clearly not provided or contemplated by the
 Constitution has revealed fears about an
irresponsible electorate x x x. A much cited
Nebraska case pertaining to a Nebraska recall
statute provides some answers which are equally
applicable to the Michigan constitutional right of
recall:
'x x x Doubtless the provision
requiring 30 per cent of the
electors to sign the petition
before the council [is[
compelled to act was designed
to avoid such a
contingency. The Legislature
apparently assumed that
nearly one-third of the
electorate would not entail
upon the taxpayers the cost
of an election unless the
charges made approved
themselves to their
understanding and they were
seriously dissatisfied with
the services of the
incumbent of the office."
In fine, democratic experience, here and abroad, shows that the right of recall is a
double-edged sword. Rightly used, it can promote the greater good. Wrongly used, it
can result in greater evil. There are recalls as pointed out in Angobung that should
be avoided: (1) recalls borne by the ill motive of a few; (2) recalls that disrupt the
smooth running of government; and (3) recalls that destabilize the local government
unit. The standard mechanisms in recall statutes to avoid these evils are: (1) the
setting of a waiting period before a petition for recall can be initiated, and (2) the fixing
of a minimum percentage of voters signatures to kickstart a petition for recall. As
clearly explained in Bowers, the reason for fixing a waiting period is "to prevent
premature action on their part in voting to remove a newly elected official before
having had sufficient time to evaluate the soundness of his political policies
and decisions." On the other hand, the reason for requiring a minimum number of
voters signatures is "to insure that an official will not have to defend his policies
against frivolous attacks launched by a small percentage of disenchanted electors."
It will further avoid expenditure of public funds for frivolous elections. Spped
I like to focus on the one-year waiting period provided by Section 74 (b) which is the
bedrock issue in the cases at bar. Beyond debate, the ideal interpretation of the
waiting period must bring about this pristine purpose - - - to give the voters
a sound basis for their decision to recall or not to recall an official whom they have
elected just a year ago. That sound basis cannot exist in a vacuum. "Sound basis"
requires affording the official concerned a fair and reasonable opportunity to
accomplish his program for the people. By no means will there be a reasonable
opportunity if from Day One after assumption of office, the process of recall can
already be initiated against said official. For it cannot be gainsaid that the more
disquieting and destabilizing part of recall is its initiation more than the recall election
itself. It is in the too early initiatory process where the baseless criticisms and
falsehoods of a few are foisted on the many. Premature initiatives to recall an official
are resisted with stronger vim and venom. The reasons are obvious to those whose
political innocence has long been slain. The incumbent would not like to lose power
just recently won. The challenger, often a loser in the previous election, would not
want to lose a second time. To allow early recall initiative is to encourage divisive,
expensive, wasteful politics. It will also put a premium on the politics of compromise -
- - the politics where public interest always comes out second best.
With due respect, the interpretation made by the majority of Section 74 (b) of the
Local Government Code, which will countenance recall initiatives right on Day
One after an official starts his term of office, will breed these political evils. To
be sure, the interpretation is based on a narrow rationale and cannot inspire assent. It
starts from the premise that recall is a power given to registered voters and "since
the voters do not exercise such right except in an election, it is clear that
the initiation of recall proceedings is not prohibited within the one-year period"
provided by law. The reasoning is based on the misleading perception that
the only participation of the people in recall is on election day when they cast their
vote electing or rejecting an incumbent. But the role of the people in recall is not
limited to being the judge on election day. In truth, the people participate in the
initiation of the recall process. There are two (2) kinds of recall - - - recall initiated
directly by the people and recall initiated by the people thru the Preparatory Recall
Assembly (PRA). In recall initiated by the people, it is self-evident that the people are
involved from beginning to the end of the process. But nothing less is true in recall
initiated by the PRA. In Garcia,[4] we scoured the history of recall and we held:
"[p]etitioners have misconstrued the nature of the initiatory process of recall by the
PRAC. They have embraced the view that initiation by the PRAC is not initiation by
the people. This is a misimpression for initiation by the PRAC is also initiation
by the people, albeit done indirectly through their representatives." We further
ruled that "the members of the PRAC are in the PRAC not in representation of
their political parties but as representatives of the people."[5] Jospped
There is another reason why I do not share the majority ruling that the one-year
waiting period is a limitation on the right of the people to judge an incumbent on
election day itself but not a limitation on their right to initiate the recall process. I
submit that the rationale for fixing the election day one year after assumption of
office is different from the rationale for prohibiting premature recall initiative. The
rationale of the first is for the benefit of the people, to give them sufficient time to
assess intelligently the performance of an incumbent. The rationale of the second is
for the benefit of the incumbent, to give him a fair chance to govern well, to serve
the people minus the unnecessary distractions from the itch of too much politics. The
ruling of the majority recognizes the rationale of the first but not the rationale of the
second. Its ruling that sanctions too early a recall initiative, and worse, that allows
endless recall initiatives will deprive an incumbent a fair opportunity to prove himself
thru the politics of performance.
The majority also holds that "to construe the limitation in paragraph (b) as including
the initiation of recall proceedings would unduly curtail freedom of speech and
assembly." Again, I beg to disagree. A dredging even of the subterranean meanings
of freedom of speech and assembly will not yield this result. It is one thing to
postulate that during the one-year waiting period the people cannot legally start a
recall process. It is entirely non sequitur to add that during the said period, the
people's freedom of speech and freedom of assembly are suspended. These rights
are in no way restricted for critical speeches during the one-year waiting
period can serve as valuable inputs in deciding after the said period whether to
initiate the recall process. They will assume more importance in the recall election
date itself. To stress again, what the law deems impermissible is formally starting the
recall process right after Day One of an incumbent's term of office for the purpose of
ending his incumbency, an act bereft of any utility. Sppedjo
In my Preliminary Dissenting Opinion, I purveyed the view that the one-year waiting
period is a period of repose, of respite from divisive politics in order to give whoever is
the sovereign choice of the people a fair chance to succeed in public service.
Rejecting this view, the majority holds that "unfortunately, the law cannot really
provide for a period of honeymoon or moratorium in politics." With due respect, the
ruling betrays historical amnesia. By no means is the one-year waiting period anew,
startling legal mechanism. This legal mechanism has long been installed to
regulate our labor-management relations, a volatile relationship, then and now.
One of the areas of concern in labor-management relations relates to the choice of
employee representative who shall bargain with the employer on the terms and
conditions of employment. The choice of the representative is determined in a
certification election, a democratic exercise often forcefully contested by unions for at
stake is enormous power, both political and economic. In the infant years of our
labor-management relations, these representatives were the objects of frequent
change thru repeated petitions for new certification elections. These repeated
petitions for certification elections weakened employee representatives and resulted
in instability in labor-management relations. The instability had a debilitating effect on
the economy. As a remedial measure, the Industrial Peace Act insulated the term
of the employee representative from change for one year. This is known as the
certification year rule pursuant to which no petition for certification election can be
ordered in the same bargaining unit more often than once in twelve months. [6] Hence,
for one year, the employee representative is shielded from any initiative calling for a
certification election to change representative. This progressive mechanism is still
contained in Article 231 of our Labor Code. To jog our memory, this legal mechanism
was taken from the Wagner Act[7] of the United States which had a provision that no
election can be directed in any bargaining unit or in any subdivision, where in the
preceding 12-months period, a valid election has been held. This 12-month ban on
certification election of the Wagner Act has never been challenged as violative of
freedom of speech and of assembly of members of minority unions who wish to be
elected as employee bargaining representative. Let us not miss the reason for the
twelve-month ban. Authorities in labor law like Professor Forkosch emphasize that
the "concepts of political democracy were assimilated in these representation
elections in labor law."[8] Needless to state, our own laws and derivative foreign
laws repudiate the majority ruling that "x x x the law cannot really provide for a period
of honeymoon or moratorium in politics... The only safeguard against the baneful . . .
effects of partisan politics is the good sense and self restraint of the people ...."
I do not have any competing vision to offer against the majority on the need to hike
the efficacy of the power of our people to recall elected officials who have lost their
confidence. After all, our EDSA experience has taught us that it is the people and the
people alone who can end malgovernment when all else fail. Recall is a powerful
weapon given to our people but, like any power, it can be abused. For this reason, the
legislature carefully defined its limitations for its misuse can bring about the disuse of
a valuable means to terminate the misrule of misfits in government. Our lawmakers
know that the paradox of power is that to be effective it must be restrained from
running riot. Section 74 of the Local Government Code spelled out these restraints.
Section 74 (a) limits the number of times an official can be subjected to recall during
his term of office to only one time. Section 74 (b) limits the periods when the power
can be exercised. It sets two periods: the first, sets the beginning, i.e., one year after
an officials' assumption of office; the second, sets the end, i.e., one year immediately
preceding a regular election. These limitations should be strictly followed considering
the short 3-year term of office of local officials. Miso
It is in this light that the Court should interpret Section 74. Its interpretation should
strengthen the right of recall and the best way to do this is to interpret it to prevent its
misuse. By way of summation, I respectfully submit that by holding that recall
initiatives can start right after Day One of an official's assumption to office, the
majority failed to recognize the need for stability of a public office. By holding that
these initiatives can be undertaken not once, not twice but endlessly within one year
after an official's assumption to office, the majority exposed our people to an
overdose of politics. By holding that recall initiatives can be done prematurely, the
majority forgot that such initiatives are meaningful only if they are used to adjudge an
official's performance in office. By holding that recall initiatives can be done even
without giving an official a fair chance to serve the people, the majority has induced
incumbents to play the politics of compromise instead of the politics of performance.
By holding that recall initiatives can be done at any one's caprice, the majority has
cast a blind eye on the expenses that accompany such exercise. These expenses
have to be repaid later, an undeniable cause of cronyism and corruption in
government.
The bottomline is that our law intends recall as a mechanism of good government. It
can never fulfill that intent if we allow its use to foment too much politics. We need not
be adepts in the alleyways of politics to say that too much politics is the root of a lot of
evils in our country. Our 1987 Constitution sought to check this bad political
cholesterol plaguing our government. Any attempt to restore this fat should draw
more than a phlegmatic posture.
I vote to grant the petition. PUNO
 JOVITO CLAUDIO V. COMELEC
G.R. No. 140560; May 4, 2000;
J. Mendoza; En Banc decision
NATURE: Consolidation of 2 petitions:
1.) The Petition for Certiorari and Prohibition against COMELEC filed by
Jovito Claudio, et. al.
DISPOSITION: Dismissed, there is no grave abuse of discretion on the
part of COMELEC
2.) The Petition for Mandamus to compel COMELEC to fix a date for the recall
elections
DISPOSITION: Dismissed, moot and academic because as of March 9,
2000, COMELEC already set the date of the recall elections on April 15,
2000.
FACTS: Jovito Claudio was the duly elected mayor of Pasay City in the May
11, 1998 elections.
On May 19, 1999, several barangay chairs formed an ad hoc committee for
the purpose of convening the PRA against Mayor Claudio on the ground of
loss of confidence.
Richard Advincula was designated chair.
The members of the PRA adopted Resolution No. 01, S-1999, initiating
Claudio’s recall.
The petition for recall was filed on the Office of the City Mayor.
Oppositions to the petition were filed by Jovito Claudio, Rev. Ronald Langub,
and Roberto L. Angeles, alleging procedural and substantive defects in the
petition, to wit:
(1) the signatures affixed to the resolution were actually meant to show
attendance at the PRA meeting;
(2) most of the signatories were only representatives of the parties concerned
who were sent there merely to observe the proceedings;
1 LGC
SECTION 74: LIMITATIONS ON RECALL – (a.) Any elective local official may be the subject of a
recall election only once during his term of office for loss of condifence.
(b.) No recall shall take place within one (1) year from the date of the official’s assumption to office
or one (1) year immediately preceding a regular local election.
2 LGC
(3) the convening of the PRA took place within the one-year prohibited period;
(4) the election case, filed by Wenceslao Trinidad in this Court, seeking the
annulment of the proclamation of petitioner Claudio as mayor of Pasay
City, should first be decided before recall proceedings against petitioner
could be filed; and
(5) the recall resolution failed to obtain the majority of all the members of the
PRA, considering that 10 were actually double entries, were not duly
accredited members of the barangays, 40 sangguniang kabataan officials
had withdrawn their support, and 60 barangay chairs executed affidavits
of retraction.
The COMELEC granted the petition and dismissed the opposition.
(1) 1,073 members who attended the meeting is clearly a majority of the total
membership 1,790 in COMELEC records; 1,876 in DILG records;
(2) 958 signatures were verified;
(3) recall is a process which starts with the filing of the petition for recall, which
was filed on July 2, 1999, exactly 1 year and 1 day after Claudio’s
assumption of office, i.e. filed on time.
ISSUE 1: When does the process of "Recall" start for purposes of the one year
limitation in in Paragraph (b) of §741 of the Local Government Code?
HELD 1: The term "recall" in paragraph (b) refers only to the recall election,
excluding the convening of the PRA and the filing of a petition for recall with
the COMELEC, or the gathering of the signatures of at least 25 % of the
voters for a petition for recall.
RATIO 1: We can agree that recall is a process which begins with the
convening of the preparatory recall assembly or the gathering of the signatures
at least 25% of the registered voters of a local government unit, and then
proceeds to the filing of a recall resolution or petition with the COMELEC, the
verification of such resolution or petition, the fixing of the date of the recall
election, and the holding of the election on the scheduled date.2
As used in paragraph (b) of § 74, "recall" refers to the election itself by means
of which voters decide whether they should retain their local official or elect his
replacement.
Several reasons can be cited in support of this conclusion.
SECTION 70: INITIATION OF THE RECALL PROCESS – (a.) Recall may be initiated by a
preparatory recall assembly or by the registered voters of the local government unit to which the
local elective official subject to
(b.) There shall be a PRA in every province, city, district, and municipality which shall be composed
of the ff.:
xxx

First, § 74 deals with restrictions on the power of recall. It is in fact entitled
"Limitations on Recall."
On the other hand, §69 provides that "the power of recall ...shall be exercised
by the registered voters of a local government unit to which the local elective
official belongs."
Since the power vested on the electorate is not the power to initiate recall
proceedings but the power to elect an official into office, the limitations in §74
cannot be deemed to apply to the entire recall proceedings.
The limitations in §74 apply only to the exercise of the power of recall which
is vested in the registered voters.
It is this - and not merely, the preliminary steps required to be taken to initiate
a recall - which paragraph (b) of §74 seeks to limit by providing that no recall
shall take place within one year from the date of assumption of office of an
elective local official.
The second reason why the term "recall" in paragraph (b) refers to recall
election is to be found in the purpose of the limitation itself.
There are two limitations in paragraph (b) on the holding of recalls:
(1) that no recall shall take place within one year from the date of assumption
of office of the official concerned, and
(2) that no recall shall take place within one year immediately preceding a
regular local election.
The purpose of the first limitation is to provide a reasonable basis for judging
the performance of an elective official.
In the Bower case cited in Angobung V. COMELEC: "The only logical reason
which we can ascribe for requiring the electors to wait one year before
petitioning for a recall election is to prevent premature action on their part in
voting to remove a newly elected official before having had sufficient time to
evaluate the soundness of his policies and decisions."
The one-year limitation was reckoned as of the filing of a petition for recall
because the Municipal Code involved in that case expressly provided that "no
removal petition shall be filed against any officer or until he has actually held
office for at least twelve months."
But however the period of prohibition is determined, the principle announced
is that the purpose of the limitation is to provide a reasonable basis for
evaluating the performance of an elective local official.
Hence, in this case, as long as the election is held outside the one-year period,
the preliminary proceedings to initiate a recall can be held even before the end
of the first year in office of a local official.
Third, to construe the term "recall" in paragraph (b) as including the convening
of the PRA for the purpose of discussing the performance in office of elective
local officials would be to unduly restrict the constitutional right of speech and
of assembly of its members.
The people cannot just be asked on the day of the election to decide on the
performance of their officials.
The crystallization and formation of an informed public opinion takes time.
To hold, therefore, that the first limitation in paragraph (b) includes the holding
of assemblies for the exchange of ideas and opinions among citizens is to
unduly curtail one of the most cherished rights in a free society.
Indeed, it is wrong to assume that such assemblies will always eventuate in a
recall election.
To the contrary, they may result in the expression of confidence in the
incumbent.
As the recall election in Pasay City is set on April 15, 2000, more than one
year after petitioner assumed office as mayor of that city, we hold that there is
no bar to its holding on that date.
ISSUE 2: WON the Phrase "Regular Local Election" in the Same Paragraph
(b) of §74 of the LGC includes the Election Period for that Regular Election or
Simply the Date of Such Election
i.e. Whether April 15, 2000 falls within the second period of prohibition that "[n)
o recall shall take place within . . . one (1) year immediately preceding a regular
local election."
HELD 2: No.
The law does not include the campaign period in counting the 1 year.
RATIO 2: Had Congress intended this limitation to refer to the campaign
period, which period is defined in the Omnibus Election Code, it could have
expressly said so.
Moreover, petitioner's interpretation would severely limit the period during
which a recall election may be held.
Actually, because no recall election may be held until one year after the
assumption of office of an elective local official, presumably on June 30
following his election, the free period is only the period from July 1 of the
following year to about the middle of May of the succeeding year.
This is a period of only nine months and 15 days, more or less.
To construe the second limitation in paragraph (b) as including the campaign
period would reduce this period to eight months.
Such an interpretation must be rejected, because it would devitalize the right
of recall which is designed to make local government units" more responsive
and accountable."
Indeed, there is a distinction between election period and campaign period.
Under the Omnibus Election Code, unless otherwise fixed by the COMELEC,
the election period commences ninety (90) days before the day of the election
and ends thirty (30) days thereafter.
Thus, to follow petitioner's interpretation that the second limitation in paragraph
(b) includes the "election period" would emasculate even more a vital right of
the people.
As succinctly stated in Paras v. COMELEC, "paragraph (b) construed together
with paragraph (a) merely designates the period when such elective local
official may be subject to recall election, that is, during the second year of
office."
ISSUE 3: WON the Recall RESOLUTION was Signed by a Majority of the PRA
and Duly Verified
HELD 3: Yes
RATIO 3: Petitioner alleges other grounds for seeking the annulment of
the resolution of the COMELEC ordering the holding of a recall election.
He contends that a majority of the signatures of the members of the PRA was
not obtained because 74 members did not really sign the recall resolution.
According to petitioner, the 74 merely signed their names on pages 94-104 of
the resolution to signify their attendance and not their concurrence.
This contention has no basis. To be sure, this claim is being raised for the first
time in this case. It was not raised before the COMELEC.
Although the word "Attendance" appears at the top of the page, it is apparent
that it was written by mistake because it was crossed out by two parallel lines
drawn across it.
It is absurd to believe that the 74 members of the PRA who signed the recall
resolution signified their attendance at the meeting twice.
It is more probable to believe that they signed pages 94-104 to signify their
concurrence in the recall resolution of which the pages in question are part.
The other point raised by petitioner is that the recall petition filed in the
COMELEC was not duly verified, because Atty. Nelson Ng, who notarized it,
is not commissioned as notary public for Pasay City but for Makati City.
As in the case of the first claim, this issue was not raised before the COMELEC
itself.
It cannot, therefore, be raised now.
NOTE: J. Puno dissented, the one year period should be a period of peace
to enable the public official on his first year of service to serve without his
attention diverted;
SC held: “the law doesn’t provide for a honeymoon or moratorium on
politics”
Claudio v. COMELEC
Topic: Recall
Ponente: V.V. Mendoza, J.
Date: 4 May 2000
DOCTRINE: To what doctrine is the case related and how is it explained. Make sure that this is related to the topic.
QUICK FACTS: One to two liner facts.
FACTS:
LGU concerned: Pasay City
Position of person/s involved: Mayor of Pasay City
Contested Law/Ordinance:
Jovito O. Claudio (Claudio) was duly elected mayor of Pasay City in the May 11, 1998 elections. Sometime in
May 1999, the chairs of several barangays in Pasay City gathered for the purpose of convening the Preparatory
Recall Assembly (PRA) and to file a petition for recall against Mayor Claudio for loss of confidence.
On May 29, 1999, 1,073 members of the PRA composed of barangay chairs, kagawads, and sangguniang
kabataan chairs of Pasay City, adopted Resolution No. 01, S-1999 recalling Claudio as mayor for loss of
confidence. The petition for recall was filed on July 2, 1999 and copies of the petition were in public areas
throughout the City.
Claudio filed an opposition against the petition alleging, among others, that the petition for recall was filed
within one year from his assumption into office and therefore prohibited. He argued that the PRA was convened
within the 1 year prohibited period as provided by Section 74 of the Local Government Code. The COMELEC,
however, granted the petition for recall ruling that recall is a process which starts with the filing of the petition
for recall and since the petition was filed exactly one year and a day after Claudio's assumption of office, the
petition was filed on time. Thereafter, COMELEC set the date of the recall elections on April 15, 2000. Hence,
this petition.
ISSUE: WoN the petition for recall was filed within the proper period provided for by Section 74 of the
Local Government Code
HELD: Yes. SC Affirmed COMELEC
The limitations in Section 74 apply to the exercise of the power of recall (i.e. the recall election itself) which is
vested with the registered voters of the LGU. It does not apply to the preparatory processes to such exercise
of recall such as the proceedings of the PRA.
RATIO:
Recall as used in Section 74 refers to the election itself
We can agree that recall is a process which begins with the convening of the preparatory, recall assembly or the
gathering of the signatures at least 25% of the registered voters of a local government unit, and then proceeds
to the filing of a recall resolution or petition with the COMELEC, the verification of such resolution or petition,
the fixing of the date of the recall election, and the holding of the election on the scheduled date. However, as
used in paragraph (b) of § 74, "recall" refers to the election itself by means of which voters decide
whether they should retain their local official or elect his replacement.
Section 69 of the Local Government Code provides that "the power of recall ...shall be exercised by the
registered voters of a local government unit to which the local elective official belongs." Since the power vested
on the electorate is not the power to initiate recall proceedings but the power to elect an official into office, the
limitations in §74 cannot be deemed to apply to the entire recall proceedings. In other words, the term "recall"
in paragraph (b) refers only to the recall election, excluding the convening of the PRA and the filing of a petition
for recall with the COMELEC, or the gathering of the signatures of at least 25 % of the voters for a petition
for recall.
Anything steps prior to recall election itself are merely preliminary steps for the purpose of initiating a recall.
The limitations in §74 apply only to the exercise of the power of recall which is vested in the registered voters.
It is this - and not merely, the preliminary steps required to be taken to initiate a recall - which paragraph (b) of
§74 seeks to limit by providing that no recall shall take place within one year from the date of assumption of
office of an elective local official.
The proceedings of the PRA do not constitute the exercise of recall
It is the power to recall and not the power to initiate recall that the Constitution gave to the people. A recall
resolution "merely sets the stage for the official concerned before the tribunal of the people so he can justify
why he should be allowed to continue in office. [But until] the people render their sovereign judgment, the
official concerned remains in office. Thus, the preliminary proceedings of the PRA do not produce a decision
by the electorate on whether the local official concerned continues to enjoy the confidence of the people, then,
the prohibition in paragraph (b) against the holding of a recall, except one year after the official's assumption of
office, cannot apply to such proceedings.
Purpose of the one year prohibitory period against the exercise of recall
The purpose of the first limitation is to provide a reasonable basis for judging the performance of an elective
local official. Hence, in this case, as long as the election is held outside the one-year period, the preliminary
proceedings to initiate a recall can be held even before the end of the first year in office of a local official.
Including the convening of the PRA as part of recall restricts right of speech and assembly
Third, to construe the term "recall" in paragraph (b) as including the convening of the PRA for the purpose of
discussing the performance in office of elective local officials would be to unduly restrict the constitutional right
of speech and of assembly of its members. The people cannot just be asked on the day of the election to decide
on the performance of their officials. The crystallization and formation of an informed public opinion takes
time. To hold, therefore, that the first limitation in paragraph (b) includes the holding of assemblies for the
exchange of ideas and opinions among citizens is to unduly curtail one of the most cherished rights in a free
society. Indeed, it is wrong to assume that such assemblies will always eventuate in a recall election. To the
contrary, they may result in the expression of confidence in the incumbent.
The phrase regular local election does not include the campaign period
Claudio contends that the date April 15, 2000 also falls within the second prohibition under Section 74 of the
Local Government Code arguing that the phrase "regular local elections" in paragraph (b) does not only mean
"the day of the regular local election" which, for the year 2001 is May 14, but the election period as well. Hence,
he contends that beginning March 30, 2000, no recall election may be held.
The contention is untenable. First there is nothing in the law that shows the campaign period is included for
purposes of computing the prohibitory period. Moreover, petitioner's interpretation would severely limit the
period during which a recall election may be held. Actually, because no recall election may be held until one year
after the assumption of office of an elective local official, presumably on June 30 following his election, the free
period is only the period from July 1 of the following year to about the middle of May of the succeeding year.
This is a period of only nine months and 15 days, more or less. To construe the second limitation in paragraph
(b) as including the campaign period would reduce this period to eight months. Such an interpretation must be
rejected, because it would devitalize the right of recall which is designed to make local government units" more
responsive and accountable."
G.R. No. 111511 October 5, 1993
ENRIQUE T. GARCIA, ET AL., petitioners,
vs.
COMMISSION ON ELECTIONS and LUCILA PAYUMO, ET
AL., respondents.
Alfonso M. Cruz Law Offices for petitioners.
Romulo C. Felizmeña, Crisostomo Banzon and Horacio Apostol for private
respondents.
PUNO, J.:
The EDSA revolution of 1986 restored the reality that the people's might is
not a myth. The 1987 Constitution then included people power as an article
of faith and Congress was mandated to p ass laws for its effective exercise.
The Local Government Code of 1991 was enacted providing for two (2)
modes of initiating the recall from office of local elective officials who appear
to have lost the confidence of the electorate. One of these modes is recall
through the initiative of a preparatory recall assembly. In the case at bench,
petitioners assail this mode of initiatory recall as unconstitutional. The
challenge cannot succeed.
We shall first unfurl the facts.
Petitioner Enrique T. Garcia was elected governor of the province of Bataan
in the May 11, 1992 elections. In the early evening of July 1993, some
mayors, vice-mayors and members of the Sangguniang Bayan of the twelve
(12) municipalities of the province met at the National Power Corporation
compound in Bagac, Bataan. At about 12:30 A.M of the following day, July 2,
1993, they proceeded to the Bagac town plaza where they constituted
themselves into a Preparatory Recall Assembly to initiate the recall election
of petitioner Garcia. The mayor of Mariveles, Honorable Oscar, de los Reyes,
and the mayor of Dinalupihan, the Honorable Lucila Payumo, were chosen
as Presiding Officer and Secretary of the Assembly, respectively. Thereafter,
the Vice-Mayor of Limay, the Honorable Ruben Roque, was recognized and
he moved that a resolution be passed for the recall of the petitioner on the
ground of "loss of confidence."1 The motion was "unanimously
seconded."2 The resolution states:
RESOLUTION NO. 1
Whereas, the majority of all the members of the Preparatory
Recall Assembly in the Province of Bataan have voluntarily
constituted themselves for the purpose of the recall of the
incumbent provincial governor of the province of Bataan,
Honorable Enrique T. Garcia pursuant to the provisions of
Section 70, paragraphs (a), (b) and (c) of Republic Act 7160,
otherwise known as the Local Government Code of 1991;
Whereas, the total number of all the members of the
Preparatory Recall Assembly in the province of Bataan is
One Hundred and Forty- Six (146) composed of all mayors,
vice-mayors and members of the Sangguniang Bayan of all
the 12 towns of the province of Bataan;
Whereas, the majority of all the members of the Preparatory
Recall Assembly, after a serious and careful deliberation
have decided to adopt this resolution for the recall of the
incumbent provincial governor Garcia for loss of confidence;
Now, therefore, be it resolved, as it is hereby resolved that
having lost confidence on the incumbent governor of Bataan,
Enrique T. Garcia, recall proceedings be immediately
initiated against him;
Resolved further, that copy of this resolution be furnished the
Honorable Commission on Elections, Manila and the
Provincial Election Supervisor, Balanga, Bataan.
One hundred forty-six (146) names appeared in Resolution No. 1 but only
eighty (80) carried the signatures of the members of the PRA. Of the eighty
(80) signatures, only seventy-four (74) were found genuine.3 The PRAC of
the province had a membership of one hundred forty-four (144)4 and its
majority was seventy-three (73).
On July 7, 1993, petitioners filed with the respondent COMELEC a petition to
deny due course to said Resolution No. 1. Petitioners alleged that the PRAC
failed to comply with the "substantive and procedural requirement" laid down
in Section 70 of R.A. 7160, otherwise known as the Local Government Code
of 1991. In a per curiamResolution promulgated August 31, 1993, the
respondent COMELEC dismissed the petition and scheduled the recall
elections for the position of Governor of Bataan on October 11 , 1993.
Petitioners then filed with Us a petition for certiorari and prohibition with writ
of preliminary injunction to annul the said Resolution of the respondent
COMELEC on various grounds. They urged that section 70 of R.A. 7160
allowing recall through the initiative of the PRAC is unconstitutional because:
(1) the people have the sole and exclusive right to decide whether or not to
initiate proceedings, and (2) it violated the right of elected local public officials
belonging to the political minority to equal protection of law. They also argued
that the proceedings followed by the PRAC in passing Resolution No. I
suffered from numerous defects, the most fatal of which was the deliberate
failure to send notices of the meeting to sixty-five (65) members of the
assembly. On September 7, 1993, We required the respondents to file their
Comments within a non-extendible period of ten (10) days.5 On September
16, 1993, We set petition for hearing on September 21, 1993 at 11 A.M. After
the hearing, We granted the petition on ground that the sending of selective
notices to members of the PRAC violated the due process protection of the
Constitution and fatally flawed the enactment of Resolution No. 1. We ruled:
xxx xxx xxx
After deliberation, the Court opts not to resolve the alleged
constitutional infirmity of sec. 70 of R.A. No. 7160 for its
resolution is not unavoidable to decide the merits of the
petition. The petition can be decided on the equally
fundamental issues of: (1) whether or not all the members of
the Preparatory Recall Assembly were notified of its
meeting; and (2) assuming lack of notice, whether or not it
would vitiate the proceedings of the assembly including its
Resolution No. 1.
The failure to give notice to all members of the assembly,
especially to the members known to be political allies of
petitioner Garcia was admitted by both counsels of the
respondents. They did not deny that only those inclined to
agree with the resolution of recall were notified as a matter
of political strategy and security. They justified these
selective notices on the ground that the law does not
specifically mandate the giving of notice.
We reject this submission of the respondents. The due
process clause of the Constitution requiring notice as an
element of fairness is inviolable and should always be
considered as part and parcel of every law in case of its
silence. The need for notice to all the members of the
assembly is also imperative for these members represent
the different sectors of the electorate of Bataan. To the
extent that they are not notified of the meeting of the
assembly, to that extent is the sovereign voice of the people
they represent nullified. The resolution to recall should
articulate the majority will of the members of the assembly
but the majority will can be genuinely determined only after
all the members of the assembly have been given a fair
opportunity to express the will of their constituents. Needless
to stress, the requirement of notice is indispensable in
determining the collective wisdom of the members of the
Preparatory Recall Assembly. Its non-observance is fatal to
the validity of the resolution to recall petitioner Garcia as
Governor of the province of Bataan.
The petition raises other issues that are not
only prima impressionis but also of transcendental
importance to the rightful exercise of the sovereign right of
the people to recall their elected officials. The Court shall
discuss these issues in a more extended decision.
In accord with this Resolution, it appears that on September 22, 1993, the
Honorable Mayor of Dinalupihan, Oscar de los Reyes again sent Notice of
Session to the members of the PRAC to "convene in session on September
26, 1993 at the town plaza of Balanga, Bataan at 8:30 o'clock in the
morning."6 From news reports, the PRAC convened in session and eighty-
seven (87) of its members once more passed a resolution calling for the
recall of petitioner Garcia.7 On September 27, 1993, petitioners filed with Us
a Supplemental Petition and Reiteration of Extremely Urgent Motion for a
resolution of their contention that section 70 of R.A. 7160 is unconstitutional.
We find the original Petition and the Supplemental Petition assailing the
constitutionality of section 70 of R.A. 7160 insofar as it allows a preparatory
recall assembly initiate the recall of local elective officials as bereft of merit.
Every law enjoys the presumption of validity. The presumption rests on the
respect due to the wisdom, integrity, and the patriotism of the legislative, by
which the law is passed, and the Chief Executive, by whom the law is
approved,8 For upholding the Constitution is not the responsibility of the
judiciary alone but also the duty of the legislative and executive.9 To strike
down a law as unconstitutional, there must be a clear and unequivocal
showing that what the fundamental law prohibits, the statute permits.10 The
annulment cannot be decreed on a doubtful, and arguable implication. The
universal rule of legal hermeneutics is that all reasonable doubts should be
resolved in favor of the constitutionality of a law. 11
Recall is a mode of removal of a public officer by the people before the end
of his term of office. The people's prerogative to remove a public officer is an
incident of their sovereign power and in the absence of constitutional
restraint, the power is implied in all governmental operations. Such power
has been held to be indispensable for the proper administration of public
affairs. 12 Not undeservedly, it is frequently described as a fundamental right
of the people in a representative democracy. 13
Recall is a mode of removal of elective local officials made its maiden
appearance in our 1973 Constitution.14 It was mandated in section 2 of
Article XI entitled Local Government, viz:
Sec. 2. The Batasang Pambansa shall enact a local
government code which may not thereafter be amended
except by a majority vote of all its Members, defining a more
responsive and accountable local government structure with
an effective system of recall, allocating among the different
local government units their powers, responsibilities, and
resources, and providing for the qualifications, election and
removal, term, salaries, powers, functions, and duties of
local officials, and all other matters relating to the
organization and operation of the local units. However, any
change in the existing form of local government shall not
take effect until ratified by a majority of the votes cast in a
plebiscite called for the purpose. (Emphasis supplied)
The Batasang Pambansa then enacted BP 337 entitled "The Local
Government Code of 1983." Section 54 of its Chapter 3 provided only one
mode of initiating the recall elections of local elective officials, i.e., by petition
of at least twenty-five percent (25%) of the total number of registered voters
in the local government unit concerned, viz:
Sec. 54. By Whom Exercised; Requisites. — (1) The power
of recall shall be exercised by the registered voters of the
unit to which the local elective official subject to such recall
belongs.
(2) Recall shall be validly initiated only upon petition of at
least twenty-five percent (25%) of the total number of
registered voters in the local government unit concerned
based on the election in which the local official sought to be
recalled was elected.
Our legal history does not reveal any instance when this power of recall as
provided by BP 337 was exercised by our people.
In February 1986, however, our people more than exercised their right of
recall for they resorted to revolution and they booted of office the highest
elective officials of the land.
The successful use of people power to remove public officials who have
forfeited the trust of the electorate led to its firm institutionalization in the
1987 Constitution. Its Article XIII expressly recognized the Role and Rights of
People's Organizations, viz:
Sec. 15. The State shall respect the role of independent
people's organizations to enable the people to pursue and
protect, within the democratic framework, their legitimate and
collective interests and aspirations through peaceful and
lawful means.
People's organizations are bona fide associations of citizens
with demonstrated capacity to promote the public interest
and with identifiable leadership, membership, and structure.
Sec. 16. The right of the people and their organizations to
effective and reasonable participation at all levels of social,
political, and economic decision-making shall not be
abridged. The State shall, by laws, facilitate the
establishment of adequate consultation mechanisms.
Section 3 of its Article X also reiterated the mandate for Congress to enact a
local government code which "shall provide for a more responsive and
accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative and
referendum. . .," viz :
Sec. 3. The Congress shall enact a local government code
which shall provide for a more responsible and accountable
local government structure instituted through a system of
decentralization with effective mechanisms of recall,
initiative, and referendum, allocate among the different local
government units their powers, responsibilities, and
resources, and provide for the qualifications, election,
appointment and removal, term, salaries, powers and
functions and duties of local officials, and all other matters
relating to the organization and operation of the local units.
In response to this constitutional call, Congress enacted R.A. 7160,
otherwise known as the Local Government Code of 1991, which took effect
on January 1, 1992. In this Code, Congress provided for a second mode of
initiating the recall process through a preparatory recall assembly which in
the provincial level is composed of all mayors, vice-mayors
and sanggunian members of the municipalities and component cities. We
quote the pertinent provisions of R.A. 7160, viz:
 CHAPTER 5 — RECALL
Sec. 69. By Whom Exercised. — The power of recall for loss
of confidence shall be exercised by the registered voters of a
local government unit to which the local elective official
subject to such recall belongs.
Sec. 70. Initiation of the Recall Process. (a) Recall may be
initiated by a preparatory recall assembly or by the
registered voters of the local government unit to which the
local elective official subject to such recall belongs.
(b) There shall be a preparatory recall assembly in every
province, city, district, and municipality which shall be
composed of the following:
(1) Provincial Level. — all mayors, vice-mayors and
sanggunian members of the municipalities and component
cities;
(2) City level. — All punong barangay and sangguniang
barangay members in the city;
(3) Legislative District level. — In cases where sangguniang
panlalawigan members are elected by district, all elective
municipal officials in the district; in cases where sangguniang
panglungsod members are elected by district , all elective
barangay officials in the district; and
(4) Municipal level. — All punong barangay and
sangguniang barangay members in the municipality.
(c) A majority of all the preparatory recall assembly members
may convene in session in a public place and initiate a recall
proceeding against any elective official in the local
government unit concerned. Recall of provincial, city, or
municipal officials shall be validly initiated through a
resolution adopted by a majority of all the members of the
preparatory recall assembly concerned during its session
called for the purpose.
(d) Recall of any elective provincial, city, municipal, or
barangay official may be validly initiated upon petition of at
least twenty-five (25) percent of the total number of
registered voters in the local government unit concerned
during the election which in the local official sought to be
recalled was elected.
Sec. 71. Election Recall — Upon the filing of a valid
resolution petition for with the appropriate local office of the
Comelec, the Commission or its duly authorized
representative shall set the date of the election on recall,
which shall not be later than thirty (30) days after the filing of
the resolution or petition recall in the case of the barangay,
city, or municipal officials, forty-five (45) days in the case of
provincial officials. The official or officials sought to be
recalled shall automatically be considered as duly registered
candidate or candidates to the pertinent positions and, like
other candidates, shall be entitled to be voted upon.
Sec. 72. Effectivity of Recall. — The recall of an elective
local official shall be effective only upon the election and
proclamation of a successor in the person of the candidate
receiving the highest number of votes cast during the
election on recall. Should the official sought to be recalled
receive the highest number of votes, confidence in him is
thereby affirmed, and he shall continue in office.
Sec. 73. Prohibition from Resignation. — The elective local
official sought to be recalled shall not be allowed to resign
while the recall process is in progress.
Sec. 74. Limitations on Recall. — (a) Any elective local
official may be the subject of a recall election only once
during his term of office for loss of confidence.
(b) No recall shall take place within one (1) year from the
date of the official's assumption to office or one (1) year
immediately preceding regular election.
A reading of the legislative history of these recall provisions will reveal that
the idea of empowering a preparatory recall assembly to initiate the recall
from office of local elective officials originated from the House of
Representatives A reading of the legislative history of these recall provisions
will reveal that the idea of empowering a preparatory recall assembly to
initiate the recall from office of local elective officials, originated from the
House of Representatives and not the Senate. 15 The legislative records
reveal there were two (2) principal reasons why this alternative mode of
initiating the recall process thru an assembly was adopted, viz: (a) to
diminish the difficulty of initiating recall thru the direct action of the people;
and (b) to cut down on its expenses. 16 Our lawmakers took note of the
undesirable fact that the mechanism initiating recall by direct action of the
electorate was utilized only once in the City of Angeles, Pampanga, but even
this lone attempt to recall the city mayor failed. Former Congressman
Wilfredo Cainglet explained that this initiatory process by direct action of the
people was too cumbersome, too expensive and almost impossible to
implement. 17 Consequently, our legislators added in the a second mode of
initiating the recall of local officials thru a preparatory recall assembly. They
brushed aside the argument that this second mode may cause instability in
the local government units due to its imagined ease.
We have belabored the genesis of our recall law for it can light up many of
the unillumined interstices of the law. In resolving constitutional disputes, We
should not be beguiled by foreign jurisprudence some of which are hardly
applicable because they have been dictated by different constitutional
settings and needs. Prescinding from this proposition, We shall now resolve
the contention of petitioners that the alternative mode of allowing a
preparatory recall assembly to initiate the process of recall is
unconstitutional.
It is first postulated by the petitioners that "the right to recall does not extend
merely to the prerogative of the electorate to reconfirm or withdraw their
confidence on the official sought to be recalled at a special election. Such
prerogative necessarily includes the sole and exclusive right to decide on
whether to initiate a recall proceedings or not." 18
We do not agree. Petitioners cannot point to any specific provision of the
Constitution that will sustain this submission. To be sure, there is nothing in
the Constitution that will remotely suggest that the people have the
"soleand exclusive right to decide on whether to initiate a recall proceeding."
The Constitution did not provide for any mode, let alone a single mode, of
initiating recall elections. 19 Neither did it prohibit the adoption of multiple
modes of initiating recall elections. The mandate given by section 3 of Article
X of the Constitution is for Congress to "enact a local government code
which shall provide for a more responsive and accountable local government
structure through a system of decentralization with effective mechanisms of
recall, initiative, and referendum . . ." By this constitutional mandate,
Congress was clearly given the power to choose the effective mechanisms of
recall as its discernment dictates. The power given was to select which
among the means and methods of initiating recall elections are effective to
carry out the judgment of the electorate. Congress was not straightjacketed
to one particular mechanism of initiating recall elections. What the
Constitution simply required is that the mechanisms of recall, whether one or
many, to be chosen by Congress should be effective. Using its
constitutionally granted discretion, Congress deemed it wise to enact an
alternative mode of initiating recall elections to supplement the former mode
of initiation by direct action of the people. Congress has made its choice as
called for by the Constitution and it is not the prerogative of this Court to
supplant this judgment. The choice may be erroneous but even then, the
remedy against a bad law is to seek its amendment or repeal by the
legislative. By the principle of separation of powers, it is the legislative that
determines the necessity, adequacy, wisdom and expediency of any law. 20
Petitioners also positive thesis that in passing Resolution 1, the Bataan
Preparatory Recall Assembly did not only initiate the process of recall but
had de facto recalled petitioner Garcia from office, a power reserved to the
people alone. To quote the exact language of the petitioners: "The initiation
of a recall through the PRA effectively shortens and ends the term of the
incumbent local officials. Precisely, in the case of Gov. Garcia, an election
was scheduled by the COMELEC on 11 October 1993 to determine who has
the right to assume the unexpired portion of his term of office which should
have been until June 1995. Having been relegated to the status of a mere
candidate for the same position of governor (by operation of law) he has,
therefore, been effectively recalled." 21 In their Extremely Urgent Clarificatory
Manifestation, 22 petitioners put the proposition more bluntly stating that a
"PRA resolution of recall is the re call itself."
Again, the contention cannot command our concurrence. Petitioners have
misconstrued the nature of the initiatory process of recall by the PRAC. They
have embraced the view that initiation by the PRAC is not initiation by the
people. This is a misimpression for initiation by the PRAC is also initiation by
the people, albeit done indirectly through their representatives. It is not
constitutionally impermissible for the people to act through their elected
representatives. Nothing less than the paramount task of drafting our
Constitution is delegated by the people to their representatives, elected
either to act as a constitutional convention or as a congressional constituent
assembly. The initiation of a recall process is a lesser act and there is no
rhyme or reason why it cannot be entrusted to and exercised by the elected
representatives of the people. More far out is petitioners' stance that a PRA
resolution of recall is the recall itself. It cannot be seriously doubted that a
PRA resolution of recall merely, starts the process. It is part of the process
but is not the whole process. This ought to be self evident for a PRA
resolution of recall that is not submitted to the COMELEC for validation will
not recall its subject official. Likewise, a PRA resolution of recall that is
rejected by the people in the election called for the purpose bears no effect
whatsoever. The initiatory resolution merely sets the stage for the official
concerned to appear before the tribunal of the people so he can justify why
he should be allowed to continue in office. Before the people render their
sovereign judgment, the official concerned remains in office but his right to
continue in office is subject to question. This is clear in section 72 of the
Local Government Code which states that "the recall of an elective local
official shall be effective only upon the election and proclamation of a
successor in the person of the candidate receiving the highest number of
votes cast during the election on recall."
We shall next settle the contention of petitioners that the disputed law infracts
the equal protection clause of the Constitution. Petitioners asseverate:
5.01.2. It denied petitioners the equal protection of the laws
for the local officials constituting the majority party can
constitute itself into a PRA and initiate the recall of a duly
elected provincial official belonging to the minority party thus
rendering ineffectual his election by popular mandate.
Relevantly, the assembly could, to the prejudice of the
minority (or even partyless) incumbent official, effectively
declare a local elective position vacant (and demand the
holding of a special election) for purely partisan political ends
regardless of the mandate of the electorate. In the case at
bar, 64 of the 74 signatories to the recall resolution have
been political opponents of petitioner Garcia, not only did
they not vote for him but they even campaigned against him
in the 1992 elections.
Petitioners' argument does not really assail the law but its possible abuse by
the members of the PRAC while exercising their right to initiate recall
proceedings. More specifically, the fear is expressed that the members of the
PRAC may inject political color in their decision as they may initiate recall
proceedings only against their political opponents especially those belonging
to the minority. A careful reading of the law, however, will ineluctably show
that it does not give an asymmetrical treatment to locally elected officials
belonging to the political minority. First to be considered is the politically
neutral composition of the preparatory recall assembly. Sec. 70 (b) of the
Code provides:
Sec. 70. Initiation of the Recall Process. (a) Recall may be
initiated by a preparatory recall assembly or by the
registered voters of the local government unit to which the
local elective official subject to such recall belongs.
(b) There shall be a preparatory recall assembly in every
province, city, district, and municipality which shall be
composed of the following:
(1) Provincial level. — All mayors, vice-mayors and
sanggunian members of the municipalities and component
cities;
(2) City level. — All punong barangay and sangguniang
barangay members in the city;
(3) Legislative District Level. — In cases where sangguniang
panlalawigan members are elected by district, all elective
municipal officials in the district; and in cases where
sangguniang panglungsod members are elected by district,
all elective barangay officials in the district; and
(4) Municipal level. — All punong barangay and
sangguniang barangay members in the municipality.
Under the law, all mayors, vice-mayors and sangguniang members of the
municipalities and component cities are made members of the preparatory
recall assembly at the provincial level. Its membership is not apportioned to
political parties. No significance is given to the political affiliation of its
members. Secondly, the preparatory recall assembly, at the provincial level
includes all the elected officials in the province concerned. Considering their
number, the greater probability is that no one political party can control its
majority. Thirdly, sec. 69 of the Code provides that the only ground to recall a
locally elected public official is loss of confidence of the people. The
members of the PRAC are in the PRAC not in representation of their political
parties but as representatives of the people. By necessary implication, loss of
confidence cannot be premised on mere differences in political party
affiliation. Indeed, our Constitution encourages multi-party system for the
existence of opposition parties is indispensable to the growth and nurture of
democratic system. Clearly then, the law as crafted cannot be faulted for
discriminating against local officials belonging to the minority.
The fear that a preparatory recall assembly may be dominated by a political
party and that it may use its power to initiate the recall of officials of opposite
political persuasions, especially those belonging to the minority, is not a
ground to strike down the law as unconstitutional. To be sure, this argument
has long been in disuse for there can be no escape from the reality
that all powers are susceptible of abuse. The mere possibility of abuse
cannot, however, infirm per se the grant of power to an individual or entity.
To deny power simply because it can be abused by the grantee is to render
government powerless and no people need an impotent government. There
is no democratic government that can operate on the basis of fear and
distrust of its officials, especially those elected by the people themselves. On
the contrary, all our laws assume that officials, whether appointed or elected,
will act in good faith and will perform the duties of their office. Such
presumption follows the solemn oath that they took after assumption of
office, to faithfully execute all our laws.
Moreover, the law instituted safeguards to assure that the initiation of the
recall process by a preparatory recall assembly will not be corrupted by
extraneous influences. As explained above, the diverse and distinct
composition of the membership of a preparatory recall assembly guarantees
that all the sectors of the electorate province shall be heard. It is for this
reason that in Our Resolution of September 21, 1993, We held that notice to
all the members of the recall assembly is a condition sine qua non to the
validity of its proceedings. The law also requires a qualified majority of all the
preparatory recall assembly members to convene in session and in a public
place. It also requires that the recall resolution by the said majority must be
adopted during its session called for the purpose. The underscored words
carry distinct legal meanings and purvey some of the parameters limiting the
power of the members of a preparatory recall assembly to initiate recall
proceedings. Needless to state, compliance with these requirements is
necessary, otherwise, there will be no valid resolution of recall which can be
given due course by the COMELEC.
Furthermore, it cannot be asserted with certitude that the members of the
Bataan preparatory recall assembly voted strictly along narrow political lines.
Neither the respondent COMELEC nor this Court made a judicial inquiry as
to the reasons that led the members of the said recall assembly to cast a
vote of lack of confidence against petitioner Garcia. That inquiry was not
undertaken for to do so would require crossing the forbidden borders of the
political thicket. Former Senator Aquilino Pimentel, Jr., a major author of the
subject law in his book The Local Government Code of 1991: The Key to
National Development, stressed the same reason why the substantive
content of a vote of lack of confidence is beyond any inquiry, thus:
There is only one ground for the recall of local government
officials: loss of confidence. This means that the people may
petition or the Preparatory Recall Assembly may resolve to
recall any local elective officials without specifying any
particular ground except loss of confidence. There is no
need for them to bring up any charge of abuse or corruption
against the local elective officials who are the subject of any
recall petition.
In the case of Evardone vs. Commission on Elections, et al.,
204 SCRA 464, 472 (1991), the Court ruled that "loss of
confidence" as a ground for recall is a political question. In
the words of the Court, "whether or not the electorate of the
municipality of Sulat has lost confidence in the incumbent
mayor is a political question.
Any assertion therefore that the members of the Bataan preparatory recall
assembly voted due to their political aversion to petitioner Garcia is at best a
surmise.
Petitioners also contend that the resolution of the members of the
preparatory recall assembly subverted the will of the electorate of the
province of Bataan who elected petitioner Garcia with a majority of 12,500
votes. Again, the contention proceeds from the erroneous premise that the
resolution of recall is the recall itself. It refuses to recognize the reality that
the resolution of recall is a mere proposal to the electorate of Bataan to
subject petitioner to a new test of faith. The proposal will still be passed upon
by the sovereign electorate of Bataan. As this judgment has yet to be
expressed, it is premature to conclude that the sovereign will of the
electorate of Bataan has been subverted. The electorate of Bataan may or
may not recall petitioner Garcia in an appropriate election. If the electorate
re-elects petitioner Garcia, then the proposal to recall him made by the
preparatory recall assembly is rejected. On the other hand, if the electorate
does not re-elect petitioner Garcia, then he has lost the confidence of the
people which he once enjoyed. The judgment will write finis to the political
controversy. For more than judgments of courts of law, the judgment of the
tribunal of the people is final for "sovereignty resides in the people and all
government authority emanates from them."
In sum, the petition at bench appears to champion the sovereignty of the
people, particularly their direct right to initiate and remove elective local
officials thru recall elections. If the petition would succeed, the result will be a
return to the previous system of recall elections which Congress found
should be improved. The alternative mode of initiating recall proceedings thru
a preparatory recall assembly is, however, an innovative attempt by
Congress to remove impediments to the effective exercise by the people of
their sovereign power to check the performance of their elected officials. The
power to determine this mode was specifically given to Congress and is not
proscribed by the Constitution.
IN VIEW WHEREOF, the original Petition and the Supplemental Petition
assailing the constitutionality of section 70 of R.A. 7160 insofar as it allows a
preparatory recall assembly to initiate the recall process are dismissed for
lack of merit. This decision is immediately executory.
SO ORDERED.
GARCIA V. COMELEC
227 SCRA 100
PUNO, October 5, 1993
NATURE
Original Petition and the Supplemental Petition assailing the constitutionality of section 70 of R.A. 7160 insofar as it
allows a preparatory recall assembly to initiate the recall of local elective officials
FACTS
-May 11, 1992, Enrique Garcia (petitioner) was elected governor of Bataan.
-BUT in the early evening of July 1, some mayors, vice-mayors and members of the Sangguinang Bayan of the 12
municipalities of Bataan met at the NPC Compound and the following day, they proceeded to constitute themselves
into a Preparatory Recall Assembly (PRAC) to initiate the recall election of PETITIONER. They chose Mayor De los
Reyes (Mariveles) as Presiding Officer and Mayor Payumo (Dinalupihan) as Secretary of the assembly. Vice-Mayor
Roque (Limay) moved that a resolution3 be passed for the recall of PETITIONER on the ground of “loss of
confidence”, which was “unanimously seconded”.
-July 7, PETITIONER filed with COMELEC a petition to deny due course to Resolution No. 1 alleging failure of PRAC
to comply with the "substantive and procedural requirements" laid down in Section 70 of R.A. 7160 (LGC)
-COMELEC: DISMISS petition, schedule recall elections on October 11.
-PETITIONER filed petition for certiorari and prohibition with writ of preliminary injunction to annul COMELEC
Resolution (arguments):
a. Sec. 70, LGC unconstitutional because:
(1) the people have the sole and exclusive right to decide whether or not to initiate recall proceedings,
(2) it violated the right of elected local public officials belonging to the political minority to equal protection of law.
b. the proceedings followed by the PRAC in passing Resolution No. 1 suffered from numerous defects, the most fatal
of which was the deliberate failure to send notices of the meeting to sixty-five (65) members of the assembly.
-SC: ordered respondents to file Comments, set petition for hearing. After hearing, granted petition on the narrow
ground that the sending of selective notices to members of the PRAC violated the due process protection of the
Constitution and fatally flawed the enactment of Resolution No. 1 (and not ruling on alleged constitutional infirmity of
Sec.70).
-In accord with the SC Resolution, Mayor De los Reyes AGAIN sent NOTICE OF SESSION to the members of the
PRAC to convene and once more, PRAC passed a resolution calling for the recall of PETITIONER
-Petitioner filed a supplemental Petition Petition and Reiteration of Extremely Urgent Motion presiding for a resolution
of their contention that section 70 of R.A. 7160 is unconstitutional:
a. the right to recall does not extend merely to the prerogative of the electorate to reconfirm or withdraw their
confidence on the official sought to be recalled at a special election. Such prerogative necessarily includes the sole
and exclusive right to decide on whether to initiate a recall proceedings or not
b. in passing Resolution No. 1, the Bataan Preparatory Recall Assembly did not only initiate the process of recall but
had de facto recalled petitioner Garcia from office, a power reserved to the people alone
3RESOLUTION NO. 1
Whereas, the majority of all the members of the Preparatory Recall Assembly in the Province of Bataan
have voluntarily constituted themselves for the purpose of the recall of the incumbent provincial governor of the
province of Bataan, Honorable Enrique T. Garcia pursuant to the provisions of Section 70, paragraphs (a), (b) and (c)
of Republic Act 7160, otherwise known as the Local Government Code of 1991;
Whereas, the total number of all the members of the Preparatory Recall Assembly in the province of
Bataan is One Hundred and Forty-Six (146) composed of all mayors, vice-mayors and members of the Sangguniang
Bayan of all the 12 towns of the province of Bataan;
Whereas, the majority of all the members of the Preparatory Recall Assembly, after a serious and careful
deliberation have decided to adopt this resolution for the recall of the incumbent provincial governor Enrique T. Garcia
for loss of confidence;
Now, therefore, be it resolved as it is hereby resolved that having lost confidence on the incumbent
provincial governor of Bataan, Enrique T. Garcia, recall proceedings be immediately initiated against him;
Resolved Further, that copy of this resolution be furnished the Honorable Commission on Elections,
Manila and the Provincial Election Supervisor, Balanga, Bataan.
One hundred forty-six (146) names appeared in Resolution No. 1 but only eighty (80) carried the
signatures of the members of the PRA. Of the eighty (80) signatures, only seventy-four (74) were found genuine. 3
c. EPC argument: the local officials constituting the majority party can constitute itself into a PRA and initiate the recall
of a duly elected provincial official belonging to the minority party thus rendering ineffectual his election by popular
mandate
ISSUE
WON Section 70, of RA 7160 is unconstitutional
HELD
NO. The petition at bench appears to champion the sovereignty of the people, particularly their direct right to initiate
and remove elective local officials thru recall elections. If the petition would succeed, the result will be a return to the
previous system of recall elections which Congress found should be improved. The alternative mode of initiating recall
proceedings thru a preparatory recall assembly is, however, an innovative attempt by Congress to remove
impediments to the effective exercise by the people of their sovereign power to check the performance of their elected
officials. The power to determine this mode was specifically given to Congress and is not proscribed by the
Constitution.
Ratio. (On presumption of validity of laws) Every law enjoys the presumption of validity. The presumption rests on
the respect due to the wisdom, integrity, and the patriotism of the legislative, by which the law is passed, and the
Chief Executive, by whom the law is approved. For upholding the Constitution is not the responsibility of the judiciary
alone but also the duty of the legislative and executive. To strike down a law as unconstitutional, there must be a
clear and unequivocal showing that what the fundamental law prohibits, the statute permits. The annulment cannot
be decreed on a doubtful and arguable implication. The universal rule of legal hermeneutics is that all reasonable
doubts should be resolved in favor of the constitutionality of a law.
(RECALL DISCUSSION) Recall is a mode of removal of a public officer by the people before the end of his term of
office. The people's prerogative to remove a public officer is an incident of their sovereign power and in the absence
of constitutional restraint, the power is implied in all governmental operations. Such power has been held to be
indispensable for the proper administration of public affairs. Not undeservedly, it is frequently described as a
fundamental right of the people in a representative democracy.
-Recall as a mode of removal of elective local officials made its maiden appearance in our 1973 Constitution (AXI,
S2). Pursuant to which, Batasang Pambansa enacted BP 337 (LGC of 1983) wherein Chap3, Sec54 provided only 1
mode of initiating recall elections of local elective officials (by petition of at least twenty-five percent (25%) of the total
number of registered \voters in the local government unit concerned)
-EDSA REVOLUTION: our people more than exercised their right of recall for they resorted to revolution and they
booted out of office the highest elective officials of the land
-1987 Consti: AXIII, Sec 15 and 16 (People’s Participation) and AX, Sec3(Similar to 1973 Consti) (SEE CONSTI)
-RA 7160 was enacted in response to these consti provisions. In this Code, Congress provided for a second mode of
initiating the recall process through a preparatory recall assembly which in the provincial level is composed of all
mayors, vice-mayors and sanggunian members of the municipalities and component cities4.
The PRAC of the province had a membership of one hundred forty-four (144) 4 and its majority was seventy-three
(73).
4 CHAPTER 5 -- RECALL
Sec. 69. By Whom Exercised. -- The power of recall for loss of confidence shall be exercised by the registered
voters of a local government unit to which the local elective official subject to such recall belongs.
Sec. 70. Initiation of the Recall Process.
(a) Recall may be initiated by a preparatory recall assembly or by the registered voters of the local government unit to
which the local elective official subject to such recall belongs.
(b) There shall be a preparatory recall assembly in every province, city, district, and municipality which shall be
composed of the following:
(1) Provincial level. -- all mayors, vice-mayors and sanggunian members of the municipalities and component cities;
(2) City level. -- All punong barangay and sangguniang barangay members in the city;
(3) Legislative District level. -- In cases where sangguniang panlalawigan members are elected by district, all elective
municipal officials in the district; and in cases where sangguniang panlungsod members are elected by district, all
elective barangay officials in the district; and
(4) Municipal level. -- All punong barangay and sangguniang barangay members in the municipality.

-why add a second mode: the idea of empowering a preparatory recall assembly to initiate the recall from office of
local elective officials originated from the House of Representatives and not the Senate. The legislative records reveal
that there were two (2) principal reasons why this alternative mode of initiating the recall process thru an assembly
was adopted, viz: (a) to diminish the difficulty of initiating recall thru the direct action of the people; and (b) to cut down
on its expenses.
Reasoning. On first argument: Consti did not provide that only the people have the right to decide on WON to
initiate a recall; did not provide mode for initiating recall but gave CONGRESS the power to choose the effective
mechanism of recall. AND Congress deemed it wise to enact an alternative mode of initiating recall elections to
supplement the former mode of initiation by direct action of the people. Congress has made its choice as called for by
the Constitution and it is not the prerogative of this Court to supplant this judgment. The choice may be erroneous but
even then, the remedy against a bad law is to seek its amendment or repeal by the legislative. By the principle of
separation of powers, it is the legislative that determines the necessity, adequacy, wisdom and expediency of any
law.
-on second argument: Initiation by the PRAC is also initiation by the people, albeit done indirectly through their
representatives. It is not constitutionally impermissible for the people to act through their elected representatives. PRA
resolution of recall merely starts the process. It is part of the process but is not the whole process. This ought to be
self evident for a PRA resolution of recall that is not submitted to the COMELEC for validation will not recall its subject
official. Likewise, a PRA resolution of recall that is rejected by the people in the election called for the purpose bears
no effect whatsoever. The initiatory resolution merely sets the stage for the official concerned to appear before the
tribunal of the people so he can justify why he should be allowed to continue in office. Before the people render their
sovereign judgment, the official concerned remains in office but his right to continue in office is subject to question.
This is clear in section 72 of the Local Government Code which explicitly states that "the recall of an elective local
official shall be effective only upon the election and proclamation of a successor in the person of the candidate
receiving the highest number of votes cast during the election on recall."
-on EPC argument: The law does not give an asymmetrical treatment to locally elected officials belonging to the
political minority. First to be considered is the politically neutral composition of the preparatory recall assembly. Under
the law, all mayors, vice-mayors and sangguniang members of the municipalities and component cities are made
members of the preparatory recall assembly at the provincial level. Its membership is not apportioned to political
parties. No significance is given to the political affiliation of its members. Secondly; the preparatory recall assembly at
the provincial level includes all the elected officials in the province concerned. Considering their number, the greater
probability is that no one political party can control its majority. Thirdly, sec. 69 of the Code provides that the only
ground to recall a locally elected public official is loss of confidence of the people. The members of the PRAC are in
the PRAC not in representation of their political parties but as representatives of the people. By necessary implication,
loss of confidence cannot be premised on mere differences in political party affiliation. Indeed, our Constitution
encourages the multi-party system for the existence of opposition parties is indispensable to the growth and nurture of
the democratic system. Clearly then, the law as crafted cannot be faulted for discriminating against elected local
officials belonging to the minority.
-The fear that a preparatory recall assembly may be dominated by a political party and that it may use its power to
initiate the recall of officials of opposite political persuasions, especially those belonging to the minority, is not a
ground to strike down the law as unconstitutional. To be sure, this argument has long been in disuse for there can be
no escape from the reality that all powers are susceptible of abuse. The mere possibility of abuse cannot, however,
infirm per se the grant of power to an individual or entity. To deny power simply because it can be abused by the
(c ) A majority of all the preparatory recall assembly members may convene in session in a public place and initiate a
recall proceeding against any elective official in the local government unit concerned. Recall of provincial, city, or
municipal officials shall be validly initiated through a resolution adopted by a majority of all the members of the
preparatory recall assembly concerned during its session called for the purpose.
(d) Recall of any elective provincial, city, municipal, or barangay official may be validly initiated upon petition of at
least twenty-five (25) percent of the total number of registered voters in the local government unit concerned during
the election in which the local official sought to be recalled was elected.
Sec. 71. Election Recall -- Upon the filing of a valid resolution or petition for recall with the appropriate local office
of the Comelec, the Commission or its duly authorized representative shall set the date of the election on recall, which
shall not be later than thirty (30) days after the filing of the resolution or petition for recall in the case of the barangay,
city, or municipal officials, and forty-five (45) days in the case of provincial officials. The official or officials sought to
be recalled shall automatically be considered as duly registered candidate or candidates to the pertinent positions
and, like other candidates, shall be entitled to be voted upon.
grantee is to render government powerless and no people need an impotent government. There is no democratic
government that can operate on the basis of fear and distrust of its officials, especially those elected by the people
themselves. On the contrary, all our laws assume that our officials, whether appointed or elected, will act in good faith
and will regularly perform the duties of their office. Such a presumption follows the solemn oath that they took after
assumption of office, to faithfully execute all our laws.
-lack of confidence (vote beyond any inquiry) accdg to Pimentel: "There is only one ground for the recall of local
government officials: loss of confidence. This means that the people may petition or the Preparatory Recall Assembly
may resolve to recall any local elective officials without specifying any particular ground except loss of confidence.
There is no need for them to bring up any charge of abuse or corruption against the local elective officials who are the
subject of any recall petition.
In the case of Evardone vs. Commission on Elections, the Court ruled that "loss of confidence" as a ground for
recall is a political question. In the words of the Court, "whether or not the electorate of the municipality of Sulat has
lost confidence in the incumbent mayor is a political question."
Disposition. IN VIEW WHEREOF, the original Petition and the Supplemental Petition assailing the constitutionality of
section 70 of R.A. 7160 insofar as it allows a preparatory recall assembly to initiate the recall process are dismissed
for lack of merit. This Decision is immediately executory. SO ORDERED.
SEPARATE OPINIONS
QUIASON, J., concurring:
-The 1987 Constitution does not prescribe the procedure in the recall of elective officials. The intent is clear that the
1987 Constitution leaves it to Congress to provide the recall mechanism without any pre-ordained restrictions. The
broad powers of Congress in prescribing the procedure for recall include the determination as to the number of
electors needed to initiate the recall, the method of voting of the electors, the time and place of the voting and
whether the process includes the election of the successor of the recalled official.
-In the Local Government Code of 1991 (R.A. No. 7160), Congress adopted an alternative procedure for initiating the
recall and made it as a mere stage of the recall process.
-Congress also deigned it wise to give the electorate a chance to participate in the exercise twice: first, in the initiation
of the recall; and, secondly, in the election of the person to occupy the office subject of the recall. This is in contrast
with the first recall statute in the Philippines, the Festin Law (Com. Act No. 560) where the participation of the
electorate ended after the voting for the recall. In the Festin Law, the electorate were denied the opportunity to vote
for the retention of the official subject of the recall.
-In a sense, the members of the PRA can be considered as constituting a segment of the electorate because they are
all registered voters of the province. If they constitute less than one percent of the voters in the province, that
miniscule number goes to the policy, not the validity of the law and the remedy to correct such a flaw is left with the
legislature, not with the judiciary.
VITUG, J., concurring:
-it is not within the province of the courts to question the wisdom of, let alone supplant, legislative judgments laid
down by Congress to the extent of its constitutional authority and mandate.
-CAUTION against any idea of omnipotence in wielding the "power of recall" conferred to the "Preparatory Recall
Assembly." Clearly implicit in any grant of power, like any other right, is an assumption of a correlative duty to
Sec. 72. Effectivity of Recall. -- The recall of an elective local official shall be effective only upon the election and
proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the
election on recall. Should the official sought to be recalled receive the highest number of votes, confidence in him is
thereby affirmed, and he shall continue in office.
Sec. 73. Prohibition from Resignation. -- The elective local official sought to be recalled shall not be allowed to
resign while the recall process is in progress.
Sec. 74. Limitations on Recall. –
(a) Any elective local official may be the subject of a recall election only once during his term of office for loss of
confidence.
(b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year
immediately preceding a regular election.
exercise it responsibly. When it, therefore, becomes all too evident that there has been an abuse of that authority, more than three hundred thousand (300,000):
appropriate judicial recourse to, and corrective relief by, this Court will not be denied.
Provided, however, That in no case shall the
required number of petitioners be less than fifteen
Republic Act No. 9244 February 19 2004 thousand (15,000); and

AN ACT ELIMINATING THE PREPARATORY RECALL ASSEMBLY 4. At least ten percent (10%) in the case of local
AS A MODE OF INSTITUTING RECALL OF ELECTIVE LOCAL government units with a voting population of over
GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE three hundred thousand (300,000): Provided,
SECTIONS 70 AND 71, CHAPTER 5, TITLE ONE, BOOK I OF however, That in no case shall the required
REPUBLIC ACT NO. 7160, OTHERWISE KNOWN AS THE "LOCAL petitioners be less than forty-five thousand
GOVERNMENT CODE OF 1991", AND FOR OTHER PURPOSES (45,000).

Be it enacted by the Senate and House of Representatives of the b. The process of recall shall be effected in accordance
Philippines in Congress assembled: with the following procedure:

SECTION 1. Section 70, Chapter 5, Title One, Book I of Republic Acts 1. A written petition for recall duly signed by the
No. 7160, otherwise known as the Local Government Code of 1991, is representatives of the petitioners before the
hereby amended to read as follows: election registrar or his representative, shall be
filed with the Comelec through its office in the
"Section 70. Initiation of the Recall Process. - local government unit concerned.

a. The Recall of any elective provincial, city, municipal or 2. The petition to recall shall contain the following:
barangay official shall be commenced by a petition of a
registered voter in the local government unit concerned a. The names and addresses of the
and supported by the registered voters in the local petitioners written in legible form and their
government unit concerned during the election in which signatures;
the local official sought to be recalled was elected subject
to the following percentage requirements:
b. The barangay, city or municipality, local
legislative district and the province to
1. At least twenty-five percent (25%) in the case which the petitioners belong;
of local government units with a voting population
of not more than twenty thousand (20,000);
c. The name of the official sought to be
recalled; and
2. At least twenty percent (20%) in the case of
local government units with a voting population of
d. A brief narration of the reasons and
at least twenty thousand (20,000) but not more
justifications therefore.
than seventy-five thousand (75,000): Provided,
That in no case shall the required petitioners be
less than five thousand (5,000); 1. The Comelec shall, within
fifteen (15) days from the filing of
the petition, certify to the
3. At least fifteen percent (15%) in the case of
sufficiency of the required number
local government nits with a voting population of
of signatures. Failure to obtain the
at least seventy-five thousand (75,000) but not
required number of signatures
automatically nullifies the petition;
2. If the petition is found to be
sufficient in form, the Comelec or
its duly authorized representative
shall, within three (3) days form
the issuance of the certification,
provide the official sought to be
recalled a copy of the petition,
cause its publication a national
newspaper of general circulation
and a newspaper of general
circulation in the locality, once a
week for three (3) consecutive
weeks at the expense of the
petitioners and at the same time
post copies thereof in public and
conspicuous places for a period of
not less than ten (10) days nor
more than twenty (20) days, for
the purpose of allowing interested
parties to examine and verify the
validity of the petition and the
authenticity of the signatures
contained therein.
3. The Comelec or its duly
authorized representatives shall,
upon issuance of certification,
proceed independently with the
verification and authentication of
the signatures of the petitioners
and registered voters contained
therein. Representatives of the
petitioners and the official sought
to be recalled shall be duly notified
and shall have the right to
participate therein as mere
observers. The filing of any
challenge or protest shall be
allowed within the period provided
in the immediately preceding
paragraph and shall be ruled upon
with finality within fifteen (15) days
from the date of filing of such
protest or challenge;
4. Upon the lapse of the aforesaid
period, the Comelec or its duly
authorized representative shall
announce the acceptance of
candidates to the positive and
thereafter prepare the list of
candidates which shall include the
name of the official sought to be
recalled."
SEC. 2. Section 71. Chapter 5, Title One, Book I of the Republic Act No.
7160, "Local Government Code of 1991", is hereby amended to read as
follows:
(1) "SEC. 71. Election on Recall. - Upon the filing of a valid
petition for recall with the appropriate local office of the Comelec,
the Comelec or its duly authorized representative shall set the
date of the election or recall, which shall not be later than thirty
(30) days upon the completion of the procedure outlined in the
preceding article, in the case of the barangay, city or municipal
officials, and forty-five (45) days in the case of provincial officials.
The officials sought to be recalled shall automatically be
considered as duly registered candidate or candidates to the
pertinent positions and, like other candidates, shall be entitled to
be voted upon."
SEC. 3. All pending petitions for recall initiated through the Preparatory
Recall Assembly shall be considered dismissed upon the effectivity of this
Act.
SEC. 4. All laws, presidential decrees, executive orders, issuances, and
rules and regulations, and parts thereof, which are inconsistent with the
provisions of this Act. Are hereby repealed or modified accordingly.
SEC. 5. This Act shall take effect fifteen (15) days after its publication in
the Official Gazette or in at least two 92) national newspapers of general
circulation.

CHAPTER V
Recall
Section 69. By Whom Exercised. - The power of recall for loss of confidence shall be
exercised by the registered voters of a local government unit to which the local
elective official subject to such recall belongs.
Section 70. Initiation of the Recall Process. -
(a) Recall may be initiated by a preparatory recall assembly or by the
registered voters of the local government unit to which the local elective
official subject to such recall belongs.
(b) There shall be a preparatory recall assembly in every province, city,
district, and municipality which shall be composed of the following:
(1) Provincial level. - All mayors, vice-mayors, and sanggunian
members of the municipalities and component cities;
(2) City level. - All punong barangay and sanggunian barangay
members in the city;
(3) Legislative District level. - In case where sangguniang
panlalawigan members are elected by district, all elective municipal
officials in the district; and in cases where sangguniang panlungsod
members are elected by district, all elective barangay officials in the
district; and
(4) Municipal level. - All punong barangay and sangguniang
barangay members in the municipality.
(c) A majority of all the preparatory recall assembly members may convene
in session in a public place and initiate a recall proceedings against any
elective official in the local government unit concerned. Recall of provincial,
city, or municipal officials shall be validly initiated through a resolution
adopted by a majority of all the members of the preparatory recall assembly
concerned during its session called for the purpose.
(d) Recall of any elective provincial, city, municipal, or barangay official may
also be validly initiated upon petition of at least twenty-five percent (25%) of
the total number of registered voters in the local government unit concerned
during the election in which the local official sought to be recalled was
elected.
(1) A written petition for recall duly signed before the election
registrar or his representative, and in the presence of a
representative of the petitioner and a representative of the official
sought to be recalled and, and in a public place in the province,
city, municipality, or barangay, as the case may be, shall be filed
with the COMELEC through its office in the local government unit
concerned. The COMELEC or its duly authorized representative
shall cause the publication of the petition in a public and
conspicuous place for a period of not less than ten (10) days nor
more than twenty (20) days, for the purpose of verifying the
authenticity and genuineness of the petition and the required
percentage of voters.
(2) Upon the lapse of the aforesaid period, the COMELEC or its
duly authorized representative shall announce the acceptance of
candidates to the position and thereafter prepare the list of
candidates which shall include the name of the official sought to be
recalled.
Section 71. Election on Recall. - Upon the filing of a valid resolution or petition for
recall with the appropriate local office of the COMELEC, the Commission or its duly
authorized representative shall set the date of the election on recall, which shall not
be later than thirty (30) days after the filing of the resolution or petition for recall in the
case of the barangay, city, or municipal officials. and forty-five (45) days in the case of
provincial officials. The official or officials sought to be recalled shall automatically be
considered as duly registered candidate or candidates to the pertinent positions and,
like other candidates, shall be entitled to be voted upon.
Section 72. Effectivity of Recall. - The recall of an elective local official shall be
effective only upon the election and proclamation of a successor in the person of the
candidate receiving the highest number of votes cast during the election on recall.
Should the official sought to be recalled receive the highest number of votes,
confidence in him is thereby affirmed, and he shall continue in office.
Section 73. Prohibition from Resignation. - The elective local official sought to be
recalled shall not be allowed to resign while the recall process is in progress.
Section 74. Limitations on Recall. -
(a) Any elective local official may be the subject of a recall election only once
during his term of office for loss of confidence.
(b) No recall shall take place within one (1) year from the date of the official's
assumption to office or one (1) year immediately preceding a regular local
election.
 Present:
ARCHBISHOP FERNANDO R. CAPALLA, OMAR SOLITARIO ALI and
CARPIO, J.,
MARY ANNE L. SUSANO,
VELASCO, JR.,
Petitioners, G.R. No. 201112
LEONARDO-DE CASTRO,
- versus -
BRION,
PERALTA,
THE HONORABLE COMMISSION ON ELECTIONS,
BERSAMIN,
Respondent.
DEL CASTILLO,
x--------------------------------------------x
ABAD,
VILLARAMA, JR.,
SOLIDARITY FOR SOVEREIGNTY (S4S), represented by Ma. Linda
PEREZ,
Olaguer; RAMON PEDROSA, BENJAMIN PAULINO SR., EVELYN
MENDOZA,
CORONEL, MA. LINDA OLAGUER MONTAYRE, and NELSON T.
SERENO,
MONTAYRE,
REYES, and
Petitioners,
PERLAS-BERNABE, JJ.
G.R. No. 201121
- versus -
Promulgated:
COMMISSION ON ELECTIONS, represented by its Chairman,
June 13, 2012
Commissioner SIXTO S. BRILLANTES, JR.,
Respondent.
x--------------------------------------------x

TEOFISTO T. GUINGONA, BISHOP BRODERICK S. PABILLO, SOLITA

COLLAS MONSOD, MARIA CORAZON MENDOZA ACOL, FR. JOSE
DIZON, NELSON JAVA CELIS, PABLO R. MANALASTAS, GEORGINA R.
ENCANTO and ANNA LEAH E. COLINA,
Petitioners,
- versus -

COMMISSION ON ELECTIONS and SMARTMATIC TIM

CORPORATION,
Respondents.
x--------------------------------------------x G.R. No. 201127
TANGGULANG DEMOKRASYA (TAN DEM), INC., EVELYN L.
KILAYKO, TERESITA D. BALTAZAR, PILAR L. CALDERON and ELITA T.
MONTILLA,
Petitioners, x----------------------------------------------------------------------------------------x

DECISION
- versus -

PERALTA, J.:

COMMISSION ON ELECTIONS and SMARTMATIC-TIM Corporation, Pursuant to its authority to use an Automated Election System (AES) under Republic Act (RA) No. 8436, as
Respondents.
amended by RA No. 9369, or the Automation Law and in accordance with RA No. 9184, otherwise known
G.R. No. 201413
as the Government Procurement Reform Act, the Commission on Elections (Comelec) posted and to the following conditions: (1) the warranties agreed upon in the AES contract shall be in full force and

published an invitation to apply for eligibility and to bid for the 2010 Poll Automation Project [1] (the effect; (2) the original price for the hardware and software covered by the OTP as specified in the AES

Project). On March 18, 2009, the Comelec approved and issued a Request for Proposal[2] (RFP) for the contract shall be maintained, excluding the cost of the 920 units of PCOS and related peripherals previously

Project consisting of the following components: purchased for use in the 2010 special elections; and (3) all other services related to the 2013 AES shall be

subject to public bidding. On March 29, 2012, the Comelec issued Resolution No. 9377[10]resolving to
Component 1: Paper-Based Automation Election System (AES)
accept Smartmatic-TIMs offer to extend the period to exercise the OTP until March 31, 2012 and to
1-A. Election Management System (EMS)
1-B. Precinct Count Optical Scan (PCOS) System authorize Chairman Brillantes to sign for and on behalf of the Comelec the Agreement on the Extension of
1-C. Consolidation/Canvassing System (CCS)
the OTP Under the AES Contract[11] (Extension Agreement, for brevity). The aforesaid Extension Agreement
Component 2: Provision for Electronic Transmission of Election Results using Public was signed on March 30, 2012.[12] On even date, the Comelec issued Resolution No. 9378[13] resolving to
Telecommunications Network
approve the Deed of Sale between the Comelec and Smartmatic-TIM to purchase the latters PCOS
Component 3: Overall Project Management[3]
machines (hardware and software) to be used in the upcoming May 2013 elections and to authorize

On June 9, 2009, the Comelec issued Resolution No. 8608 awarding the contract for the Project Chairman Brillantes to sign the Deed of Sale for and on behalf of the Comelec. The Deed of Sale[14] was

to respondent Smartmatic-TIM.[4] On July 10, 2009, the Comelec and Smartmatic-TIM entered into forthwith executed.

a Contract for the Provision of an Automated Election System for the May 10, 2010 Synchronized National

and Local Elections,[5] (AES Contract, for brevity). The contract between the Comelec and Smartmatic-TIM Claiming that the foregoing issuances of the Comelec, as well as the transactions entered

was one of lease of the AES with option to purchase (OTP) the goods listed in the contract. In said contract, pursuant thereto, are illegal and unconstitutional, petitioners come before the Court in four separate

the Comelec was given until December 31, 2010 within which to exercise the option. Petitions for Certiorari, Prohibition, and Mandamus imputing grave abuse of discretion amounting to lack

or excess of jurisdiction on the part of the Comelec in issuing the assailed Resolutions and in executing the

On September 23, 2010, the Comelec partially exercised its OTP 920 units of PCOS machines with assailed Extension Agreement and Deed.

corresponding canvassing/consolidation system (CCS) for the special elections in certain areas in the

provinces of Basilan, Lanao del Sur and Bulacan.[6] In a letter[7] dated December 18, 2010, Smartmatic-TIM, G.R. No. 201112

through its Chairman Cesar Flores (Flores), proposed a temporary extension of the option period on the
In G.R. No. 201112, petitioners Archbishop Fernando R. Capalla, Omar Solitario Ali and Mary
remaining 81,280 PCOS machines until March 31, 2011, waiving the storage costs and covering the
Anne L. Susano pray that a Temporary Restraining Order (TRO) be issued enjoining the Comelec from
maintenance costs. The Comelec did not exercise the option within the extended period. Several
purchasing the PCOS machines until after final judgment of the instant case; a writ of prohibition be issued
extensions were given for the Comelec to exercise the OTP until its final extension on March 31, 2012.
against the Comelec for the purchase of these defective PCOS machines; a writ of mandamus be issued

compelling the Comelec to conduct the necessary bidding for the equipment and facilities which shall be
On March 6, 2012, the Comelec issued Resolution No. 9373[8] resolving to seriously consider
used for the 2013 National and Local Elections; and to declare Comelec Resolution Nos. 9376, 9377, and
exercising the OTP subject to certain conditions. On March 21, 2012, the Comelec issued Resolution No.
9378, on the purchase of PCOS machines, null and void.
9376[9] resolving to exercise the OTP the PCOS and CCS hardware and software in accordance with the AES

contract between the Comelec and Smartmatic-TIM in connection with the May 10, 2010 elections subject
 Petitioners argue that if there is a necessity to purchase the PCOS machines, the Comelec entire election process. The purchase of the PCOS machines for use in the May 2013 elections would be

should follow RA 9184 requiring competitive public bidding. They likewise argue that the OTP clause tantamount to a complete surrender and abdication of the Comelecs constitutional mandate in favor of

embodied in the contract with Smartmatic-TIM should be rendered invalid not only because the OTP has Smartmatic-TIM. The control of the software and process verification systems places the Comelec at the

already lapsed but because of the fact that the OTP clause is a circumvention of the explicit provisions of end of the process as it merely receives the report of Smartmatic-TIM. This, according to petitioners,

RA 9184. Petitioners add that the current PCOS machines do not meet the rigorous requirements of RA amounts to a direct transgression of the exclusive mandate of the Comelec completely to take charge of

9369 that the system procured must have demonstrated capability and should have been successfully used the enforcement and administration of the conduct of elections. [19] Lastly, petitioners aver that the

in a prior electoral exercise here or abroad. Petitioners submit that there are intrinsic technical infirmities Comelecs act of deliberately ignoring the palpable infirmities and defects of the PCOS machines, as duly

as regards the PCOS machines used during the 2010 elections which rendered it incapable for future use. confirmed by forensic experts, is in violation of Section 2, Article V of the Constitution, as it fails to

Lastly, petitioners claim that the Comelec does not have the capability to purchase and maintain the PCOS safeguard the integrity of the votes. They went on by saying that the subject PCOS machines lack security

machines, because of lack of trained manpower and technical expertise to properly maintain the PCOS features which can guaranty the secrecy and sanctity of our votes in direct contravention of RA 9369 which

machines; thus, the purchase is unfavorable to the general public. requires that the automated election system must at least possess an adequate security feature against

unauthorized access. In deciding to purchase the PCOS machines despite the above-enumerated defects,

G.R. No. 201121 the Comelecs decision are claimed to be unconstitutional.[20]

In G.R. No. 201121, petitioners Solidarity for Sovereignty (S4S), represented by Ma. Linda Olaguer, Ramon
G.R. No. 201127
Pedrosa, Benjamin Paulino, Sr., Evelyn Coronel, Ma. Linda Olaguer Montayre and Nelson T. Montayre, pray

that a TRO be issued directing the Comelec to desist from implementing the contract; that Resolution No. In G.R. No. 201127, petitioners Teofisto Guingona, Bishop Broderick S. Pabillo, Solita Collas Monsod, Maria

9376 be declared unconstitutional and all acts made pursuant thereto, including the purchase of the PCOS Corazon Mendoza Acol, Fr. Jose Dizon, Nelson Java Celis, Pablo R. Manalastas, Georgina R. Encanto and

machines unlawful and void; that an Injunction be issued prohibiting the Comelec from further pursuing Anna Leah E. Colina pray that the Court issue a TRO enjoining and restraining respondents Comelec and

any act pursuant to Resolution No. 9376.[15] Smartmatic-TIM from implementing Comelec Resolution No. 9376 and the Deed of Sale for the acquisition

and purchase of the PCOS machines and related equipment; issue writ of preliminary injunction; declare

Petitioners argue that the Comelecs act of exercising its OTP the PCOS machines from Comelec Resolution No. 9376 void and unconstitutional and annul the Deed of Sale; and direct the

Smartmatic-TIM after the period had already lapsed is illegal and unlawful.[16] They explain that the period Comelec to conduct public bidding soonest for the automated election system to be used for the 2013

within which the Comelec may exercise the OTP could last only until December 31, 2010 without extension elections.[21]

as provided in the Comelecs bid bulletin.[17] They further assert that the Comelecs acceptance of

Smartmatic-TIMs unilateral extension of the option period constitutes substantial amendment to the AES Petitioners fault the Comelec in totally disregarding the recommendation of the Comelec

contract giving undue benefit to the winning bidder not available to the other bidders.[18] Petitioners also Advisory Council (CAC) not to exercise the OTP. They point out that in its Resolution No. 2012-2003, the

contend that the Comelecs decision to purchase and use the PCOS machines is unconstitutional, as it CAC resolved to recommend that the Comelec should exert all efforts to procure the necessary AES only

allows the Comelec to abrogate its constitutional duty to safeguard the election process by subcontracting through public bidding. The CAC likewise allegedly recommended that the OTP should not be exercised if

the same to an independent provider (Smartmatic-TIM), who controls the software that safeguards the as a consequence, the rest of the system must come from the same vendor as the Comelec would lose the
opportunity to look for better technology; would prevent the Comelec from taking advantage of the best
possible technology available; would prevent other prospective vendors from competitively participating
in the bidding process; and may erode the public trust and confidence in the electoral process. In its report
to the Congressional Oversight Committee after the 2010 elections, the CAC supposedly concluded that
the Comelec does not need to use the same PCOS machines and that the Comelec would be better off not
exercising the OTP the PCOS machines so it can look for an even better solution for the May 2013
elections.[22] Like the other petitioners, it is their position that Comelec Resolution No. 9376 is totally null
and void having been issued in violation of the express provisions of RA 9184 and the AES contract.
According to petitioners, the Comelec itself provided in its bid bulletins for a fixed and determinate period,
and such period ended on December 31, 2010.Thus, Smartmatic-TIM could not have unilaterally extended
the option period and the Comelec could not have also given its consent to the extension. In extending
the option period, it is tantamount to giving the winning bidder a benefit that was not known and available
to all bidders during the bidding of the 2010 AES, which is a clear violation of the bidding rules and the
equal protection clause of the Constitution.[23] Considering that the option period already expired, the
purchase of the PCOS machines requires competitive public bidding. Lastly, petitioners claim that the
Comelec committed grave abuse of discretion in opting to buy the PCOS machines and allied paraphernalia
of Smartmatic-TIM for the 2013 elections, despite incontrovertible findings of the glitches, malfunctions,
bugs, and defects of the same.[24]
G.R. No. 201418
In G.R. No. 201418, petitioners Tanggulang Demokrasya (Tan Dem), Inc., Evelyn L. Kilayko,
Teresita D. Baltazar, Pilar L. Calderon and Elita T. Montilla pray that the Court annul Resolution No. 9376
and the March 30, 2012 Deed of Sale, and prohibit the Comelec and Smartmatic-TIM from implementing
the same; and declare said Resolution and Deed of Sale invalid for having been issued and executed by the
Comelec with grave abuse of discretion and for violating the provisions of R.A. 9184.[25]
Petitioners claim that the Comelec committed grave abuse of discretion amounting to lack or
excess of jurisdiction in contracting for the purchase of AES goods and services from Smartmatic-TIM in
spite of the below par performance of the latters PCOS machines, CCS and other software and hardware
in the May 2010 elections and non-compliance with the minimum functional capabilities required by
law.[26] They echo the other petitioners contention that the Comelecs decision to buy the CCS, PCOS
machines, software and hardware of Smartmatic violates RA 9184s requirement of a prior competitive
public bidding. Since the Comelec is bent on pursuing the purchase of the subject goods, which is an
entirely new procurement, petitioners contend that there must be a public bidding. They argue that there
is enough time to conduct public bidding for the 2013 elections, considering that for the May 2010
elections, the Comelec only had 10 months and they were able to conduct the public bidding. Petitioners
are of the view that there is no more OTP to speak of, because the option period already lapsed and could
not be revived by the unilateral act of one of the contracting parties.[27]
On April 24, 2012, the Court issued a TRO enjoining the implementation of the assailed contract
of sale. The consolidated cases were later set for Oral Arguments on the following issues:
I. Whether or not the Commission on Elections may validly accept the
extension of time unilaterally given by Smartmatic-TIM Corporation within which to
exercise the option to purchase under Article 4 of the Contract for the Provision of
an Automated Election System for the May 2010 Synchronized National and Local
Elections; and
II. Whether or not the acceptance of the extension and the issuance of
Comelec En Banc Resolution No. 9376 violate Republic Act No. 9184 or the
Government Procurement Reform Act and its Implementing Rules, and Republic Act
No. 9369 or the Automated Election Systems Act.
The parties were, thereafter, required to submit their Memoranda.
The petitions are without merit.
Simply stated, petitioners assail the validity and constitutionality of the Comelec Resolutions
for the purchase of the subject PCOS machines as well as the Extension Agreement and the Deed of Sale
covering said goods mainly on three grounds: (1) the option period provided for in the AES contract
between the Comelec and Smartmatic-TIM had already lapsed and, thus, could no longer be extended,
such extension being prohibited by the contract; (2) the extension of the option period and the exercise
of the option without competitive public bidding contravene the provisions of RA 9184; and, (3) despite
the palpable infirmities and defects of the PCOS machines, the Comelec purchased the same in
contravention of the standards laid down in RA 9369.
 bungled contract after another, in staggering amounts, is in itself a matter of grave
public concern.[29]

For its part, the Comelec defends the validity and constitutionality of its decision to purchase the subject
Thus, in view of the compelling significance and transcending public importance of the issues raised by
PCOS machines, pursuant to the OTP under the AES contract with Smartmatic-TIM, on the following
petitioners, the technicalities raised by respondents should not be allowed to stand in the way, if the ends
grounds: (1) Article 6.6 of the AES contract which states the option period was amended by the extension
of justice would not be subserved by a rigid adherence to the rules of procedure.[30]
agreement; (2) the exercise of the OTP is not covered by RA 9184, because it is merely an implementation

of a previously bidded contract; (3) taking into account the funds available for the purpose, exercising the
Now on the substantive issues. In order to achieve the modernization program of the Philippine
OTP was the prudent choice for the Comelec and is more advantageous to the government; and (4) the
Electoral System, which includes the automation of the counting, transmission and canvassing of votes for
exercise of the OTP is consistent with the technical requirements of RA 9369.
the May 2010 national and local elections with systems integration and over-all project management in a

comprehensive and well-managed manner,[31] the Comelec entered into an AES contract with Smartmatic-
Stated in another way, Smartmatic-TIM insists on the validity of the subject transaction based
TIM for the lease of goods and purchase of services under the contract, with option to purchase the goods.
on the following grounds: (1) there is no prohibition either in the contract or provision of law for it to

extend the option period; rather, the contract itself allows the parties to amend the same; (2) the OTP is
The option contract between the Comelec and Smartmatic-TIM is embodied in Article 4.3 of
not an independent contract in itself, but is a provision contained in the valid and existing AES contract
the AES contract to wit:
that had already satisfied the public bidding requirements of RA 9184; (3) exercising the option was the

most advantageous option of the Comelec; and (4) Smartmatic-TIM has an established track record in Article 4
Contract Fee and Payment
providing effective and accurate electoral solutions and its satisfactory performance has been proven

during the 2010 elections. The alleged glitches in the May 2010 elections, if at all, are not attributable to xxxx

the PCOS machines. 4.3. OPTION TO PURCHASE

We agree with respondents.
At the outset, we brush aside the procedural barriers (i.e., locus standi of petitioners and the non-
observance of the hierarchy of courts) that supposedly prevent the Court from entertaining the
consolidated petitions. As we held in Guingona, Jr. v. Commission on Elections:[28]
There can be no doubt that the coming 10 May 2010 [in this case, May 2013]
elections is a matter of great public concern. On election day, the country's
registered voters will come out to exercise the sacred right of suffrage. Not only is
it an exercise that ensures the preservation of our democracy, the coming elections
also embodies our people's last ounce of hope for a better future. It is the final
opportunity, patiently awaited by our people, for the peaceful transition of power
to the next chosen leaders of our country. If there is anything capable of directly
affecting the lives of ordinary Filipinos so as to come within the ambit of a public
concern, it is the coming elections, more so with the alarming turn of events that
continue to unfold. The wanton wastage of public funds brought about by one
In the event the COMELEC exercises its option to purchase the Goods as listed in
Annex L, COMELEC shall pay the PROVIDER an additional amount of Two Billion One
Hundred Thirty Million Six Hundred Thirty- Five Thousand Forty-Eight Pesos and
Fifteen Centavos (Php2,130,635,048.15) as contained in the Financial Proposal of
the joint venture partners Smartmatic and TIM.
In case COMELEC should exercise its option to purchase, a warranty shall be
required in order to assure that: (a) manufacturing defects shall be corrected;
and/or (b) replacements shall be made by the PROVIDER, for a minimum period of
three (3) months, in the case of supplies, and one (1) year, in the case of equipment,
after performance of this Contract. The obligation for the warranty shall be covered
by retention money of ten percent (10%) of every option to purchase payment
made.
The retention money will be returned within five (5) working days after the
expiration of the above warranty, provided, however, that the goods supplied are
in good operating condition free from patent and latent defects, all the conditions
imposed under the purchase contract have been fully met, and any defective
machines, except to those attributable to the COMELEC, have been either repaired
at no additional charge or replaced or deducted from the price under the Option to
Purchase.[32]

Article 6.6 thereof, in turn provides for the period within which the Comelec could exercise the
option, thus:
Article 6
COMELECs Responsibilities
xxxx
6.6. COMELEC shall notify the PROVIDER on or before 31 December 2010 of its
option to purchase the Goods as listed in Annex L.[33]
The Comelec did not exercise the option within the period stated in the above provision. Smartmatic,
however, unilaterally extended the same until its final extension on March 31, 2012. The Comelec,
thereafter, accepted the option and eventually executed a Deed of Sale involving said goods. Now,
petitioners come before the Court assailing the validity of the extension, the exercise of the option and
the Deed of Sale. In light of the AES contract, can Smartmatic-TIM unilaterally extend the option period?
Can the Comelec accept the extension?
We answer in the affirmative.
It is a basic rule in the interpretation of contracts that an instrument must be construed so as to give effect
to all the provisions of the contract.[34] In essence, the contract must be read and taken as a whole.[35] While
the contract indeed specifically required the Comelec to notify Smartmatic-TIM of its OTP the subject
goods until December 31, 2010, a reading of the other provisions of the AES contract would show that the
parties are given the right to amend the contract which may include the period within which to exercise
the option. There is, likewise, no prohibition on the extension of the period, provided that the contract is
still effective.
Article 2 of the AES contract lays down the effectivity of the contract, viz.:
Article 2
EFFECTIVITY
2.1. This Contract shall take effect upon the fulfillment of all of the following
conditions:
(a) Submission by the PROVIDER of the Performance Security;
(b) Signing of this Contract in seven (7) copies by the parties;
and
(c) Receipt by the PROVIDER of the Notice to Proceed.
2.2. The Term of this Contract begins from the date of effectivity until the release
of the Performance Security, without prejudice to the surviving provisions of this
Contract, including the warranty provision as prescribed in Article 8.3 and the
period of the option to purchase (Emphasis supplied).[36]
Obviously, the contract took effect even prior to the 2010 elections. The only question now is whether its
existence already ceased. Pursuant to the above-quoted provision, it is important to determine whether
or not the performance security had already been released to Smartmatic-TIM. In Article 8 of the AES
contract, performance security was defined and the rules in releasing said security were laid down, to wit:
Article 8
Performance Security and Warranty
8.1. Within three (3) days from receipt by the PROVIDER of the formal Notice of
Award from COMELEC, the PROVIDER shall furnish COMELEC with a Performance
Security in an amount equivalent to five percent (5%) of the Contract Amount; which
Performance Security as of this date has been duly received by COMELEC.
Within seven (7) days from delivery by the PROVIDER to COMELEC of the Over-all
Project Management Report after successful conduct of the May 10, 2010 elections,
COMELEC shall release to the PROVIDER the above-mentioned Performance
Security without need of demand.[37]
Smartmatic-TIM categorically stated in its Consolidated Comment to the petitions that the Comelec still
retains P50M of the amount due Smartmatic-TIM as performance security.[38] In short, the performance
security had not yet been released to Smartmatic-TIM which indicates that the AES contract is still effective
and not yet terminated. Consequently, pursuant to Article 19[39] of the contract, the provisions thereof
may still be amended by mutual agreement of the parties provided said amendment is in writing and
signed by the parties. In light of the provisions of the AES contract, there is, therefore, nothing wrong with
the execution of the Extension Agreement.
Considering, however, that the AES contract is not an ordinary contract as it involves procurement by a
government agency, the rights and obligations of the parties are governed not only by the Civil Code but
also by RA 9184. In this jurisdiction, public bidding is the established procedure in the grant of government
contracts. The award of public contracts, through public bidding, is a matter of public policy.[40] The parties
are, therefore, not at full liberty to amend or modify the provisions of the contract bidded upon.
The three principles of public bidding are: (1) the offer to the public; (2) an opportunity for competition; were not previously available at the time of the bidding. Such a public bidding will not inure to the public

and (3) a basis for the exact comparison of bids.[41] By its very nature, public bidding aims to protect public good.[49]

interest by giving the public the best possible advantages through open competition. [42] Competition
In Power Sector Assets and Liabilities Management Corporation (PSALM) v. Pozzolanic
requires not only bidding upon a common standard, a common basis, upon the same thing, the same
Philippines Incorporated,[50] the Court nullified the right of first refusal granted to respondent therein in
subject matter, and the same undertaking, but also that it be legitimate, fair and honest and not designed
the Batangas Contract for being contrary to public policy. The Court explained that the same violated the
to injure or defraud the government.[43] The essence of competition in public bidding is that the bidders
requirement of competitive public bidding in the government contract, because the grant of the right of
are placed on equal footing which means that all qualified bidders have an equal chance of winning the
first refusal did not only substantially amend the terms of the contract bidded upon so that resultantly the
auction through their bids.[44] Another self-evident purpose of public bidding is to avoid or preclude
other bidders thereto were deprived of the terms and opportunities granted to respondent therein after
suspicion of favoritism and anomalies in the execution of public contracts.[45]
it won the public auction, but also altered the bid terms by effectively barring any and all true bidding in

A winning bidder is not precluded from modifying or amending certain provisions of the contract bidded the future.[51]

upon. However, such changes must not constitute substantial or material amendments that would alter
Also in Agan, Jr. v. Philippine International Air Terminals Co., Inc., (PIATCO), [52] this Court
the basic parameters of the contract and would constitute a denial to the other bidders of the opportunity
declared as null and void, for being contrary to public policy, the Concession Agreement entered into by
to bid on the same terms.[46] The determination of whether or not a modification or amendment of a
the government with PIATCO, because it contained provisions that substantially departed from the Draft
contract bidded out constitutes a substantial amendment rests on whether the contract, when taken as a
Concession Agreement included in the bid documents. The Court considered the subject contracts a
whole, would contain substantially different terms and conditions that would have the effect of altering
mockery of the bidding process, because they were substantially amended after their award to the
the technical and/or financial proposals previously submitted by the other bidders. The modifications in
successful bidder on terms more beneficial to PIATCO and prejudicial to public interest.[53]
the contract executed between the government and the winning bidder must be such as to render the

executed contract to be an entirely different contract from the one bidded upon.[47] The same conclusions cannot be applied in the present case.

Public bidding aims to secure for the government the lowest possible price under the most One. Smartmatic-TIM was not granted additional right that was not previously available to the other

favorable terms and conditions, to curtail favoritism in the award of government contracts and avoid bidders. Admittedly, the AES contract was awarded to Smartmatic-TIM after compliance with all the

suspicion of anomalies, and it places all bidders in equal footing. Any government action which permits requirements of a competitive public bidding. The RFP, Bid Bulletins and the AES contract identified the

any substantial variance between the conditions under which the bids are invited and the contract contract as one of lease with option to purchase. The AES contract is primarily a contract of lease of

executed after the award thereof is a grave abuse of discretion amounting to lack or excess of jurisdiction goods[54] listed in the contract and purchase of services[55] also stated in the contract. Section 4.3 thereof

which warrants proper judicial action.[48] If this flawed process would be allowed, public bidding will cease gives the Comelec the OTP the goods agreed upon. The same provision states the conditions in exercising

to be competitive, and worse, government would not be favored with the best bid. Bidders will no longer the option, including the additional amount that the Comelec is required to pay should it exercise such

bid on the basis of the prescribed terms and conditions in the bid documents but will formulate their bid right. It is, therefore, undisputed that this grant of option is recognized by both parties and is already a

in anticipation of the execution of a future contract containing new and better terms and conditions that part of the principal contract of lease. Having been included in the RFP and the bid bulletins, this right

given to the Comelec to exercise the option was known to all the bidders and was considered in preparing
their bids. The bidders were apprised that aside from the lease of goods and purchase of services, their
proposals should include an OTP the subject goods. Although the AES contract was amended after the
award of the contract to Smartmatic-TIM, the amendment only pertains to the period within which the
Comelec could exercise the option because of its failure to exercise the same prior to the deadline
originally agreed upon by the parties. Unlike in PSALM, wherein the winning bidder was given the right of
first refusal which substantially amended the terms of the contract bidded upon, thereby depriving the
other bidders of the terms and opportunities granted to winning bidder after it won the public auction;
and in Agan, Jr., wherein the Concession Agreement entered into by the government with PIATCO
contained provisions that substantially departed from the draft Concession Agreement included in the bid
documents; the option contract in this case was already a part of the original contract and not given only
after Smartmatic-TIM emerged as winner. The OTP was actually a requirement by the Comelec when the
contract of lease was bidded upon. To be sure, the Extension Agreement does not contain a provision
favorable to Smartmatic-TIM not previously made available to the other bidders.
Two. The amendment of the AES contract is not substantial. The approved budget for the contract
was P11,223,618,400.00[56] charged against the supplemental appropriations for election modernization.
Bids were, therefore, accepted provided that they did not exceed said amount. After the competitive
public bidding, Smartmatic-TIM emerged as winner and the AES contract was thereafter executed. As
repeatedly stated above, the AES contract is a contract of lease with OTP giving the Comelec the right to
purchase the goods agreed upon if it decides to do so. The AES contract not only indicated the contract
price for the lease of goods and purchase of services which is P7,191,484,739.48, but also stated the
additional amount that the Comelec has to pay if it decides to exercise the option which
is P2,130,635,048.15. Except for the period within which the Comelec could exercise the OTP, the terms
and conditions for such exercise are maintained and respected. Admittedly, the additional amount the
Comelec needed to pay was maintained (less the amount already paid when it purchased 920 units of
PCOS machines with corresponding CCS for the special elections in certain areas in the provinces of Basilan,
Lanao del Sur and Bulacan) subject to the warranties originally agreed upon in the AES contract. The
contract amount not only included that for the contract of lease but also for the OTP. Hence, the
competitive public bidding conducted for the AES contract was sufficient. A new public bidding would be
a superfluity.
The Solicitor General himself clarified during the oral arguments that the purchase price of the remaining
PCOS machines stated in the assailed Deed of Sale was the price stated in Article 4.3 of the AES contract.
Therefore, the said amount was already part of the original amount bidded upon in 2009 for the AES
contract which negates the need for another competitive bidding.[57]
Third. More importantly, the amendment of the AES contract is more advantageous to the
Comelec and the public.
The nature of an option contract was thoroughly explained in Eulogio v. Apeles,[58] to wit:
An option is a contract by which the owner of the property agrees with
another person that the latter shall have the right to buy the former's property at a
fixed price within a certain time. It is a condition offered or contract by which the
owner stipulates with another that the latter shall have the right to buy the property
at a fixed price within a certain time, or under, or in compliance with certain terms
and conditions; or which gives to the owner of the property the right to sell or
demand a sale. An option is not of itself a purchase, but merely secures the privilege
to buy. It is not a sale of property but a sale of the right to purchase. It is simply a
contract by which the owner of the property agrees with another person that he
shall have the right to buy his property at a fixed price within a certain time. He does
not sell his land; he does not then agree to sell it; but he does sell something, i.e., the
right or privilege to buy at the election or option of the other party. Its distinguishing
characteristic is that it imposes no binding obligation on the person holding the
option, aside from the consideration for the offer.[59]
Also in Carceller v. Court of Appeals,[60] the Court described an option in this wise:
An option is a preparatory contract in which one party grants to the other, for a
fixed period and under specified conditions, the power to decide, whether or not to
enter into a principal contract. It binds the party who has given the option, not to
enter into the principal contract with any other person during the period designated
and, within that period, to enter into such contract with the one to whom the option
was granted, if the latter should decide to use the option. It is a separate agreement
distinct from the contract which the parties may enter into upon the consummation
of the option.[61]
In Adelfa Properties, Inc. v. CA,[62] the Court described an option as:
An option, as used in the law on sales, is a continuing offer or contract by which the
owner stipulates with another that the latter shall have the right to buy the property
at a fixed price within a certain time, or under, or in compliance with, certain terms
and conditions, or which gives to the owner of the property the right to sell or
demand a sale. It is sometimes called an unaccepted offer. x x x[63]
 ASSOCIATE JUSTICE PERALTA:
From the foregoing jurisprudential pronouncements, an option is only a preparatory contract and a May I just ask you, do you know the total value of the subject matter of this
contract?
continuing offer to enter into a principal contract. Under the set-up, the owner of the property, which is

Smartmatic-TIM, gives the optionee, which is the Comelec, the right to accept the formers offer to
DEAN ESPEJO:
purchase the goods listed in the contract for a specified amount, and within a specified period. Thus, the Php1.8 billion pesos, Your Honor.

Comelec is given the right to decide whether or not it wants to purchase the subject goods. It is, therefore,
ASSOCIATE JUSTICE PERALTA:
uncertain whether or not the principal contract would be entered into. The owner of the property would Youre referring to the Deed of Sale.

then have to wait for the optionee to make a decision. A longer option period would mean that more time DEAN ESPEJO:
Yes, Your Honor.
would be given to the optionee to consider circumstances affecting its decision whether to purchase the
ASSOCIATE JUSTICE PERALTA:
goods or not. On the part of Smartmatic-TIM, it would have to wait for a longer period to determine The whole, the whole equipment, subject matter of the contract.
whether the subject goods will be sold to the Comelec or not, instead of freely selling or leasing them to
DEAN ESPEJO:
other persons or governments possibly at a higher price. This is especially true in this case as the terms I think roughly, the original contract something like 10 billion I am not sure, Your
Honor.
and conditions for the exercise of the option including the purchase price, had been included in the AES
ASSOCIATE JUSTICE PERALTA:
contract previously bidded upon. The parties are bound to observe the limitations embodied therein, 10 billion pesos.

otherwise, a new public bidding would be needed. DEAN ESPEJO:

Yes, Your Honor.

ASSOCIATE JUSTICE PERALTA:

We agree with respondents that the exercise of the option is more advantageous to the Comelec, because
Okay. Now, in the original contract of July 10, 2009, the contract was not actually a
the P7,191,484,739.48 rentals paid for the lease of goods and purchase of services under the AES contract purchase contract but merely a lease contract.

was considered part of the purchase price. For the Comelec to own the subject goods, it was required to DEAN ESPEJO:
Yes, Your Honor.
pay only P2,130,635,048.15. If the Comelec did not exercise the option, the rentals already paid would just
ASSOCIATE JUSTICE PERALTA:
be one of the government expenses for the past election and would be of no use to future elections. And the lease contract is 7.1 billion.

Assuming that the exercise of the option is nullified, the Comelec would again conduct another public DEAN ESPEJO:
It says 7.1 billion.
bidding for the AES for the 2013 elections with its available budget of P7 billion. Considering that the said

amount is the available fund for the whole election process, the amount for the purchase or lease of new ASSOCIATE JUSTICE PERALTA:
Okay. But it is here [denominated] as a lease contract.
AES will definitely be less than P7 billion. Moreover, it is possible that Smartmatic-TIM would again DEAN ESPEJO:
Yes, Your Honor.
participate in the public bidding and could win at a possibly higher price. The Comelec might end up
ASSOCIATE JUSTICE PERALTA:
acquiring the same PCOS machines but now at a higher price. So the value was 10 billion pesos then you just pay the difference between ten (10)
and seven (7) you get 3 billion pesos to purchase all of these equipment.

DEAN ESPEJO:
The advantage to the government of the exercise of the OTP was even recognized by petitioners, shown Yes, Your Honor.
during the oral arguments:
ASSOCIATE JUSTICE PERALTA:
Okay. Now, you look at your Deed of Sale, this is annexed to your petition, the value
of the Deed of Sale is something like two billion one hundred thirty million
(Php2,130,000,000).
DEAN ESPEJO:
Around that much, Your Honor.
ASSOCIATE JUSTICE PERALTA:
You add this at two [billion] one hundred thirty million and so to seven billion one
ninety-one the subject matter of your original contract; you come up with
something like over 9 billion pesos.
DEAN ESPEJO:
Close to Ten, Your Honor.
ASSOCIATE JUSTICE PERALTA:
Close to Ten.
DEAN ESPEJO:
Yes, Your Honor.
ASSOCIATE JUSTICE PERALTA:
So thats practically less than the total value of the equipment, because according to
you the total value would come up to 10 billion pesos, you add up the Lease Contract
of 7 billion and two billion, plus under this Deed of Sale which is the subject matter
of this petition, you will come up with a little more than 9 billion pesos even less
than the 10 billion pesos. Do you think that is disadvantageous to the government?
DEAN ESPEJO:
May I be allowed to explain?
ASSOCIATE JUSTICE PERALTA:
Go ahead, you go ahead, you have all the time.
DEAN ESPEJO:
It may appear advantageous, Your Honor please, but on the other hand, there are
certain disadvantages there. For one thing, these are not brand new machines;
these are refurbished existing machines which could be suffering from hardware or
software problem. For the COMELEC to accept this, Your Honor please, each
machine will have to be checked as to its hardware and software. Eighty-two
thousand (82,000) PCOS machines, Your Honor please, what if half of them, [turn
out] to be white elephants or malfunctioning, Your Honor please, then we will be
acquiring eighty-two thousand (82,000) with fifty percent (50%) malfunctioning
machines. There is a danger, Your Honor please, that does not appear to the naked
eye. In any event, with respect to the financial figures there appears to be some
advantages, Your Honor, please.
ASSOCIATE JUSTICE PERALTA:
x x x these are merely speculative. Yourre only speculating that there are dangers,
the dangers might not come, in fact, it might even be void or favorable. Okay, now
my other question is, do you think that if this was bidden out under R.A. 9184 for
the purchase of all these equipment, do you think that a bidder will come up with a
bid of less than 2 billion pesos for the whole equipment? When according to you,
the equipment in 2009 is 10 billion, and elections are very near already 2013, the
filing of certificates of candidacy will be on the second to the last month of this year?
DEAN ESPEJO:
May I be allowed to answer that by way of a speculation, Your Honor.
ASSOCIATE JUSTICE PERALTA:
Go ahead, please.
DEAN ESPEJO:
I think bidder will find it difficult to match that.
xxxx
ASSOCIATE JUSTICE PERALTA:
Okay. My other question is this. Okay, now you admitted that the original
value is 10 billion. Are you also aware that the budget of the COMELEC when they
come up with this contract is 7 billion?
DEAN ESPEJO:
Yes, Your Honor.
ASSOCIATE JUSTICE PERALTA:
And the total value of the original contract is 10 billion. Do you think that the
COMELEC will have money to purchase equipment valued at 10 billion pesos with
only 7 billion pesos for the elections of 2013? Because the budget of 7 billion is not
for the purpose only of the purchase of the equipment, but also includes for the
budget of the elections, pre, during and post elections expenses.
DEAN ESPEJO:
Well, Your Honor please, the shortfall of 3 billion pesos can be remedied if Congress
will appropriate additional amounts, if the President of this Republic will convince
the legislature to appropriate an additional amount, I see no problem why the
shortfall of 3 billion cannot be remedied, Your Honor please.
ASSOCIATE JUSTICE PERALTA:
Oh, thats again speculative.
DEAN ESPEJO:
Again, thats unfortunate thats my speculation.
ASSOCIATE JUSTICE PERALTA:
You will have first to go to Congress, then you go to Senate, and then you go to the
President discounting the possibility of filing a petition to question the allocation of
additional amount for the 2013 elections, by the time that all of these exercises are
finished then election is there already.
DEAN ESPEJO:
Well, Im hopeful, Your Honor please, that our Congressmen and our Senators will
rise to the occasion and move fast and appropriate the needed amount of 3 billion
pesos to help the COMELEC acquire the proper Automated election System.
x x x[64]
Another reason posed by petitioners for their objection to the exercise of the option and the eventual
execution of the March 30, 2012 Deed of Sale is the existence of the alleged defects, glitches, and
 Why? How?
infirmities of the subject goods. The technology provided by Smartmatic-TIM was not perfect, because of
ATTY. LAZATIN:
some technical problems that were experienced during the 2010 elections. Petitioners herein doubt that Your Honor, as we explained in our presentation, the iButtons, Your Honor, contain
the digital signatures
the integrity and sanctity of the ballots are protected because of these defects.
JUSTICE CARPIO:
Yes, I understand that
We do not agree.
ATTY. LAZATIN:
and the iButtons [interrupted]

Prior to the execution of the Deed of Sale, the Comelec and Smartmatic-TIM had agreed that
the latter would undertake fixes and enhancements to the hardware and software to make sure that the
subject goods are in working condition to ensure a free, honest, and credible elections. As former
Commissioner Augusto C. Lagman admitted[65] during the oral arguments, there are possible software
solutions to the alleged problems on the PCOS machines and it is not inherently impossible to remedy the
technical problems that have been identified. While there is skepticism that Smartmatic-TIM would be
JUSTICE CARPIO:
because they are there, the machine is capable of producing digitally-signed
transmissions. But you just said that the BEI Chairman did not input their private
keys because there was no time. It requires five (5) months.
ATTY. LAZATIN:
Your Honor, as I said, there is a digital signature that was assigned to the BEIto the
BEIs, your Honor, okay. I am saying that there is digital signature. What I also said,
Your Honor, is that there is also a possibility that another digital certificate or
signature can come from another certification authority xxx

able to correct the supposed defects prior to the 2013 elections because of its inaction during the two
years prior to the exercise of the option, we agree with the opinion of Chairman Sixto S. Brillantes, Jr. that
it is absurd to expect Smartmatic-TIM to invest time, money and resources in fixing the PCOS machines to
the specifications and requirements of the Comelec when prior to the exercise of the OTP, they do not
have the assurance from the Comelec that the latter will exercise the option.[66]
Moreover, as to the digital signature which appears to be the major concern of petitioners, it
has been clarified during the oral arguments that the PCOS machines are capable of producing digitally-
signed transmissions:
JUSTICE CARPIO:
No, thats a third partythats a third-party certifier, but thats an option. The law does
not require a third-party certification. It merely says that transmission must be
digitally signed.
ATTY. LAZATIN:
Thats right.
JUSTICE CARPIO:
Thats why Chairman Melo told Congress that it will cost one (1) billion to get a third-
party certifier, but the law does not require it even now, if you said in your
presentation that the BEI Chairman could not input their private key, thats
generated because it takes five (5) months to do that and the list of BEI Chairman is
known only one (1) month before the election, then how could there be a digital
signature?

JUSTICE CARPIO: ATTY. LAZATIN:

I have some questions. Counsel, the law requires that the election returns that are Your Honor, as I mentioned it is anot a customized or personal digital signature. It is
electronically transmitted must be digitally signed, correct? a digital signature that is assigned by COMELEC.

ATTY. LAZATIN: JUSTICE CARPIO:

Thats right, Your Honor. Assigned by COMELEC? How canwho inputs that digital signature?

JUSTICE CARPIO: ATTY. LAZATIN:

Now, but in the 2010 elections, all election returns electronically It is cranked out, Your Honor, and
transmitted were NOT digitally signed, correct?
JUSTICE CARPIO:
ATTY. LAZATIN: No, yourit is trusted that the list of the BEI Chairman is known only one (1) month
before, so how can the BEI Chairman input their digital signature five (5) months
They were, Your Honors, please before?

JUSTICE CARPIO: ATTY. LAZATIN:

As I said, Your Honor, it is not a personal or customized signature. It is just like
ATTY. LAZATIN:
JUSTICE CARPIO: Again, Your Honor, as I said
It is a machine ID, in other words?
JUSTICE CARPIO:
ATTY. LAZATIN: Did the BEI Chairman know what that private key is?
No, let me explain it this way, Your Honor. The best example I can give, Your Honor,
is ATTY. LAZATIN:
Your Honor, allow me to explain, Your Honor. The names, Your Honor, or the private
JUSTICE CARPIO: keys arewere assigned to the BEIs Your Honor. In the same way, Your Honor, in the
Okay, let us define first what a digital signature means. office my code name, Your Honor, or assigned to me is 00 xxx

ATTY. LAZATIN: JUSTICE CARPIO:

The Rules of Court, Your Honor, defines digital signature as the first one it is You mean to say the private key is embedded in the machine?
electronic signature consisting of a transformation of an electronic document or an ATTY. LAZATIN:
electronic data message using an asymmetric or public Cryptosystem such that a No, Your Honor, it is embedded in the iButton and they are given a x x x
person having the initial untransformed electronic document and the signers public
key can accurately determine: (i) whether the transformation was created using the JUSTICE CARPIO:
private key that corresponds to the signers public key; and (ii) whether the initial Yes, in the machinethe iButton is in the machine.
electronic document has been altered after the transformation was made.
ATTY. LAZATIN:
JUSTICE CARPIO: No, Your Honor.
Therefore, digital signature requires private key and public key
JUSTICE CARPIO:
ATTY. LAZATIN: Where is it?
Yes, Your Honor.
ATTY. LAZATIN:
JUSTICE CARPIO: It is a gadget, Your Honors, that is usedit is a separate gadget, your Honor xxx This
and this private key and public key are generated by an algorithm, correct? is a sample of an iButton, your Honor, and in fact we said that we are prepared to
demonstrate, Your Honor, and to show to this Court
ATTY. LAZATIN:
Yes, thats right, Your Honor. xxxx

JUSTICE CARPIO: JUSTICE CARPIO:

And there is another algorithm which, if you matchif you put together the private On election Day, where was the iButton placed? In the machine?
key and the message, will generate the signature.
ATTY. LAZATIN: ATTY. LAZATIN:
Thats right, Your Honor. To start the machine, Your Honor, you have to put it on top of that Button xxx

JUSTICE CARPIO: JUSTICE CARPIO:

In other words, whoever is in possession of that iButton can make a digitally-
And the third algorithm, that if you put together the public key and the signature it transmitted election return, correct?
will accept or reject the message, thats correct?
ATTY. LAZATIN:
ATTY. LAZATIN: Thats correct, Your Honor. Your Honor, together with the other BEIs because apart
Thats correct, Your Honor. from this iButton, Your Honor, for authentication the BEIs, three of them, Your
Honor, have an 8-digit PIN, Your Honor.
JUSTICE CARPIO:
Now, was that used in the 2010 elections? JUSTICE CARPIO:
How is that 8-digit PIN given to them?
ATTY. LAZATIN:
Yes, your Honor. ATTY. LAZATIN:
In a sealed envelope, Your Honor, these are x x x
JUSTICE CARPIO: JUSTICE CARPIO:
How was that private key generated? And then they also input that in the keyboard?
 ATTY. LAZATIN:
ATTY. LAZATIN: Thats correct. In the same way, Your Honor, that even if someone keeps his key or
Yes, Your Honor. private key, Your Honor, if he is under threat he will also divulge it, Your Honor. Its
the same.
JUSTICE CARPIO:
In the display? JUSTICE CARPIO:
Okay, so whoever wants to send it, he will have to get the private key from the BEI
ATTY. LAZATIN: Chairman and the PIN numbers from the other members
Yes, Your Honor.
JUSTICE CARPIO: ATTY. LAZATIN:
So, that iButton contains the private key? Yes, Your Honor.

ATTY. LAZATIN: JUSTICE CARPIO:

Yes, Your Honor, thats my understanding. before they can send the electronic transmission.

JUSTICE CARPIO: ATTY. LAZATIN:

And who controls the public key? Who control[led] the public key in the last Yes, Your Honor.
election?
JUSTICE CARPIO:
ATTY. LAZATIN: Okay. That clarifies things. x x x[67]
My understanding, Your honor, is COMELEC, your Honor.

JUSTICE CARPIO: As the Comelec is confronted with time and budget constraints, and in view of the Comelecs
COMELEC had the public key?
mandate to ensure free, honest, and credible elections, the acceptance of the extension of the option
ATTY. LAZATIN:
period, the exercise of the option, and the execution of the Deed of Sale, are the more prudent choices
Thats my understanding, Your Honor.
available to the Comelec for a successful 2013 automated elections. The alleged defects in the subject
JUSTICE CARPIO:
And there was no certifying agency because it cost too much and the law did not goods have been determined and may be corrected as in fact fixes and enhancements had been
require that?
undertaken by Smartmatic-TIM. Petitioners could not even give a plausible alternative to ensure the
ATTY. LAZATIN:
Thats correct, Your Honor. But the machine, Your Honor, as I mentioned, is capable conduct of a successful 2013 automated elections, in the event that the Court nullifies the Deed of Sale.
of accepting any number of digital signatures whether self-generated or by a third-
party certification authority, Your Honor.

JUSTICE CARPIO: WHEREFORE, premises considered, the petitions are DISMISSED. The Temporary Restraining Order issued
Okay. So, whoever is in possession of that iButton and in possession of the four (4)
by the Court on April 24, 2012 is LIFTED.
PINS, the set of PINs, for the other BEI number, can send a transmission?

ATTY. LAZATIN: SO ORDERED.

Yes, Your Honor.

JUSTICE CARPIO:
The moment you are in possession of the iButton and the four (4) sets of
PINs

ATTY. LAZATIN:
Thats correct, Your Honor.

JUSTICE CARPIO:
If they can send an electronic transmission thats digitally signed and when received
by the COMELEC and matched with the public key will result with an official election
return, correct?
As COMELEC is confronted with time and budget constraints, and in view
of COMELEC’s mandate to ensure free, honest, and credible elections,
the acceptance of the extension of the option period, the exercise of the option, and the execution
of the Deed of Sale, are the more prudent choices available to COMELEC for a successful 2013
automated elections. (Capalla, et. al. v. COMELEC, G.R. No. 201121/201127/201413, 13 June 2012)
Capalla v. Commissions on Elections, G.R. No. 201112, 13 June 2012.
31
JUL
[FACTS: on issue of digital signatures; based on transcription in the case]
During the oral arguments of the case in the Supreme Court, it was challenged that PCOS machines
do not comply with the requirement of the law on automated elections that electronic transmissions
must be digitally signed. Contrary to the belief of Justice Carpio, Atty. Lazatin explained that the
2010 automated elections already used digital signatures. According to Atty. Lazatin, such digital
signatures were contained in iButtons (gadget). Justice Carpio asked how were it possible if Board
of Election Inspectors (BEIs) did not input their private keys because allegedly there was no time and
it would require five (5) months. Atty. Lazatin clarified that it was not a customized or personal digital
signature but assigned by the COMELEC.
ISSUE
Whether or not the PCOS machines are capable of producing digitally signed-transmissions as
required by law.
HELD
YES.
The Rules of Court, defines digital signature as the first one it is electronic signature consisting of a
transformation of an electronic document or an electronic data message using an asymmetric or
public cryptosystem such that a person having the initial untransformed electronic document and
the signers public key can accurately determine: (i) whether the transformation was created using
the private key that corresponds to the signers public key; and (ii) whether the initial electronic
document has been altered after the transformation was made.
Digital signature requires private key and public key generated by an algorithm. There is another
algorithm (second) which, if you match if you put together the private key and the message, will
generate the signature. The third algorithm, that if you put together the public key and the signature
it will accept or reject the message.
In the 2010 elections for example, the private key is embedded in the iButtons which are used to
start the PCOS machines. For authentication, all of the three BEIs are required. Each of them has an
8-digit PIN given to them in a sealed envelope. The COMELEC on the other hand controls the public
key. Whoever in possession of the iButton and in possession of the set of PINs can send a
transmission. Whoever wants to send transmission, he will have to get the private key from the BEI
Chairman and the PIN numbers from the other members. If they can send an electronic transmission
that’s digitally signed and when received by the COMELEC and matched with the public key will
result with an official election return. Hence the statutory requirement of digital signature is
complied accordingly.
Capalla v. COMELEC
G.R. No. 201112, 23 October 2012
FACTS:
The Comelec and Smartmatic-TIM entered into a Contract for the Provision of an Automated
Election System for the May 10, 2010 Synchronized National and Local Elections (AES Contract)
which is a Contract of Lease with Option to Purchase (OTP) the goods listed therein consisting of
the Precinct Count Optical Scan (PCOS), both software and hardware. The Comelec opted not to
exercise the same except for 920 units of PCOS machines. Subsequently, the Comelec issued
Resolution resolving to seriously consider exercising the OTP subject to certain conditions. It
issued another Resolution resolving to exercise the OTP in accordance with the AES
Contract.Later, the COMELEC issued Resolution resolving to accept Smartmatic-TIM’s offer to
extend the period to exercise the OTP. The agreement on the Extension of the OTP under the
AES Contract (Extension Agreement) was eventually signed. Finally, it issued Resolution
resolving to approve the Deed of Sale between the Comelec and Smartmatic-TIM to purchase the
latter’s PCOS machines to be used in the upcoming elections. The Deed of Sale was forthwith
executed.
ISSUE:
Whether or not assailed resolutions and transactions entered are valid.
RULING:
Yes. The SC decided in favor of respondents and placed a stamp of validity on the assailed
resolutions and transactions entered into. Based on the AES Contract, the Court sustained the
parties’ right to amend the same by extending the option period. Considering that the performance
security had not been released to Smartmatic-TIM, the contract was still effective which can still
be amended by the mutual agreement of the parties, such amendment being reduced in writing.
To be sure, the option contract is embodied in the AES Contract whereby the Comelec was given
the right to decide whether or not to buy the subject goods listed therein under the terms and
conditions also agreed upon by the parties.
Clearly, under the AES Contract, the Comelec was given until December 31, 2010 within which to
exercise the OTP the subject goods listed therein including the PCOS machines. The option was,
however, not exercised within said period. But the parties later entered into an extension
agreement giving the Comelec until March 31, 2012 within which to exercise it. With the extension
of the period, the Comelec validly exercised the option and eventually entered into a contract of
sale of the subject goods. The extension of the option period, the subsequent exercise thereof,
and the eventual execution of the Deed of Sale became the subjects of the petitions challenging
their validity in light of the contractual stipulations of respondents and the provisions of RA 9184.
As the Court simply held in the assailed decision that the moment the performance security is
released, the contract would have ceased to exist. However, since it is without prejudice to the
surviving provisions of the contract, the warranty provision and the period of the option to purchase
survive even after the release of the performance security. While these surviving provisions may
have different terms, in no way can we then consider the provision on the OTP separate from the
main contract of lease such that it cannot be amended under Article 19. Thus, not only the option
and warranty provisions survive but the entire contract as well. In light of the contractual
provisions, the SC sustained the amendment of the option period.
H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. G.R. No. 188456 could lead to a disastrous failure of elections. Comelec, they allege, would not be up to the challenge.
BAGARES, ALLAN JONES F. LARDIZABAL, GILBERT T. Cheating on a massive scale, but this time facilitated by a machine, is perceived to be a real possibility.
ANDRES, IMMACULADA D. GARCIA, ERLINDA T. In this petition for certiorari, prohibition and mandamus with prayer for a restraining order
MERCADO, FRANCISCO A. ALCUAZ, MA. AZUCENA P. Present: and/or preliminary injunction, petitioners H. Harry L. Roque, Jr., et al., suing as taxpayers and concerned
MACEDA, and ALVIN A. PETERS, citizens, seek to nullify respondent Comelecs award of the 2010 Elections Automation Project (automation
Petitioners, PUNO, C.J., project) to the joint venture of Total Information Management Corporation (TIM) and Smartmatic
QUISUMBING,* International Corporation (Smartmatic)[1] and to permanently prohibit the Comelec, TIM and Smartmatic
YNARES-SANTIAGO, from signing and/or implementing the corresponding contract-award.
- versus -
CARPIO,
CORONA, By Resolution[2] of July 14, 2009, the Court directed the respondents as well as the University of
COMMISSION ON ELECTIONS,
CARPIO MORALES, the Philippines (UP) Computer Center, National Computer Center (NCC) and Information Technology
Represented by HON. CHAIRMAN JOSE MELO,
CHICO-NAZARIO, Foundation of the Philippines (Infotech, hereinafter) to submit their collective or separate comments to the
COMELEC SPECIAL BIDS and AWARDS COMMITTEE,
VELASCO, JR., petition on or before July 24, 2009. Before any of the comments could actually be filed, Atty. Pete Quirino-
represented by its CHAIRMAN HON. FERDINAND
NACHURA, Quadra sought leave to intervene. In another resolution, the Court allowed the intervention and admitted the
RAFANAN, DEPARTMENT OF BUDGET and
LEONARDO-DE CASTRO, corresponding petition-in-intervention.[3]
MANAGEMENT, represented by HON. ROLANDO
BRION,
ANDAYA, TOTAL INFORMATION MANAGEMENT
PERALTA, On July 29, 2009, the Court heard the principal parties in oral arguments which was followed by
CORPORATION and SMARTMATIC INTERNATIONAL
BERSAMIN, the submission of their and the resource persons instructive, albeit clashing, memoranda. The Senate,
CORPORATION,
DEL CASTILLO, and through the Senate President, would later join the fray via a Motion for Leave to Intervene. In a Resolution
Respondents.
ABAD, JJ. of August 25, 2009, the Court admitted the Senates comment-in-intervention.
PETE QUIRINO-QUADRA,
From the petition, the separate comments thereon, with their respective annexes, and other
Petitioner-in-Intervention.
pleadings, as well as from admissions during the oral arguments, the Court gathers the following facts:
SENATE OF THE PHILIPPINES, represented by its
On December 22, 1997, Congress enacted Republic Act No. (RA) 8436 authorizing the adoption
President, JUAN PONCE ENRILE,
of an automated election system (AES) in the May 11, 1998 national and local elections and onwards. The
Movant-Intervenor.
1998, 2001, and 2004 national and local polls, however, came and went but purely manual elections were
still the order of the day. On January 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, as amendedeach defining Comelecs specific mandates insofar as automated
elections are concerned. The AES was not utilized in the May 10, 2000 elections, as funds were not
appropriated for that purpose by Congress and due to time constraints.
RA 9369 calls for the creation of the Comelec Advisory Council[5] (CAC). CAC is to
recommend, among other functions, 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
Promulgated: is tasked to certify, through an established international certification committee, not later than three months
September 10, 2009 before the elections, by categorically stating that the AES, inclusive of its hardware and software
x-----------------------------------------------------------------------------------------x components, is operating properly and accurately based on defined and documented standards. [8]
DECISION
In August 2008, Comelec managed to automate the regional polls in the Autonomous Region of Muslim
VELASCO, JR., J.: Mindanao[9] (ARMM), using direct recording electronics (DRE) technology[10] in
the province of Maguindanao; and the optical mark reader/recording (OMR) system, particularly the
In a democratic system of government, the peoples voice is sovereign. Corollarily, choosing Central Count Optical Scan (CCOS),[11] in the rest of ARMM.[12] What scores hailed as successful automated
through the ballots the men and women who are to govern the country is perhaps the highest exercise of ARMM 2008 elections paved the way for Comelec, with some prodding from senators,[13] to prepare for a
democracy. It is thus the interest of the state to insure honest, credible and peaceful elections, where the nationwide computerized run for the 2010 national/local polls, with the many lessons learned from the
sanctity of the votes and the secrecy of the ballots are safeguarded, where the will of the electorate is not ARMM experience influencing, according to the NCC, the technology selection for the 2010 automated
frustrated or undermined. For when the popular will itself is subverted by election irregularities, then the elections.[14]
insidious seeds of doubt are sown and the ideal of a peaceful and smooth transition of power is placed in
jeopardy. To automate, thus breaking away from a manual system of election, has been viewed as a Accordingly, in early March 2009, the Comelec released the Request for Proposal (RFP), also
significant step towards clean and credible elections, unfettered by the travails of the long wait and cheating known as Terms of Reference (TOR), for the nationwide automation of the voting, counting, transmission,
that have marked many of our electoral exercises. consolidation and canvassing of votes for the May 10, 2010 Synchronized National and Local Elections.
What is referred to also in the RFP and other contract documents as the 2010 Elections Automation Project
The Commission on Elections (Comelec), private respondents, (Automation Project) consists of three elaborate components, as follows:
the National Computer Center and other computer wizards are confident that nationwide automated
elections can be successfully implemented. Petitioners and some skeptics in the information technology (IT) Component 1: Paper-Based AES.[15] 1-A. Election Management System (EMS); 1-B Precinct-Count Optic
industry have, however, their reservations, which is quite understandable. To them, the automated election Scan (PCOS) [16] System and 1-C. Consolidation/Canvassing System (CCS);
system and the untested technology Comelec has chosen and set in motion are pregnant with risks and
Component 2: Provision for Electronic Transmission of Election Results using Public Telecommunications What followed was that TIM and Smartmatic, pursuant to the Joint Venture Agreement
Network; and (JVA),[33] caused the incorporation 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
Component 3: Overall Project Management in favor of Smartmatic TIM Corporation. Two days after, or on July 10, 2009, Comelec and Smartmatic
TIM Corporation, as provider, executed a contract[34] for the lease of goods and services under the contract
And obviously to address the possibility of systems failure, the RFP required interested bidders for the contract amount of PhP 7,191,484,739.48, payable as the Goods and Services are delivered and/or
to submit, among other things: a continuity plan[17] and a back-up plan. [18] progress is made in accordance [with pre-set] Schedule of Payments.[35] On the same date, a Notice to
Proceed[36]was sent to, and received by, Smartmatic TIM Corporation.
Under the two-envelope system designed under the RFP,[19] each participating bidder shall
submit, as part of its bid, an Eligibility Envelope[20] that should inter alia establish the bidders eligibility to Meanwhile, or on July 9, 2009, petitioners interposed the instant recourse which, for all intents
bid. On the other hand, the second envelope, or the Bid Envelope itself, shall contain two envelopes that, in and purposes, impugns the validity and seeks to nullify the July 10, 2009 Comelec-Smartmatic-TIM
turn, shall contain the technical proposal and the financial proposal, respectively. [21] Corporation automation contract adverted to. Among others, petitioners pray that respondents be
permanently enjoined from implementing the automation project on the submission that:
Subsequently, the Comelec Special Bids and Awards Committee (SBAC), earlier constituted PUBLIC RESPONDENTS COMELEC AND COMELEC-SBAC COMMITTED
purposely for the aforesaid project, caused the publication in different newspapers of the Invitation to Apply GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
for Eligibility and to Bid[22] for the procurement of goods and services to be used in the automation JURISDICTION IN AWARDING THE 2010 ELECTIONS AUTOMATION
project.[23] Meanwhile, Congress enacted RA 9525 appropriating some PhP 11.3 billion as supplemental PROJECT TO PRIVATE RESPONDENTS TIM AND SMARTMATIC FOR THE
budget for the May 10, 2010 automated national and local elections. FOLLOWING REASONS:
x x x COMELEC DID NOT CONDUCT ANY PILOT TESTING OF
Of the ten (10) invitation-responding consortia which obtained the bid documents, only seven THE x x x PCOS MACHINES OFFERED BY PRIVATE
(7) submitted sealed applications for eligibility and bids[24] which, per Bid Bulletin No. 24, were to be RESPONDENTS SMARTMATIC AND TIM, IN VIOLATION OF [RA]
opened on a pre-set date, following the convening of the pre-bid conference. Under the RFP, among those 8436 (AS AMENDED BY [RA] 9369)
eligible to participate in the bidding are manufacturers, suppliers and/or distributors forming themselves THE [PCOS] MACHINES [THUS] OFFERED BY PRIVATE
into a joint venture. A joint venture is defined as a group of two or more manufacturers, suppliers and/or RESPONDENTS x x x DO NOT SATISFY THE MINIMUM SYSTEM
distributors that intend to be jointly and severally responsible or liable for a particular contract.[25] CAPABILITIES SET BY [RA] NO. 8436 (AS AMENDED BY [RA]
9369).
Among the submitted bids was that of the joint venture (JV) of TIM and Smartmatic, the former PRIVATE RESPONDENTS x x x DID NOT SUBMIT THE REQUIRED
incorporated under the Corporation Code of the Philippines. Smartmatic, on the other hand, was organized DOCUMENTS DURING THE BIDDING PROCESS THAT SHOULD
under the laws of Barbados.[26] For a stated amount, said JV proposed to undertake the whole automation ESTABLISH THE DUE EXISTENCE, COMPOSITION, AND SCOPE
project, inclusive of the delivery of 82,200 PCOS machines. After the conclusion of the eligibility evaluation OF THEIR JOINT VENTURE, IN VIOLATION OF THE SUPREME
process, only three consortia[27] were found and thus declared as eligible. Further on, following the opening COURTS HOLDING IN INFORMATION TECHNOLOGY
of the passing bidders Bid Envelope and evaluating the technical and financial proposals therein contained, FOUNDATION OF THE PHILIPPINES, vs. COMELEC (G.R. No.
the SBAC, per its Res. No. 09-001, s.-2009, declared the above-stated bid of the JV of TIM-Smartmatic as 159139, Jan. 13, 2004).
the single complying calculated bid.[28] As required by the RFP, the bid envelope contained an outline of the THERE WAS NO VALID JOINT VENTURE AGREEMENT [JVA]
joint ventures back-up and continuity or contingency plans,[29] in case of a systems breakdown or any such BETWEEN PRIVATE RESPONDENTS SMARTMATIC AND
eventuality which shall result in the delay, obstruction or nonperformance of the electoral process. TIM DURING THE BIDDING, IN VIOLATION OF THE SUPREME
COURTS HOLDING IN INFORMATION TECHNOLOGY
After declaring TIM-Smartmatic as the best complying bidder, the SBAC then directed the joint FOUNDATION OF THE PHILIPPINES vs. COMELEC x x x WHICH
venture to undertake post-qualification screening, and its PCOS prototype machinesthe Smarmatic REQUIRES A JOINT VENTURE TO INCLUDE A COPY OF ITS
Auditable Electronic System (SAES) 1800to undergo end-to-end[30] testing to determine compliance with [JVA] DURING THE BIDDING.
the pre-set criteria.
THE ALLEGED JOINT VENTURE COMPOSED OF PRIVATE
In its Memorandum of June 01, 2009, on the Subject: Systems Evaluation Consolidated Report RESPONDENTS SMARTMATIC AND TIM, DOES NOT SATISFY
and Status Report on the Post-Qualification Evaluation Procedures, the SBAC Technical Working Group THE SUPREME COURTS DEFINITION OF A JOINT VENTURE
(TWG) stated that it was undertaking a 4-day (May 27 to May 30, 2009) test evaluation of TIM and IN INFORMATION TECHNOLOGY FOUNDATION OF THE
Smartmatics proposed PCOS project machines. Its conclusion: The demo systems presented PASSED all PHILIPPINES vs. COMELEC x x x WHICH REQUIRES A
tests as required in the 26-item criteria specified in the [RFP] with 100% accuracy rating.[31] The TWG also COMMUNITY OF INTEREST IN THE PERFORMANCE OF THE
validated the eligibility, and technical and financial qualifications of the TIM-Smartmatic joint venture. SUBJECT MATTER.

On June 9, 2009, Comelec, upon the recommendation of its SBAC, the CAC and other Filed as it was before contract signing, the petition understandably did not implead Smartmatic
stakeholders, issued Resolution No. (Res.) 8608[32] authorizing the SBAC to issue, subject to well-defined TIM Corporation, doubtless an indispensable party to these proceedings, an incident that did not escape
conditions, the notice of award and notice to proceed in favor of the winning joint venture. Comelecs notice.[37]

Soon after, TIM wrote Comelec expressing its desire to quit the JV partnership. In time, As a preliminary counterpoint, either or both public and private respondents question the legal
however, the parties were able to patch up what TIM earlier described as irreconcilable differences between standing or locus standi of petitioners, noting in this regard that the petition did not even raise an issue of
partners. transcendental importance, let alone a constitutional question.
 As an additional point, respondents also urge the dismissal of the petition on the ground of
prematurity, petitioners having failed to avail themselves of the otherwise mandatory built-in grievance
mechanism under Sec. 55 in relation to 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 Standi and Prematurity
It is true, as postulated, that to have standing, one must, as a rule, establish having suffered some
actual or threatened injury as a result of the alleged illegal government conduct; that the injury is fairly
traceable to the challenged 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 the matter 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 that the suitor has experienced or is in actual danger of suffering
direct and personal injury as the requisite injury is assumed.
Petitioners counsel, when queried, hedged on what specific constitutional proscriptions or
concepts had been infringed by the award of the subject automation project to Smartmatic TIM Corporation,
although he was heard to say that our objection to the system is anchored on the Constitution itself a
violation [sic] of secrecy of voting and the sanctity of the ballot.[41]Petitioners also depicted the covering
automation contract as constituting an abdication by the Comelec of its election-related mandate under the
Constitution, which is to enforce and administer all laws relative to the conduct of elections. Worse still,
according to the petitioners, the abdication, with its anti-dummy dimension, 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]
There is no doubt in our mind, however, about the compelling significance and the transcending
public importance of the one issue underpinning this petition: the successand the far-reaching grim
implications of the failureof the nationwide 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 the operations 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 of procedure.[47] This postulate on procedural technicalities applies to
matters of locus standi and the presently invoked principle of hierarchy of courts, which discourages direct
resort to the Court if the desired redress is within the competence 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 jurisdiction of special civil actions
for certiorari and 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 Court will for the nonce thus turn a blind eye to the judicial structure intended, first and
foremost, to provide an orderly dispensation of justice.
Hierarchy of Courts
At this stage, we shall dispose of another peripheral issue before plunging into the core
substantive issues tendered in this petition.
Respondents contend that petitioners should have availed themselves of the otherwise mandatory
protest mechanism set forth in Sections 55 and 58 of the procurement law (RA 9184) and the counterpart
provisions found in its Implementing Rules and Regulations (IRR)-A before seeking judicial
remedy. Insofar as relevant, Sec. 55 of RA 9184 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 states that 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 have been 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 the protested 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 two concerns, viz: (1) the Joint Venture Agreement (JVA) of Smartmatic and TIM; and (2)
the PCOS machines to be used. 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 to certain 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 extended disquisition, as repairing to the records would readily provide a satisfactory answer. We note
in fact that the petitioners do not appear to be earnestly pressing the said issue anymore, as demonstrated by
their counsels practically cavalier discussion thereof during the oral argument. When reminded, for instance,
of private respondents insistence on having in fact submitted their JVA dated April 23, 2009, petitioners
counsel responded as follows: We knew your honor that there was, in fact, a joint venture agreement filed.
However, because of the belated discovery that [there] were irreconcilable differences, we then made a
view that this joint venture agreement was a sham, at best pro forma because it did not contain all the
required stipulations in order to evidence unity of interest x x x.[51]
Indeed, the records belie petitioners initial posture that TIM and Smartmatic, as joint venture
partners, did not include in their submitted eligibility envelope a copy of their JVA. The SBACs Post
Qualification Evaluation Report (Eligibility) on TIM-Smartmatic, on page 10, shows the following
entry: Valid Joint Venture Agreement, stating among things, that the members are jointly and severally
liable for the whole obligation, in case of joint venture Documents verified compliance.[52]
Contrary to what the petitioners posit, the duly notarized JVA, as couched, explained the nature
and the limited purpose[53] of the joint venture and expressly defined, among other things, the composition,
scope, and the 60-40 capital 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 venture partners 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 Comelec to know such items as who it is dealing with, which between the partners has
control over the decision-making process, 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 the eligibility envelope of the Smartmatic-TIM
joint venture, they would have discovered that their challenge to and arguments 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 was without a vitiating effect on the validity of the tender offers. For the
bidding ground rules, as spelled out primarily in the RFP and the clarificatory bid bulletins, does not require,
for bidding purposes, that there be an incorporation of the bidding joint ventures or consortiums. In fact,
Bid Bulletin Nos. 19 and 20 recognize the existence and the acceptability 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: In an unincorporated joint venture,
determination of the required Filipino participation may be made by examining the terms 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 in
determining 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 a joint venture which requires community of interest in the
performance of the subject matter.
Petitioners invocation of Infotech is utterly misplaced. Albeit Infotech and this case are both about
modernizing the election process and bidding joint ventures, the relevant parallelism ends there. Cast as
they are against dissimilar factual milieu, one cannot plausibly set Infotech side with and contextually apply
to this case the ratio of Infotech. Suffice it to delve on the most glaring of differences. In Infotech, the
winning bid pertained to the consortium of Mega Pacific, a purported joint venture. Extant records, however,
do not show the formation of such joint venture, let alone its composition. To borrow from the ponencia of
then Justice, later Chief Justice, Artemio Panganiban, there is no sign whatsoever of any [JVA], consortium
agreement [or] memorandum agreement x x x 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 entirety of the automation contract.
Unlike the purported Mega Pacific consortium in Infotech, the existence in this case of the bidding joint
venture of Smarmatic and TIM is properly documented and spread all over the bid documents. And to stress,
TIM and Smartmatic, in their JVA, unequivocally agreed between themselves to perform their respective
undertakings. And over and beyond their commitments to each other, they undertook to incorporate, if called
for by the bidding results, a JVC that shall be solidarily liable with them for any actionable breach of the
automation contract.
In Infotech, the Court chastised the Comelec for dealing with an entity, the full identity of which the poll
body knew nothing about. Taking a cue from this holding, petitioners tag the TIM-Smartmatic JVA as
flawed and as one that 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 the Smartmatic voting machines; Dominion Voting Systems (Domino),
the inventor of said PCOS machines; and 2GO Transportation System Corporation (2GO), the subcontractor
responsible for the distribution of the PCOS machines throughout the country.
Petitioners beef against the TIM-Smartmatic JVA is untenable. First off, the Comelec knows the very
entities whom they are dealing with, which it can hold solidary liable under the automation contract, should
there be contract violation. 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, the Instruction 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 and
Smarmatic. Failing to gain traction for their indefensible posture, they would thrust on the Court the notion
of an invalid joint venture due to the non-inclusion of more companies in the existing TIM-Smartmatic joint
venture. The irony 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, awarding the automation project in violation of RA 8436, as amended. Following their line, no pilot
test of the PCOS technology Smartmatic-TIM offered has been undertaken; hence, the Comelec cannot
conduct a nationwide automation of the 2010 polls using the machines thus offered. Hence, the contract
award to Smartmatic-TIM with their untested PCOS machines violated RA 8436, as amended by RA 9369,
which mandates that with respect to the May 2010 elections and onwards, the system procured must have
been piloted in at least 12 areas referred to in Sec. 6 of RA 8436, as amended. What is more, petitioners
assert, private respondents PCOS machines do not satisfy the minimum system capabilities 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 the automation
contract.
Pilot Testing Not Necessary
Disagreeing, as to be expected, private respondents maintain that there is nothing in the
applicable law requiring, as a pre-requisite for the 2010 election automation project award, that the
prevailing bidders automation system, the PCOS in this case, be subjected to pilot testing. Comelec echoes
its co-respondents stance on pilot testing, with the added 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 argument about the phrase pilot test not being found in the law. But does it necessarily follow that a
pilot test is absolutely not contemplated 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 election in different provinces, whether paper-
based or a direct recording electronic election system as it may deem appropriate and
practical for the process of voting, counting of votes and canvassing/consolidation
and transmittal of results of electoral exercises: Provided, that for the regular
national and local elections, which shall be held immediately after the effectivity
of this Act, the AES shall be used in at least two highly urbanized cities and two
provinces each in Luzon, Visayas, and Mindanao to be chosen by the
[Comelec]: Provided, further, That local government units whose officials have been
the subject of administrative charges within sixteen (16) month prior to the May 14,
2007 elections shall not be chosen. Provided, finally, That no area shall be chosen
without the consent of the Sanggunian of the local government unit concerned. The
term local government unit as used in this provision shall refer to a highly urbanized
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 week of February 2007 or thereabout.[63] The regular national and local elections referred 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, be used in at least two highly urbanized cities and provinces in Luzon,
Visayas and Mindanao. The Court takes judicial notice 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 that Comelec failed to observe.
We are not persuaded.
From the practical viewpoint, the pilot testing of the technology in question in an actual,
scheduled electoral exercise under harsh conditions would have been the ideal norm in computerized system
implementation. The underscored proviso of Sec. 6 of RA 8436 is not, however, an authority for the
proposition that the pilot testing of the PCOS in the 2007 national elections in the areas thus specified is an
absolute must for the machines use in the 2010 national/local elections. The Court can concede that said
proviso, with respect to the May 2007 elections, commands the Comelec to automate in at least 12 defined
areas of the country. But the bottom line is that the required 2007 automation, 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 a general policy declaration: that Comelec is authorized to automate the entire elections.
The second part states that for 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 more precise, in at least two highly urbanized cities and two
provinces each in Luzon, Visayas, and Mindanao to be chosen by the Comelec. On the other hand, the last
part, phrased sans reference to the May 2007 elections, commands thus: [I]n succeeding regular national
or local elections, the [automated election system] shall be implemented. Taken in its proper context, the
last part is indicative of the legislative intent for the May 2010 electoral exercise to be fully automated,
regardless of whether or not pilot testing was run in the 2007 polls.
To argue that pilot testing is a condition precedent to a full automation in 2010 would doubtless
undermine the purpose of RA 9369. For, as aptly observed during the oral arguments, if there was no
political exercise in May 2007, the country would theoretically be barred forever from having full
automation.
Sec. 6 of the amended RA 8436, as couched, therefore, unmistakably conveys the idea of
unconditional full automation in the 2010 elections. A construal making pilot testing of the AES a
prerequisite or condition sine qua non to putting the system in operation in the 2010 elections is tantamount
to reading into said section something beyond the clear intention of Congress, as expressed in the provision
itself. We reproduce with approval the following excerpts from the comment of the Senate itself:
The plain wordings of RA 9369 (that amended RA 8436) commands that
the 2010 elections shall be fully automated, and such full automation is not
conditioned on pilot testing in the May 2007 elections. Congress merely gave
COMELEC the flexibility to partially use the AES in some parts of the country for
the May 2007 elections.[64]
Lest it be overlooked, an AES is not synonymous to and ought not to be confused with the PCOS.
Sec. 2(a) of RA 8436, as amended, defines an AES as a system using appropriate technology which has
been demonstrated in the voting, counting, consolidating, canvassing and transmission of election results,
and other electoral processes. On the other hand, PCOS refers to a technology wherein an optical ballot
scanner, into which optical scan paper ballots marked by hand by the voter are inserted to be
counted.[65] What may reasonably be deduced from these definitions is that PCOS is merely one of several
automated voting, counting or canvassing technologies coming within the term AES, implying in turn that
the automated election system or technology that the Comelec shall adopt in future elections need not, as a
matter of mandatory arrangement, be piloted in the adverted two highly urbanized cities and provinces.
In perspective, what may be taken as mandatory prerequisite for the full automation of the 2010
regular national/ local elections is that the system to be procured for that exercise be a technology tested
either here or abroad. The ensuing Section 8 of RA 8436, as amended, says so.
SEC 12. Procurement of Equipment and Materials. To achieve the
purpose of this Act, the Commission is authorized to procure, xxx, by purchase, lease,
rent or other forms of acquisition, supplies, equipment, materials, software, facilities,
and other services, from local or foreign sources xxx. With respect to the May 10,
2010 elections and succeeding electoral exercises, the system procured must
have demonstrated capability and been successfully used in prior electoral
exercise here or abroad. Participation in the 2007 pilot exercise shall not be
conclusive of the systems fitness. (Emphasis supplied).
While the underscored portion makes reference to a 2007 pilot exercise, what it really exacts is that, for the
automation of the May 2010 and subsequent elections, the PCOS or any AES to be procured must have
demonstrated its capability and success in either a local or a foreign electoral exercise. And as expressly
declared by the provision, participation in the 2007 electoral exercise is not a guarantee nor is it conclusive
of the systems fitness. In this regard, the Court is inclined to agree with private respondents interpretation
of the underscored portion in question: The provision clearly conveys that the [AES] to be used in the 2010
elections need not have been used in the 2007 elections, and that the demonstration of its capability need
not be in a previous Philippine election. Demonstration of the success and capability of the PCOS may be
in an electoral exercise in a foreign jurisdiction.[66] As determined by the Comelec, the PCOS system had
been successfully deployed in previous electoral exercises in foreign countries, such as Ontario, Canada;
and New York, USA,[67] albeit Smartmatic was not necessarily the system provider. But then, RA 9369 does
not call for the winning bidder of the 2010 automation project and the deploying entity/provider in the
foreign electoral exercise to be one and the same entity. Neither does the law incidentally require that the
system be first used in an archipelagic country or with a topography or a voting population similar to or
approximating that of the Philippines.
At any event, any lingering doubt on the issue of whether or not full automation of the 2010
regular elections can validly proceed without a pilot run of the AES should be put to rest with the enactment
in March 2009 of RA 9525,[68] in which Congress appropriated PhP 11.301 billion to automate the 2010
elections, subject to compliance with the transparency and accuracy requirements in selecting the relevant
technology of the machines, thus:
Sec. 2. Use of Funds. x x x Provided, however, That disbursement of the amounts
herein appropriated or any part thereof shall be authorized only in strict compliance
with the Constitution, the provisions of [RA] No. 9369 and other election laws
incorporated in said Act as to ensure the conduct of a free, orderly, clean, honest and
credible election and shall adopt such measures that will guaranty transparency and
accuracy in the selection of the relevant technology of the machines to be used on
May 10, 2010 automated national and local elections. (Emphasis added.)
It may safely be assumed that Congress approved the bill that eventually became RA 9525, fully aware that
the system using the PCOS machines were not piloted in the 2007 electoral exercise. The enactment of RA
9525 is to us a compelling indication that it was never Congress intent to make the pilot testing of a particular
automated election system in the 2007 elections a condition precedent to its use or award of the 2010 (f) System auditability which provides supporting documentation for
Automation Project. The comment-in-intervention of the Senate says as much. verifying the correctness of reported election results;
Further, the highly charged issue of whether or not the 2008 ARMM electionscovering, as NCC (g) An election management system for preparing ballots and programs
observed, three conflict-ridden island provincesmay be treated as substantial compliance with the pilot test for use in the casting and counting of votes and to consolidate, report
requirement must be answered in the affirmative. No less than Senator Richard J. Gordon himself, the author and display election result in the shortest time possible;
of the law, said that the system has been tried and tested in the ARMM elections last year, so we have to (h) Accessibility to illiterates and disabled voters;
proceed with the total implementation of the law.[69] (i) Vote tabulating program for election, referendum or plebiscite;
(j) Accurate ballot counters;
We note, though, the conflicting views of the NCC[70] and ITFP[71] on the matter. Suffice it to (k) Data retention provision;
state at this juncture that the system used in the 2008 ARMM election exercise bears, as petitioners to an (l) Provide for the safekeeping, storing and archiving of physical or
extent grudgingly admit, [72] a similarity with the PCOS. The following, lifted from the Comelecs comment, paper resource used in the election process;
is to us a fair description of how the two systems (PCOS and CCOS) work and where the difference lies: (m) Utilize or generate official ballots as herein defined;
xxx the elections in the [ARMM] utilized the Counting Center Optical Scan (CCOS), (a) Provide the voter a system of verification to find out whether or not
a system which uses the Optical Mark Reader (OMR), the same technology as the the machine has registered his choice; and
PCOS. (o) Configure access control for sensitive system data and function.

Under the CCOS, the voters cast their votes by shading or marking the In the procurement of this system, the Commission shall develop and adopt an
circles in the paper ballots which corresponded to the names of their chosen evaluation system to ascertain that the above minimum system capabilities are met.
candidates [like in PCOS]. Thereafter, the ballotboxes were brought to the counting The evaluation system shall be developed with the assistance of an advisory council.
centers where they were scanned, counted and canvassed. From the records before us, the Court is fairly satisfied that the Comelec has adopted a rigid technical
evaluation mechanism, a set of 26-item/check list criteria, as will be enumerated shortly, to ensure
xxx Under the PCOS, the counting, consolidation and canvassing of the votes are done at the compliance with the above minimum systems capabilities.
precinct level. The election results at the precincts are then electronically transmitted
to the next level, and so on. xxx PCOS dispenses with the physical transportation of The SBAC Memorandum[77] of June 03, 2009, as approved by Comelec Res. 8608,[78] categorically stated
ballot boxes from the precincts to the counting centers.[73] that the SBAC-TWG submitted its report that TIM/Smartmatics proposed systems and machines PASSED
all the end-to-end demo tests using the aforementioned 26-item criteria, inclusive of the accuracy rating test
of at least 99.955%. As appearing in the SBAC-TWG report, the corresponding answers/remarks to each of
Moreover, it has been proposed that a partial automation be implemented for the May 2010 elections in the 26 individual items are as herein indicated:[79]
accordance with Section 5 of RA 8436, as amended by RA 9369 instead of full automation. The Court
cannot agree as such proposition has no basis in law. Section 5, as worded, does not allow for partial
automation. In fact, Section 5 clearly states that the AES shall be implemented nationwide.[74] It behooves
this Court to follow the letter and intent of the law for full automation in the May 2010 elections.
ITEM REQUIREMENT REMARK/DESCRIPTIO
PCOS Meets Minimum Capabilities Standards
As another ground for the nullification of the automation contract, petitioners posit the view that the PCOS
machines do not satisfy the minimum system capabilities prescribed by RA 8436, as amended. To a specific 1 Does the system allow manual feeding of a ballot into the Yes. The proposed PCOS machine accept
point, they suggest that the PCOS system offered and accepted lacks the features that would assure accuracy PCOS machine? which were manually fed one at a time.
in the recording and reading of votes, as well as in the tabulation, consolidation/canvassing, electronic 2 Does the system scan a ballot sheet at the speed of at least Yes. A 30-inch ballot was used in this tes
transmission, storage results and accurate ballot counting.[75] In this particular regard, petitioners allege that, 2.75 inches per second? inch ballot took 2.7 seconds, which transl
based on Smartmatics website, the PCOS has a margin of error of from 2% to 10%, way beyond that of the per second.
required 99.99% accuracy in the counting of votes.[76]
3 Is the system able to capture and store in an encrypted Yes the system captured the images of the
format the digital images of the ballot for at least 2,000 encrypted format. Each of the 1,000 imag
The minimum system capabilities provision cited is Sec. 7 of RA 8436, as amended, and the
ballot sides (1,000 ballots, with back to back printing)? the images of the front and back sides of t
missing features referred to by petitioners are pars. (b) and (j). In full, Sec. 7 of RA 8436, as amended, reads:
to 2,000 ballot side.

SEC. 6. Minimum System Capabilities. - The automated election system To verify the captured ballot images, decr
must at least have the following functional capabilities: encrypted files were also provided. The sa
be digitized representations of the ballots
(a) Adequate security against unauthorized access; 4 Is the system a fully integrated single device as described Yes. The proposed PCOS is a fully integra
(b) Accuracy in recording and reading of votes as well as in the in item no. 4 of Component 1-B? with built-in printer and built-in data com
tabulation, consolidation/canvassing, electronic transmission, and (Ethernet and USB).
storage of results; 5 Does the system have a scanning resolution of at least 200 Yes. A portion of a filled up marked oval
(c) Error recovery in case of non-catastrophic failure of device; dpi? using image editor software to reveal the n
(d) System integrity which ensures physical stability and functioning of inch. The sample image showed 200 dpi.
the vote recording and counting process;
(e) Provision for voter verified paper audit trail; File properties of the decrypted image file
dpi.
6 Does the system scan in grayscale?
7 Does the system require authorization and authentication
of all operators, such as, but not limited to, usernames and
passwords, with multiple user access levels?
8 Does the system have an electronic display?
9 Does the system employ error handling procedures,
including, but not limited to, the use of error prompts and
other related instructions?
10 Does the system count the voters vote as marked on the
ballot with an accuracy rating of at least 99.995%?
11 Does the system detect and reject fake or spurious, and
previously scanned ballots?
12 Does the system scan both sides of a ballot and in any
orientation in one pass?
13 Does the system have necessary safeguards to determine
the authenticity of a ballot, such as, but not limited to, the
use of bar codes, holograms, color shifting ink, micro
printing, to be provided on the ballot, which can be
recognized by the system?
14 Are the names of the candidates pre-printed on the ballot?
Yes. 30 shades of gray were scanned in the test PCOS The first showed 108 pre-printed candidat
machine, 20 of which were required, exceeding the required fourteen (14) contests/positions, i
4-bit/16 levels of gray as specified in the Bid Bulletin No. survey questions on gender and a
19. plebiscite question.
Yes. The system required the use of a security key with
different sets ofpasswords/PINs for Administrator and The other showed 609 pre-printed candida
Operator users. fourteen (14) positions including
Yes. The PCOS machine makes use of an LCD display to questions.
show information: 15 Does each side of the ballot sheet accommodate at least Yes. The 30-inch ballot, which was used t
300 names of candidates with a minimum font size of 10, contained 309 names for the national posi
if a ballot may be inserted into the machine;in addition to other mandatory information required by names for local positions. The total pre-pr
law?
if a ballot is being processed; if a ballot is being ballot totaled 609.
rejected;
on other instructions and information to the This type of test ballot was also used for t
voter/operator. public, including members of the
Yes. The PCOS showed error messages on its screen
whenever a ballot isrejected by the machine and gives Arial Narrow, font size 10, was used in th
instructions to the voter on what to do next, or when there candidate names.
was a ballot jam error. 16 Does the system recognize full shade marks on the Yes. The ballots used for the accuracy tes
Yes. The two rounds of tests were conducted for this testappropriate space on the ballot opposite the name of the which made use of full shade marks, were
using only valid marks/shades on the ballots. 20,000 marks candidate to be voted for? test and were accurately recognized by the
were required to complete this test, with only one 17(1) Does the system recognize partial shade marks on the Yes. Four (4) test ballots were used with o
allowable reading error. appropriate space on the ballot opposite the name of the per ballot showing the following pencil m
candidate to be voted for?
625 ballots with 32 marks each were used for this test. top half shade;
During the comparison of the PCOS-generated results with bottom half shade;
the manually prepared/predetermined results, it was found left half shade; and
out that there were seven (7) marks which were inadvertently right half shade
missed out during ballot preparation by the TWG. Although
the PCOS-generated results turned out to be 100% accurate, These partial shade marks were all recogn
the 20,000-mark was not met thereby requiring the test to be machine
repeated. 18 Does the system recognize check ()marks on the Yes. One (1) test ballot with one check ()
appropriate space on the ballot opposite the name of the pencil, was used for this test.
To prepare for other possible missed out marks,650 ballots candidate to be voted for? The mark was recognized successfully.
with (20,800 marks) were used for the next round 19of test,Does the system recognize x marks on the appropriate Yes. One (1) test ballot with one x mark, u
which also yielded 100% accuracy. space on the ballot opposite the name of the candidate to used for this test.
Yes. This test made use of one (1) photocopied ballot and be voted for? The mark was recognized successfully.
one (1) re-created ballot. Both were rejected by 20 the PCOS.Does the system recognize both pencil and ink marks on Yes. The 1000 ballots used in the accurac
Yes. Four (4) ballots with valid marks were fed into the the ballot? were marked using the proposed marking
PCOS machine in the four (4) portrait orientations specified
in Bid Bulletin No. 4 (either back or front, upside down or A separate ballot with one (1) pencil mark
right side up), and all were accurately captured. This mark was also recognized by the PC
Yes. The system was able to recognize if the security Moreover, the tests for Items No. 17, 18 a
features on the ballot are missing. using pencil marks on the ballots.
21 In a simulation of a system shut down, does the system Yes. Five (5) ballots were used in this test
Aside from the test on the fake or spurious ballots (Item haveNo. error recovery features? was pulled from the PCOS while the 3rd b
11), three (3) test ballots with tampered bar codesand timing middle of the scanning procedure, such th
marks were used and were all rejected by the PCOS hanging in the ballot reader.
machine.
After resumption of regular power supply
The photocopied ballot in the test for Item No. 11 was not machine was able to restart successfully w
able to replicate the UV ink pattern on top portion of the the operator that there were two (2) ballot
ballot causing the rejection of the ballot. the machine. The hanging 3rd ballot was re
Yes. The Two sample test ballots of different lengths were operator and was able to be re-fed into the
provided: one (1) was 14 inches long while the other The marks on all five (5) were all accurate
was 30 inches long. Both were 8.5 inches22 wide. Does the system have transmission and Yes. The PCOS was able to transmit to t
consolidation/canvassing capabilities? end-to-end demonstration using GLOBE p
 23 Does the system generate a backup copy of the generated Yes. The PCOS saves a backup copy of the ERs, Intervenor
ballot Cuadras concern relates to the auditability of the election results. In this regard, it
reports, in a removable data storage device? images, statistical report and audit log into
maya Compact
suffice to Flash
point out that PCOS, being a paper-based technology, affords audit since the voter would be
(CF) Card. able, if need be, to verify if the machine had scanned, recorded and counted his vote properly. Moreover, it
should also be noted that the PCOS machine contains an LCD screen, one that can be programmed or
24 Does the system have alternative power sources, which Yes. A 12 bolt 18AH battery lead acid was used in this
configured test. to the voter his votes as read by the machine. [84]
to display
will enable it to fully operate for at least 12 hours? The initial test had to be repeated due to aNoshort circuit, after
Abdication of Comelecs Mandate and Responsibilty
seven (7) hours from start-up without ballot scanning. This
was explained by TIM-Smartmatic to be caused by non-
compatible wiring of the battery to the PCOS. A smaller wire
As a final main point, petitioners would have the Comelec-Smartmatic-TIM Corporation
than what is required was inadvertently used, likening the
automation contract nullified since, in violation of the Constitution, it constitutes a wholesale abdication of
situation to incorrect wiring of a car battery. Two (2)
the poll bodys constitutional mandate for election law enforcement. On top of this perceived aberration, the
COMELEC electricians were called to confirm TIM-
mechanism of the PCOS machines would infringe the constitutional right of the people to the secrecy of the
Smartmatics explanation. The PCOS machine was connected
ballot which, according to the petitioners, is provided in Sec. 2, Art. V of the Constitution. [85]
to regular power and started successfully. The following day,
the re-test was completed in 12 hours and 40 minutes xxx 984
The above contention is not well taken.
ballots were fed into the machine. The ER, as generated by
the PCOS was compared with predetermined result, showed
The first function of the Comelec under the Constitution [86]and the Omnibus Election Code for that
100% accuracy.
matterrelates to the enforcement and administration of all laws and regulations relating to the conduct
25 Is the system capable of generating and printing reports? of elections
Yes. The PCOS prints reports via its built-in printer which to public office to ensure a free, orderly and honest electoral exercise. And how did
includes: petitioners come to their conclusion about their abdication theory? By acceding to Art. 3.3 of the
automation
1. Initialization Report; 2. Election Returns (ER); 3. PCOS contract, Comelec relinquished, so petitioners claim, supervision and control of the system
Statistical Report; 4. Audit Log. to be used for the automated elections. To a more specific point, the loss of control, as may be deduced
26 Did the bidder successfully demonstrate EMS, voting Yes. An end-to-end demonstration of all proposed from the ensuing exchanges, arose from the fact that Comelec would not be holding possession of
systems
counting, consolidation/canvassing and transmission? was presented covering: importing of electionwhat data ininto
IT jargon
the are the public and private keys pair.
EMS; creation of election configuration data for the PCOS CHIEF JUSTICE: Well, more specifically are you saying that the main
and the CCS using EMS; creation of ballot faces using course
EMS;of this lost of control is the fact that SMARTMATIC holds the public and
configuring the PCOS and the CCS using the EMS-generated private keys to the sanctity of this system?
election configuration file; initialization, operation, ATTY. ROQUE: Yes, Your Honor, as well as the fact that they control
generation of reports and backup using the PCOS; electronic
the program embedded in the key cost that will read their votes by which the
transmission of results to the: [1] from the PCOS to may verify that their votes were counted.
electorate
city/municipal CCS and the central server. [2] from the
city/municipal CCS to the provincial CCS. [3] from the CHIEF JUSTICE: You are saying that SMARTMATIC and not its partner
provincial CCS to the national CCS; receipt and canvass TIM whoof hold these public and private keys?
transmitted results: [1] by the city/municipal CCS from the
PCOS. [2] by the provincial CCS from the city/municipal ATTY. ROQUE: Yes, Your Honor.
CCS. [3] by the national CCS from the Theprovincial CCS;
Court is not convinced. There is to us nothing in Art 3.3 of the automation contract, even if read
receipt of the transmittal results by the central server from
separately from other
the stipulations and the provisions of the bid documents and the Constitution itself, to
PCOS. support the simplistic conclusion of abdication of control pressed on the Court. Insofar as pertinent, Art 3.3
reads:
Given the foregoing and absent empirical evidence to the contrary, the Court, presuming
regularity in the performance of regular duties, takes the demo-testing thus conducted by SBAC-TWG as a
reflection of the capability of the PCOS machines, although the tests, as Comelec admits, [80] were done 3.3 The PROVIDER shall be liable for all its obligations under this Project and the
literally in the Palacio del Governador building, where a room therein simulated a town, the adjoining room performance of portions thereof by other persons or entities not parties to this
a city, etc. Perusing the RFP, however, the real worth of the PCOS system and the machines will of course Contract shall not relieve the PROVIDER of said obligations and concomitant
come after they shall have been subjected to the gamut of acceptance tests expressly specified in the RFP, liabilities.
namely, the lab test, field test, mock election test, transmission test and, lastly, the final test and sealing
SMARTMATIC, as the joint venture partner with the greater track record in
procedure of all PCOS and CCS units using the actual Election Day machine configuration. [81]
automated elections, shall be in charge of the technical aspects of the counting
and canvassing software and hardware, including transmission configuration and
Apropos the counting-accuracy feature of the PCOS machines, petitioners no less impliedly
system integration. SMARTMATIC shall also be primarily responsible for
admit that the web page they appended to their petition, showing a 2% to 10% failing rate, is no longer
preventing and troubleshooting technical problems that may arise during the
current.[82] And if they bothered to examine the current website of Smartmatic specifically dealing with its
elections. (Emphasis added.)
SAES 1800, the PCOS system it offered, they would have readily seen that the advertised accuracy rating
is over 99.99999%.[83] Moreover, a careful scrutiny of the old webpage of Smarmatic reveals that the 2% to The proviso designating Smartmatic as the joint venture partner in charge of the technical aspect
10% failure rate applied to optical scanners and not to SAES. Yet the same page discloses that the SAES of the counting and canvassing wares does not to us translate, without more, to ceding control of the electoral
has 100% accuracy. Clearly, the alleged 2% to 10% failing rate is now irrelevant and the Court need not process to Smartmatic. It bears to stress that the aforesaid designation of Smartmatic was not plucked from
belabor this and the equally irrelevant estoppel principle petitioners impose on us. thin air, as it was in fact an eligibility requirement imposed, should the bidder be a joint venture. Part 5, par.
5.4 (e) of the Instruction to Bidders on the subject Eligible Bidders, whence the second paragraph of
aforequoted Art. 3.3 came from, reads:
5.4 A JV of two or more firms as partners shall comply with the following
requirements.
xxxx
(e) The JV member with a greater track record in automated elections,
shall be in-charge of the technical aspects of the counting and canvassing software
and hardware, including transmission configuration and system integration
And lest it be overlooked, the RFP, which forms an integral part of the automation
contract,[87] has put all prospective bidders on notice of Comelecs intent to automate and to accept bids that
would meet several needs, among which is a complete solutions provider which can provide effective overall
nationwide project management service under COMELEC supervision and control, to ensure effective
and successful implementation of the [automation] Project.[88] Complementing this RFP advisory as to
control of the election process is Art. 6.7 of the automation contract, providing:
6.7 Subject to the provisions of the General Instructions to be issued by
the Commission En Banc, the entire processes of voting, counting, transmission,
consolidation and canvassing of votes shall be conducted by COMELECs
personnel and officials, and their performance, completion and final results
according to specifications and within the specified periods shall be the shared
responsibility of COMELEC and the PROVIDER. (Emphasis added.)
But not one to let an opportunity to score points pass by, petitioners rhetorically ask: Where does Public
Respondent Comelec intend to get this large number of professionals, many of whom are already gainfully
employed abroad?[89] The Comelec, citing Sec. 3[90] and Sec. 5 of RA 8436,[91] as amended, aptly answered
this poser in the following wise:
x x x [P]ublic respondent COMELEC, in the implementation of the automated project,
will forge partnerships with various entities in different fields to bring about the success
of the 2010 automated elections.
Public respondent COMELEC will partner with Smartmatic TIM
Corporation for the training and hiring of the IT personnel as well as for the massive
voter-education campaign. There is in fact a budget allocation x x x for these
undertakings. x x x
As regards the requirement of RA 9369 that IT-capable personnel shall be deputized as
a member of the BEI and that another IT-capable person shall assist the BOC, public
respondent COMELEC shall partner with DOST and other agencies and
instrumentalities of the government.
In not so many words during the oral arguments and in their respective Memoranda, public and
private respondents categorically rejected outright allegations of abdication by the Comelec of its
constitutional duty. The petitioners, to stress, are strangers to the automation contract. Not one participated
in the bidding conference or the bidding proper or even perhaps examined the bidding documents and,
therefore, none really knows the real intention of the parties. As case law tells us, the court has to ferret out
the real intent of the parties. What is fairly clear in this case, however, is that petitioners who are not even
privy to the bidding process foist upon the Court their own view on the stipulations of the automation
contract and present to the Court what they think are the parties true intention. It is a study of outsiders
appearing to know more than the parties do, but actually speculating what the parties intended. The
following is self-explanatory:
CHIEF JUSTICE: Why did you say that it did not, did you talk with the Chairman
and Commissioners of COMELEC that they failed to perform this duty, they did not
exercise this power of control?
ATTY. ROQUE : Your Honor, I based it on the fact that it was the COMELEC in
fact that entered into this contract .
CHIEF JUSTICE : Yes, but my question is did you confront the COMELEC officials
that they forfeited their power of control in over our election process?
ATTY. ROQUE : We did not confront, your Honor. We impugned their acts, Your
Honor.[92]
Just as they do on the issue of control over the electoral process, petitioners also anchor on speculative
reasoning their claim that Smartmatic has possession and control over the public and private keys pair that
will operate the PCOS machines. Consider: Petitioners counsel was at the start cocksure about Smartmatics
control of these keys and, with its control, of the electoral process.[93]
Several questions later, his answers had a qualifying tone:
JUSTICE NACHURA: And can COMELEC under the contract not demand that it
have access, that it be given access to and in fact generate its own keys independently
with SMARTMATIC so that it would be COMELEC and not SMARTMATIC that
would have full control of the technology insofar as the keys are concerned xxx?
ATTY. ROQUE: I do not know if COMELEC will be in a position to generate these
keys, xxx. [94]
And subsequently, the speculative nature of petitioners position as to who would have possession
and control of the keys became apparent.
CHIEF JUSTICE: Yes, but did you check with the COMELEC who will be holding
these two keys x x x did you check with COMELEC whether this system is correct?
ATTY.ROQUE: We have not had occasion to do so, x x x Your Honor.
xxxx
CHIEF JUSTICE: Why do you make that poor conclusion against the COMELEC x
x x May not the COMELEC hire the services of experts in order for the institution to
be able to discharge its constitutional functions?
ATTY. ROQUE: That is true, but x x x there is too much reliance on individuals who
do not have the same kind of accountability as public officers x x x
CHIEF JUSTICE: Are you saying that the COMELEC did not consult with available
I.T. experts in the country before it made the bidding rules before it conducted the
bidding and make the other policy judgments?
ATTY. ROQUE: Your Honor, what I am sure is that they did not confer with the I.T.
Foundation x x x.
 CHIEF JUSTICE: But is that foundation the only expert, does it have a monopoly of
knowledge?[95]
The Court, to be sure, recognizes the importance of the vote-security issue revolving around the
issuance of the public and private keys pair to the Board of Election Inspectors, including the digital
signatures. The NCC comment on the matter deserves mention, appearing to hew as it does to what appear
on the records. The NCC wrote:
The RFP/TOR used in the recent bidding for the AES to be used in the
2010 elections specifically mandated the use of public key cryptography. However,
it was left to the discretion of the bidder to propose an acceptable manner of
utilization for approval/acceptance of the Comelec. Nowhere in the RFP/TOR was it
indicated that COMELEC would delegate to the winning bidder the full discretion,
supervision and control over the manner of PKI [Public Key Infrastructure]
utilization.
With the view we take of the automation contract, the role of Smartmatic TIM Corporation is
basically to supply the goods necessary for the automation project, such as but not limited to the PCOS
machines, PCs, electronic transmission devices and related equipment, both hardware and software, and the
technical services pertaining to their operation. As lessees of the goods and the back-up equipment, the
corporation and its operators would provide assistance with respect to the machines to be used by the
Comelec which, at the end of the day, will be conducting the election thru its personnel and whoever it
deputizes.
And if only to emphasize a point, Comelecs contract is with Smartmatic TIM Corporation of
which Smartmatic is a 40% minority owner, per the JVA of TIM and Smartmatic and the Articles of
Incorporation of Smartmatic TIM Corporation. Accordingly, any decision on the part or on behalf of
Smartmatic will not be binding on Comelec. As a necessary corollary, the board room voting arrangement
that Smartmatic and TIM may have agreed upon as joint venture partners, inclusive of the veto vote that
one may have power over the other, should really be the least concern of the Comelec.
Parenthetically, the contention that the PCOS would infringe on the secrecy and sanctity of the
ballot because, as petitioners would put it, the voter would be confronted with a three feet long ballot, [96] does
not commend itself for concurrence. Surely, the Comelec can put up such infrastructure as to insure that the
voter can write his preference in relative privacy. And as demonstrated during the oral arguments, the voter
himself will personally feed the ballot into the machine. A voter, if so minded to preserve the secrecy of his
ballot, will always devise a way to do so. By the same token, one with least regard for secrecy will likewise
have a way to make his vote known.
During the oral arguments, the notion of a possible violation of the Anti-Dummy Law cropped
up, given the RFP requirement of a joint venture bidder to be at least be 60% Filipino. On the other hand,
the winning bidder, TIM-Smartmatic joint venture, has Smartmatic, a foreign corporation, owning 40% of
the equity in, first, the joint venture partnership, and then in Smartmatic TIM Corporation.
The Anti-Dummy Law[97] pertinently states:
Section 1. Penalty. In all cases in which any constitutional or legal
provision requires Philippine or any other specific citizenship as a requisite for
the exercise or enjoyment of a right, franchise or privilege, any citizen of the
Philippines or of any other specific country who allows his name or citizenship to be
used for the purpose of evading such provision, and any alien or foreigner profiting
thereby, shall be punished by imprisonment xxx and by a fine xxx.
SECTION 2. Simulation of minimum capital stock In all cases in which
a constitutional or legal provision requires that a corporation or association may
exercise or enjoy a right, franchise or privilege, not less than a certain per centum of
its capital must be owned by citizens of the Philippines or any other specific
country, it shall be unlawful to falsely simulate the existence of such minimum
stock or capital as owned by such citizen for the purpose of evading such
provision. xxx
SECTION 2-A. Unlawful use, Exploitation or Enjoyment. Any person,
corporation, or association which, having in its name or under its control, a right,
franchise, privilege, property or business, the exercise or enjoyment of which is
expressly reserved by the Constitution or the laws to citizens of the Philippines
or of any other specific country, or to corporations or associations at least sixty
per centum of the capital of which is owned by such citizens, permits or allows
the use, exploitation or enjoyment thereof by a person, corporation, or association not
possessing the requisites prescribed by the Constitution or the laws of the Philippines;
or leases, or in any other way, transfers or conveys said right, franchise, privilege,
property or business to a person, corporation or association not otherwise qualified
under the Constitution xxx shall be punished by imprisonment xxx (Emphasis added.)
The Anti-Dummy Law has been enacted to limit the enjoyment of certain economic activities to
Filipino citizens or corporations. For liability for violation of the law to attach, it must be established that
there is a law limiting or reserving the enjoyment or exercise of a right, franchise, privilege, or business to
citizens of the Philippines or to corporations or associations at least 60 per centum of the capital of which
is owned by such citizens. In the case at bench, the Court is not aware of any constitutional or statutory
provision classifying as a nationalized activity the lease or provision of goods and technical services for the
automation of an election. In fact, Sec. 8 of RA 8436, as amended, vests the Comelec with specific authority
to acquire AES from foreign sources, thus:
SEC 12. Procurement of Equipment and Materials. To achieve the
purpose of this Act, the Commission is authorized to procure, xxx, by purchase,
lease, rent or other forms of acquisition, supplies, equipment, materials, software,
facilities, and other services, from local or foreign sources xxx. (Emphasis added.)
Petitioners cite Executive Order No. (EO) 584,[98] Series of 2006, purportedly limiting contracts
for the supply of materials, goods and commodities to government-owned or controlled corporation,
company, agency or municipal corporation to corporations that are 60% Filipino. We do not quite see the
governing relevance of EO 584. For let alone the fact that RA 9369 is, in relation to EO 584, a subsequent
enactment and, therefore, enjoys primacy over the executive issuance, the Comelec does fall under the
category of a government-owned and controlled corporation, an agency or a municipal corporation
contemplated in the executive order.
A view has been advanced regarding the susceptibility of the AES to hacking, just like the voting
machines used in certain precincts in Florida, USA in the Gore-Bush presidential contests. However, an
analysis of post-election reports on the voting system thus used in the US during the period material and the
AES to be utilized in the 2010 automation project seems to suggest stark differences between the two
systems. The first relates to the Source Code, defined in RA 9369 as human readable instructions that define
what the computer equipment will do.[99] The Source Code for the 2010 AES shall be available and opened
for review by political parties, candidates and the citizens arms or their representatives; [100] whereas in the
US precincts aforementioned, the Source Code was alleged to have been kept secret by the machine
manufacture company, thus keeping the American public in the dark as to how exactly the machines counted
their votes. And secondly, in the AES, the PCOS machines found in the precincts will also be the same
device that would tabulate and canvass the votes; whereas in the US, the machines in the precincts did not
count the votes. Instead the votes cast appeared to have been stored in a memory card that was brought to a
counting center at the end of the day. As a result, the hacking and cheating may have possibly occurred at
the counting center.
Additionally, with the AES, the possibility of system hacking is very slim. The PCOS machines
are only online when they transmit the results, which would only take around one to two minutes. In order
to hack the system during this tiny span of vulnerability, a super computer would be required. Noteworthy
also is the fact that the memory card to be used during the elections is encrypted and read-onlymeaning no
illicit program can be executed or introduced into the memory card.
Therefore, even though the AES has its flaws, Comelec and Smartmatic have seen to it that the
system is well-protected with sufficient security measures in order to ensure honest elections.
And as indicated earlier, the joint venture provider has formulated and put in place a continuity
and back-up plans that would address the understandable apprehension of a failure of elections in case the
machines falter during the actual election. This over-all fall-back strategy includes the provisions for 2,000
spare PCOS machines on top of the 80,000 units assigned to an equal number precincts throughout the
country. The continuity and back-up plans seek to address the following eventualities: (1) The PCOS fails
to scan ballots; (2) The PCOS scans the ballots, but fails to print election returns (ERs); and/or (3) The
PCOS prints but fails to transmit the ERs. In the event item #1 occurs, a spare PCOS, if available, will be
brought in or, if not available, the PCOS of another precinct (PCOS 2 for clarity), after observing certain
defined requirements,[101] shall be used. Should all the PCOS machines in the entire municipality/city
fail, manual counting of the paper ballots and the manual accomplishment of ERs shall be resorted to in
accordance with Comelec promulgated rules on appreciation of automated ballots.[102] In the event item #2
occurs where the PCOS machines fail to print ERs, the use of spare PCOS and the transfer of PCOS-2 shall
be effected. Manual counting of ERs shall be resorted to also if all PCOS fails in the entire municipality.
And should eventuality #3 transpire, the following back-up options, among others, may be availed
of: bringing PCOS-1 to the nearest precinct or polling center which has a functioning transmission facility;
inserting transmission cable of functioning transmission line to PCOS-1 and transmitting stored data from
PCOS-1 using functioning transmission facility.
The disruption of the election process due to machine breakdown or malfunction may be limited
to a precinct only or could affect an entire municipal/city. The worst case scenario of course would be the
wholesale breakdown of the 82,000 PCOS machines. Nonetheless, even in this most extreme case, failure
of all the machines would not necessarily translate into failure of elections. Manual count tabulation and
transmission, as earlier stated, can be done, PCOS being a paper-ballot technology. If the machine fails for
whatever reason, the paper ballots would still be there for the hand counting of the votes, manual tabulation
and transmission of the ERs. Failure of elections consequent to voting machines failure would, in fine, be a
very remote possibility.
A final consideration.
The first step is always difficult. Hardly anything works, let alone ends up perfectly the first time
around. As has often been said, if one looks hard enough, he will in all likelihood find a glitch in any new
system. It is no wonder some IT specialists and practitioners have considered the PCOS as unsafe, not the
most appropriate technology for Philippine elections, and easily hackable, even. And the worst fear
expressed is that disaster is just waiting to happen, that PCOS would not work on election day.
Congress has chosen the May 2010 elections to be the maiden run for full automation. And
judging from what the Court has heard and read in the course of these proceedings, the choice of PCOS by
Comelec was not a spur-of-moment affair, but the product of honest-to-goodness studies, consultations with
CAC, and lessons learned from the ARMM 2008 automated elections. With the backing of Congress by
way of budgetary support, the poll body has taken this historic, if not ambitious, first step. It started with
the preparation of the RFP/TOR, with a list of voluminous annexes embodying in specific detail the bidding
rules and expectations from the bidders. And after a hotly contested and, by most accounts, a highly
transparent public bidding exercise, the joint venture of a Filipino and foreign corporation won and, after its
machine hurdled the end-to-end demonstration test, was eventually awarded the contract to undertake the
automation project. Not one of the losing or disqualified bidders questioned, at least not before the courts,
the bona fides of the bidding procedures and the outcome of the bidding itself.
Assayed against the provisions of the Constitution, the enabling automation law, RA 8436, as
amended by RA 9369, the RFP and even the Anti-Dummy Law, which petitioners invoked as an
afterthought, the Court finds the project award to have complied with legal prescriptions, and the terms and
conditions of the corresponding automation contract in question to be valid. No grave abuse of
discretion, therefore, can be laid on the doorsteps of respondent Comelec. And surely, the winning joint
venture should not be faulted for having a foreign company as partner.
The Comelec is an independent constitutional body with a distinct and pivotal role in our scheme
of government. In the discharge of its awesome functions as overseer of fair elections, administrator and
lead implementor of laws relative to the conduct of elections, it should not be stymied with restrictions that
would perhaps be justified in the case of an organization of lesser responsibility.[103] It should be afforded
ample elbow room and enough wherewithal in devising means and initiatives that would enable it to
accomplish the great objective for which it was createdto promote free, orderly, honest and peaceful
elections. This is as it should be for, too often, Comelec has to make decisions under difficult conditions to
address unforeseen events to preserve the integrity of the election and in the process the voice of the
people. Thus, in the past, the Court has steered away from interfering with the Comelecs exercise of its
power which, by law and by the nature of its office properly pertain to it. Absent, therefore, a clear showing
of grave abuse of discretion on Comelecs part, as here, the Court should refrain from utilizing the corrective
hand of certiorari to review, let alone nullify, the acts of that body. This gem, while not on all fours with,
is lifted from, the Courts holding in an old but oft-cited case:
x x x We may not agree fully with [the Comelecs] choice of means, but
unless these are clearly illegal or constitute gross abuse of discretion, this court should
not interfere. Politics is a practical matter, and political questions must be dealt with
realisticallynot from the standpoint of pure theory [or speculation]. x x x
xxxx
There are no ready-made formulas for solving public problems. Time and
experience are necessary to evolve patterns that will serve the ends of good
government. In the matter of the administration of the laws relative to the conduct of
elections, x x x we must not by any excessive zeal take away from the [Comelec] the
initiative which by constitutional and legal mandates properly belongs to it. Due
regard to the independent character of the Commission x x x requires that the power
of this court to review the acts of that body should, as a general proposition, be used
sparingly, but firmly in appropriate cases.[104] x x x
The Court, however, will not indulge in the presumption that nothing would go wrong, that a
successful automation election unmarred by fraud, violence, and like irregularities would be the order of the
moment on May 10, 2010. Neither will it guarantee, as it cannot guarantee, the effectiveness of the voting
machines and the integrity of the counting and consolidation software embedded in them. That task belongs
at the first instance to Comelec, as part of its mandate to ensure clean and peaceful elections. This
independent constitutional commission, it is true, possesses extraordinary powers and enjoys a considerable
latitude in the discharge of its functions. The road, however, towards successful 2010 automation elections
would certainly be rough and bumpy. The Comelec is laboring under very tight timelines. It would
accordingly need the help of all advocates of orderly and honest elections, of all men and women of
goodwill, to smoothen the way and assist Comelec personnel address the fears expressed about the integrity
of the system. Like anyone else, the Court would like and wish automated elections to succeed, credibly.
WHEREFORE, the instant petition is hereby DENIED.
SO ORDERED.
HARRY L. ROQUE, JR, et. al. vs COMELEC G.R. 188456 September 10,
2009 Poll Automation Law

NOVEMBER 23, 2017

FACTS:

In this petition for certiorari, prohibition and mandamus with prayer for a
restraining order and/or preliminary injunction, petitioners H. Harry L. Roque,
Jr., et al., suing as taxpayers and concerned citizens, seek to nullify
respondent Comelec’s award of the 2010 Elections Automation Project
(automation project) to the joint venture of Total Information Management
Corporation (TIM) and Smartmatic International Corporation (Smartmatic)
and to permanently prohibit the Comelec, TIM and Smartmatic from signing
and/or implementing the corresponding contract-award. They contend the
mechanism of the PCOS machines would infringe the constitutional right of
the people to the secrecy of the ballot which, according to the petitioners, is
provided in Sec. 2, Art. V of the Constitution.

ISSUE:

Is the Poll Automation Law unconstitutional for infringing the constitutional

right of the people to the secrecy of the ballot?

RULING:

No. Parenthetically, the contention that the PCOS would infringe on the
secrecy and sanctity of the ballot because, as petitioners would put it, the
voter would be confronted with a “three feet” long ballot, does not commend
itself for concurrence. Surely, the Comelec can put up such infrastructure as
to insure that the voter can write his preference in relative privacy. And as
demonstrated during the oral arguments, the voter himself will personally
feed the ballot into the machine. A voter, if so minded to preserve the
secrecy of his ballot, will always devise a way to do so. By the same token,
one with least regard for secrecy will likewise have a way to make his vote
known.
 "3. Official ballot - where AES is utilized, refers to the paper ballot, whether
printed or generated by the technology applied, that faithfully captures or
represents the votes cast by a voter recorded or to be recorded in electronic
form;

Republic Act No. 9369 January 23, 2007

"4. Election returns - a document in electronic and printed form directly produced
Amending RA 8436
by the counting or voting machine, showing the date of the election, the province,
municipality and the precinct in which it is held and the votes in figures for each
AN ACT AMENDING REPUBLIC ACT NO. 8436, ENTITLED "AN ACT AUTHORIZING candidate in a precinct in areas where AES is utilized;
THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN
THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT
"5. Statement of votes - a document containing the votes obtained by candidates
NATIONAL AND LOCAL ELECTORAL EXERCISES, TO ENCOURAGE
in each precinct in a city/municipality;
TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF ELECTIONS,
AMENDING FOR THE PURPOSE BATAS PAMPANSA BLG. 881, AS AMEMDED,
REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTIONS LAWS, PROVIDING "6. City/municipal/district/provincial certificate of canvass - a document in
FUNDS THEREFOR AND FOR OTHER PURPOSES" electronic and printed form containing the total votes in figures obtained by each
candidate in a city/municipality/district/province as the case may be. The
electronic certificates of canvass shall be the official canvass result in the
Be it enacted by the Senate and the House of Representatives of the Philippines in
aforementioned jurisdictions;
Congress assembled:

"7. Paper-based election system - a type of automated election system that use
SECTION 1. Section 1 of Republic act No.8436 is hereby amended to read as follows:
paper ballots, records and counts votes, tabulates, consolidates/canvasses and
transmits electronically the results of the vote count;"
"SECTION 1.Declation of Policy. - It is policy of the State to ensure free, orderly,
honest, peaceful, credible and informed elections, plebiscites, referenda, recall
"8. Direct recording electronic election system - a type or automated election
and other similar electoral exercises by improving on the election process and
system that uses electronic ballots, records, votes by means of a ballot display
adopting systems, which shall involved the use of an automated election system
provided with mechanical or electro-optical component that can be activated by
that will ensure the secrecy and sanctity of the ballot and all election,
the voter, processes data by means of a computer programs, record voting data
consolidation and transmission documents on order that the process shall be
and ballot images, and transmits voting results electronically;
transparent and credible and that the results shall be fast, accurate and reflective
of the genuine will of the people.
"9. Counting center - a public places within the city/municipality or in such other
places as may be designated by the Commission where the official ballots cast in
"The State recognizes the mandate and authority of the Commission to prescribe
various precincts of the city/municipality shall be counted. Polling places or voting
adoption and use of the most suitable technology of demonstrated capability
centers may also be designated as counting centers;
taking into account the situation prevailing in the area and the funds available for
the purpose."
"10. Continuity plan - a list of contingency measures, and the policies for
activation of such, that are put in place to ensure continuous operation of the
SEC. 2. Section 2 of Republic Act No. 8436 is hereby amended to read as follows:
AES;

"SEC. 2. Definition of Terms. - As used in this Act, the following terms shall
"11. Disabled voters - a person with impaired capacity to use the AES;
mean:

"12. Source code - human readable instructions that define what the computer
"1. Automated election system, hereinafter to as AES - a system using
equipment will do; and
appropriate technology which has been demonstrated in the voting, counting,
consolidating, canvassing, and transmission of election result, and other electoral
process; "13. Station- refers to a polling place, counting center, municipal or provincial
canvassing center."
"2. Electronic transmission - conveying data in electronic form from one location
to other; SEC. 3. Section 3 of Republic Act No. 8436 is hereby amended to read as follows:

"SEC 3. Board of Election Inspectors. - Where AES shall be adopted, at least

one member of the Board of Election Inspectors shall be an information
 technology-capable person, who is trained or certified by the DOST to use the
EAS. Such certification shall be issued by the DOST, free of charge."
SEC. 4. Section 4 of Republic Act No. 8436 is hereby deleted. The succeeding section are
hereby renumbered accordingly.
SEC. 5. Section 5 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC. 4 Information Technology Support for the Board of Canvassers. - To
implement the AES, each board of canvassers shall be assisted by an
information technology-capable person authorized to operate the equipment
adopted for the elections. The Commission shall deputized information
technology personnel from among the agencies and instrumentalities of the
government, including government-owned and controlled corporations. The per
diem of the deputized personnel shall be the same as that of the members of the
board of canvassers."
SEC. 6. Section 6 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC. 5 Authority to Use an Automated Election System. - To carry out the
above-stated policy, the Commission on Elections, herein referred to as the
Commission, is hereby authorized to use an automated election system or
systems in the same election in different provinces, whether paper-based or a
direct recording electronic election system as it may deem appropriate and
practical for the process of voting, counting of votes and
canvassing/consolidation and transmittal of results of electoral
exercises: Provided, that for the regular national and local election, which shall
be held immediately after effectivity of this Act, the AES shall be used in at least
two highly urbanized cities and two provinces each in Luzon, Visayas and
Mindanao, to be chosen by the Commission: Provided, further, That local
government units whose officials have been the subject of administrative charges
within sixteen (16) month prior to the May 14, 2007 election shall not be
chosen: Provided, finally, That no area shall be chosen without the consent of the
Sanggunian of the local government unit concerned. The term local government
unit as used in this provision shall refer to a highly urbanized city or province. In
succeeding regular national or local elections, the AES shall be implemented
nationwide."
SEC. 7. Section 7 of Republic Act No. 8436 is hereby amended to read the follows:
"SEC.6. Minimum System Capabilities. - "The automated election system must at
least have the following functional capabilities:
(a) Adequate security against unauthorized access:
(b) Accuracy in recording and reading of votes as well as in the tabulation,
consolidation/canvassing, electronic transmission, and storage of results;
(c) Error recovery in case of non-catastrophic failure of device;
(d) System integrity which ensures physical stability and functioning of the vote
recording and counting process;
(e) Provision for voter verified paper audit trail;
(f) System auditability which provides supporting documentation for verifying the
correctness of reported election results;
(g) An election management system for preparing ballots and programs for use in
the casting and counting of votes and to consolidate, report and display election
result in the shortest time possible;
(h) Accessibility to illiterates and disable voters;
(i) Vote tabulating program for election, referendum or plebiscite;
(j) Accurate ballot counters;
(k) Data retention provision;
(l) Provide for the safekeeping, storing and archiving of physical or paper
resource used in the election process;
(m) Utilize or generate official ballots as herein defined;
(n) Provide the voter a system of verification to find out whether or not the
machine has registered his choice; and
(o) Configure access control for sensitive system data and function.
"In the procurement of this system, the Commission shall develop and adopt an
evaluation system to ascertain that the above minimum system capabilities are
met. This evaluation system shall be developed with the assistance of an
advisory council."
SEC.8. A new Section 7 is hereby provided to read as follows:
"SEC.7 Communication Channels for Electronic Transmissions. - all electronic
transmissions by and among the EAS and its related components shall utilizes
secure communication channels as recommended by the Advisory Council, to
ensure authentication and integrity of transmission."
SEC. 9. New section 8,9, 10 and 11 are hereby provided to read as follows:
"SEC.8. The Advisory Council. - The Commission shall create an advisory
Council, hereafter referred to as the Council, which shall be convened not later
than eighteen (18) months prior to the next schedule electoral exercise, and
deactivated six months after completion of canvassing: Provided, for purposes of
the 2007 elections, the Advisory Council shall be immediately convened within
ten (10) days after the effectivity of this Act.
"The Council shall be composed of the following members, who must be
registered Filipino voters, of known independence, competence and probity;
"(a) The Chairman of the Commission on information and Communications
Technology (CICT) who shall act as the chairman of the council;
"(b) One member from the Department of Science and Technology;
"(c) One member from the Department of Education;
"(d) One member representing the academe, to be selected by the chair of the
Advisory Council from among the list of nominees submitted by the country's
academic institutions;
"(e) Three members representing ICT professional organizations to be selected
by the chair of the Advisory Council from among the list of nominees submitted
by Philippines-based ICT professional organization. Nominees shall be
individuals, at least one of whom shall be experience in managing or
implementing large-scale IT projects.
"(f) Two members representing nongovernmental electoral reform organizations,
to be selected by the chair of the Advisory Council from among the list of
nominees submitted by the country's nongovernmental electoral reform
organizations.
"A person who is affiliated with any political party or candidate for any national
position, or is related to a candidate for any national position by affinity or
consanguinity within the fourth civil degree, shall not be eligible for appointment
or designation to the Advisory Council. Should any such situation arise at any
time during the incumbency of a member, the designation or appointment of that
member, shall ipso facto be terminated.
"Any member of the advisory council is prohibited from engaging, directly or
indirectly, with any entity that advocates, markets, imports, produces or in any
manner handles software, hardware or any equipment that may be used for
election purposes for personal gain".
"Any violation of the two immediate preceding paragraphs shall disqualify said
member from the Advisory Council and shall be punishable as provided in this
Act and shall be penalized in accordance with the Anti-Graft and Corrupt
Practices Act and other related laws.
"The council may avail itself of the expertise and services of resource person
who are known independence, competence and probity, are nonpartisan, and do
not posses any of the disqualifications applicable to a member of the Advisory
Council as provided herein. The resource persons shall also be subject to the
same prohibitions and penalties as the members of the Advisory Council.
"The commission on information and communications technology (CICT), shall
include in its annual appropriation the funds necessary to enable the council to
effectively perform its functions".
"SEC. 9. Function of the Advisory Council. - the Council shall have the following
functions:
1. Recommend the most appropriate, secure, applicable and cost-effective
technology to be applied in the AES, in whole or in part, at that specific form in
time.
2. Participate as nonvoting members of the Bids and Awards Committee in the
conduct of the bidding process for the AES. Members of the Advisory Council
representing the ICT Professionals organizations are hereby excluded from
participating in any manner in the Bids and Awards Committee.
3. Participate as nonvoting members of the steering committee tasked with the
implementation of the AES, Members of the Advisory Council representing the
ICT professional organization are hereby excluded from participating in any
manner in the steering committee.
4. Provide advice and assistance in the review of the systems planning,
inception, development, testing, operationalization, and evaluation stages.
5. Provided advice and/or assistance in the identification, assessment and
resolution of systems problems or inadequacies as may surface or resurface in
the course of the bidding, acquisition, testing, operationalization, re-use, storage
or disposition of the AES equipment and/or resources as the case may be.
6. Provided advice and/or assistance in the risk management of the AES
especially when a contingency or disaster situation arises.
7. Prepare and submit a written report, which shall be submitted within six
months from the date of the election to the oversight committee, evaluating the
use of the AES.
Nothing in the role of the Council or any outside intervention or influence shall be
construed as an abdication or diminution of the Commission's authority and
responsibility for the effective development, management and implementation of
the AES and this Act."
The Advisory Council shall be entitled to a just and reasonable amount of per
diem allowances and/or honoraria to cover the expenses of the services
rendered chargeable against the budget of the Commission."
"SEC. 10. The Technical Evaluation Committee. - The Commission, in
collaboration with the chairman of the Advisory Council, shall establish an
independent technical evaluation committee, herein known as the Committee,
composed of a representative each from the Commission, the Commission on
Information and Communications Technology and the Department of Science
and Technology who shall act as chairman of the Committee.
"The Committee shall be immediately convened within ten (10) days after the
effectively of this Act."
"SEC. 11. Functions of the Technical Evaluation Committee. - The Committee
shall certify, through an established international certification entity to be chosen
by the Commission from the recommendations of the Advisory Council, not later
than three months before the date of the electoral exercises, categorically stating
that the AES, including its hardware and software components, is operating
properly, securely, and accurately, in accordance with the provisions of this Act
based, among others, on the following documented results:
1. The successful conduct of a field testing process followed by a mock election
event in one or more cities/municipalities;
2. The successful completion of audit on the accuracy, functionally and security
controls of the AES software;
3. The successful completion of a source code review;
4. A certification that the source code is kept in escrow with the Bangko Sentral
ng Pilipinas;
5. A certification that the source code reviewed is one and the same as that used
by the equipment; and
6. The development, provisioning, and operationalization of a continuity plan to
cover risks to the AES at all points in the process such that a failure of elections,
whether at voting, counting or consolidation, may be avoided.
For purposes of the 2007 elections, the certification shall be done not later than
eight weeks prior to the date of the elections.
"If the Commission decides to proceed with the use of the AES without the
Committee's certification, it must submit its reason in writing, to the Oversight
Committee, no less than thirty (30) days prior to the electoral exercise where the
AES will be used.
"The Committee may avail itself of the expertise and service of resource persons
who are of known independence, competence and probity, are no partisan, and
who do not possess any of the disqualification applicable to a member of the
Advisory Council as provided herein. The resource persons shall also be subject
to the same prohibitions and penalties as the members of the Advisory Council.
"The Committee shall closely coordinate with the steering committee of the
Commission tasked with the implementation of the AES in the identification and
agreement of the project deliverables and timelines, and in the formulation of the
acceptance criteria for each deliverable."
SEC. 10. Section 8 of Republic Act No. 8436 is hereby amended to read as follow:
"SEC.12. Procurement of Equipment and Materials. - To achieve the purpose of
this Act, the Commission in authorized to procure, in accordance with existing
laws, by purchase, lease, rent or other forms of acquisition, supplies, equipment,
materials, software, facilities, and other service, from local or foreign sources free
from taxes and import duties, subject to accounting and auditing rules and
regulation. With respect to the May 10, 2010 election and succeeding electoral
exercises, the system procured must have demonstrated capability and been
successfully used in a prior electoral exercise here or board. Participation in the
2007 pilot exercise shall not be conclusive of the system's fitness.
"In determining the amount of any bid from a technology, software or equipment
supplier, the cost to the government of its deployment and implementation shall
be added to the bid price as integral thereto. The value of any alternative use to
which such technology, software or equipment can be put for public use shall not
be deducted from the original face value of the said bid."
SEC. 11. Section 9 of Republic Act No. 8436 is hereby amended to read as follow:
"SEC.13. Continuity Plan. - The AES shall be so designed to include a continuity
plan in case of a systems breakdown or any such eventuality which shall result in
the delay, obstruction or nonperformance of the electoral process. Activation of
such continuity and contingency measures shall be undertaken in the presence
of representatives of political parties and citizen's arm of the Commission who
shall be notified by the election officer of such activation.
"All political parties and party-lists shall be furnished copies of said continuity
plan at their official addresses as submitted to the Commission. The list shall be
published in at least two newspaper of national of circulation and shall be posted
at the website of the Commission at least fifteen (15) days prior to the electoral
activity concerned."
SEC. 12. Section 10 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC.14. Examination and Testing of Equipment or Device of the AES and
Opening of the Source Code for Review. - The Commission shall allow the
political parties and candidates or their representatives, citizens' arm or their
representatives to examine and test.
"The equipment or device to be used in the voting and counting on the day of the
electoral exercise, before voting start. Test ballots and test forms shall be
provided by the Commission.
"Immediately after the examination and testing of the equipment or device,
parties and candidates or their representatives, citizen's arms or their
representatives, may submit a written comment to the election officer who shall
immediately transmit it to the Commission for appropriate action.
 "The election officer shall keep minutes of the testing, a copy of which shall be
submitted to the Commission together with the minute of voting."
"Once an AES technology is selected for implementation, the Commission shall
promptly make the source code of that technology available and open to any
interested political party or groups which may conduct their own review thereof."
SEC. 13. Section 11 of republic Act No. 8436 is hereby amended to read as follows:
"SEC.15. Official Ballot. - The Commission shall prescribe the format of the
electronic display and/or the size and form of the official ballot, which shall
contain the titles of the position to be filled and/or the proposition to be voted
upon in an initiative, referendum or plebiscite. Where practicable, electronic
displays must be constructed to present the names of all candidates for the same
position in the same page or screen, otherwise, the electronic displays must be
constructed to present the entire ballot to the voter, in a series of sequential
pages, and to ensure that the voter sees all of the ballot options on all pages
before completing his or her vote and to allow the voter to review and change all
ballot choices prior to completing and casting his or her ballot. Under each
position to be filled, the names of candidates shall be arranged alphabetically by
surname and uniformly indicated using the same type size. The maiden or
married name shall be listed in the official ballot, as preferred by the female
candidate. Under each proposition to be vote upon, the choices should be
uniformly indicated using the same font and size.
"A fixed space where the chairman of the board of election inspector shall affix
her/her signature to authenticate the official ballot shall be provided.
"For this purpose, the Commission shall set the deadline for the filing of
certificate of candidacy/petition of registration/manifestation to participate in the
election. Any person who files his certificate of candidacy within this period shall
only be considered as a candidate at the start of the campaign period for which
he filed his certificate of candidacy: Provided, That, unlawful acts or omissions
applicable to a candidate shall effect only upon that start of the aforesaid
campaign period: Provided, finally, That any person holding a public appointive
office or position, including active members of the armed forces, and officers, and
employees in government-owned or-controlled corporations, shall be
considered ipso factor resigned from his/her office and must vacate the same at
the start of the day of the filing of his/her certification of candidacy.
"Political parties may hold political conventions to nominate their official
candidate within thirty (30) days before the start of the period for filing certificate
of candidacy.
"With respect to a paper-based election system, the official ballots shall be
printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at
the price comparable with that of private printers under proper security measures
which the Commission shall adopt. The Commission may contact the services of
private printers upon certification by the National Printing Office/Bangko Sentral
ng Pilipinas that it cannot meet the printing requirements. Accredited political
parties and deputized citizen's arms of the Commission shall assign watchers in
the printing, storage and distribution of official ballots.
"To prevent the use of fake ballots, the Commission through the Committee shall
ensure that the necessary safeguards, such as, but not limited to, bar codes,
holograms, color shifting ink, microprinting, are provided on the ballot.
"The official ballots shall be printed and distributed to each city/municipality at the
rate of one ballot for every registered voter with a provision of additional three
ballots per precinct."
SEC. 14. Section 13 of republic Act No. 8436 is hereby amended to read as follows:
"SEC. 17. Ballot box. - Where applicable, there shall be in each precinct on
election day a ballot box with such safety features that the Commission may
prescribe and of such size as to accommodate the official ballots."
SEC. 15. Section 14 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC. 18. Procedure in voting. - The Commission shall prescribe the manner and
procedure of voting, which can be easily understood and followed by the voters,
taking into consideration, among other things, the secrecy of the voting."
SEC. 16. Section 15 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC. 19. Closing of polls.- The Commission shall prescribe the time, manner
and procedure of closing the polls and the steps for the correct reporting of votes
cast and the proper conduct of counting for areas covered by the AES."
SEC. 17. Section 16 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC. 20. Notice of Designation of Counting Centers. - The election officer shall
post prominently in his/her office, in the bulletin boards at the city/municipal hall
and in three other conspicuous places in the city/municipality, the notice on the
designated counting center(s) for at least three weeks prior to election day. The
notice shall specify the precincts covered by each counting center and the
number of registered voters in each of said precincts. The election officer shall
also furnish a copy of the notice to the headquarters or official address of the
political parties or independent candidates within the same period. The election
officer shall post in the Commission website concerned the said notice and
publish the notice in the local newspaper. Where the polling place or voting
center is also the designated counting center, such information shall be
contained in the notice.
"The Commission may not designate as counting center any building or facility
located within the premises of a camp, reservation compound, headquarters,
detachment, or field office of the military, police, prison or detention bureau, or
any law enforcement or investigation agency."
SEC. 18. Section 17 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC. 21. Counting procedure. - The Commission shall prescribe the manner
and procedure of counting the votes under the automated system: Provided, that
 apart from the electronically stored result, thirty (30) copies of the election return
are printed."
SEC. 19. Section 18 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC. 22. Electronic Returns. - Each copy of the of the printed election returns
shall bear appropriate control marks to determine the time and place of printing.
Each copy shall be signed and thumbmarked by all the members of the board of
election inspectors and the watchers present. If any member of the board of
election inspectors present refuses to sign, the chairman of the board shall note
the same copy in each copy of the printed election returns. The member of the
board of election inspectors concerned refusing to sign shall be compelled to
explain his or her refusal to do so. Failure to explain an unjustifiable refusal to
sign each copy of the printed election return by any member of the board of
election inspectors shall be punishable as provided in this Act. The chairman of
the boards shall then publicly read and announce the total numbers of registered
voters, the total number of voters who actually voted and the total numbers of
votes obtained by each candidate based on the election returns.
"Thereafter, the copies of the election returns shall be sealed and placed in the
proper envelopes for distribution as follows:
"A. In the election of president, vice-president, senators and party-list system;
1) The first copy shall be delivered to the city or municipal board of canvassers;
2) The second copy, to the congress, directed to the President of the Senate;
3) The third copy, to the commission;
4) The fourth copy, to the citizen's arm authorized by the Commission to conduct
an unofficial count
5) The fifth copy, to the dominant majority party as determined by the
Commission in accordance with law;
6) The six copy, to the dominant minority party as determined by the Commission
in accordance with law; and
7) The seventh copy shall be deposited inside the compartment of the ballot box
for valid ballots.
8) The eight copy to the Provincial Board of canvassers;
9) The ninth to the eighteenth copies, shall be given to the ten (10) accredited
major national parties, excluding the dominant majority and minority parties, in
accordance with a voluntary agreement among them. If no such agreement is
reached, the Commission shall decide which parties shall receive the copies on
the basis of the criteria provided in Section 26 of Republic Act No. 7166;
10) The nineteenth and twentieth copies, to the two accredited major local parties
in accordance with a voluntary agreement among them. If no such agreement is
reached, the commission shall decide which parties shall receive the copies on
the basis of criteria analogous to that provided in Section 26 of Republic Act No.
7166;
11) The twenty-first to the twenty-fourth copies, to national broadcast or print
media entities as may be equitably determined by the Commission in view of
propagating the copies to the widest extent possible;
12) The twenty-fifth and twenty-six copies, to local broadcast or print media
entities as may be equitably determined by the Commission in view of
propagating the copies to the widest extent possible; and
13) The twenty-seventh to the thirtieth copies, to the major citizen's arms,
including the accredited citizen's arm, and other non-partisan groups or
organization enlisted by the Commission pursuant to Section 52(k) of Batas
Pambansa Blg. 881. Such citizens' arm, groups and organization may use the
four certified copies of election returns for the conduct of citizens' quick counts at
the local or national levels;
"B. In the election of local officials and members of the House of
Representatives:
1) The First copy shall be delivered to the city or municipal board of canvassers;
2) The second copy, to the Commission;
3) The third copy, to the provincial board of canvassers;
4) The fourth copy, to the citizens' arm authorized by the Commission to conduct
an unofficial count;
5) The fifth copy, to the dominant majority party as determined by the
Commission in accordance with law;
6) The sixth copy, to the dominant minority party as determined by the
Commission in accordance with law; and
7) The seventh copy shall be deposited inside the copy shall deposited inside the
compartment of the ballot box for valid ballots.
8) The eight copy to be posted conspicuously on a wall within the premises of the
polling place or counting center;
9) The ninth to the eighteenth copies, shall be given to the ten (10) accredited
major national parties, excluding the dominant majority and minority parties, in
accordance with a voluntary agreement among them. If no such agreement is
reached, the Commission shall decide which parties shall receive the copies on
the basis of the criteria provided in Section 26 of Republic Act No. 7166;
10) The nineteenth and twentieth copies shall be given to the two accredited
major local parties in accordance with a voluntary agreement among them. If no
such agreement is reached, the Commission shall decide which parties shall
receive the copies on the basis of criteria analogous to that provided in Section
26 of republic Act No. 7166;
11) The twenty-first to the twenty-fifth copies, to national broadcast or print media
entities as may be equitably determined by the Commission in view of
propagating the copies to the widest extent possible;
12) The twenty-sixth and twenty-seventh copies, to local broadcast or print media
entities as may be equitably determined by the Commission in view of
propagating the copies to the widest extent possible; and
13) The twenty-eighth to the thirtieth copies to the major citizens' arms, including
the accredited citizens' arm, and other non-partisan groups or organization
enlisted by the Commission pursuant to section 52(k) of Batas Pambansa Blg.
881. Such citizens' arms, groups and organization may use the five certified
copies of election returns for the conduct of citizens' quick counts at the local or
national levels.
"Immediately after the eight copy is printed, the poll clerk shall announce the
posting of said copy on a wall within the premises of the polling place or counting
center, which must be sufficiently lighted and accessible to the public. Any
person may view or capture an image of the election return by means of any data
capturing device such as, but not limited to cameras at any time of the day for
forty-eight (48) hours following its posting. After such period, the chairman of the
board of election inspectors shall detach the election return from the wall and
keep the same in his custody to be produced as may be requested by any voter
for image or data capturing or for any lawful purpose as may be ordered by
competent authority.
"Within one hour after the printing of the election returns, the chairman of the
board of election inspectors or any official authorized by the Commission shall, in
the presence of watchers and representatives of the accredited citizens' arm,
political parties/candidates, if any, electronically transmit the precinct results to
the respective levels of board of canvassers, to the dominant majority and
minority party, to the accredited citizen's arm, and to the Kapisanan ng mga
Brodcaster ng Pilipinas (KBP).
"The election results at the city/municipality canvassing centers shall be
transmitted in the same manner by the election officer or any official authorized
by the commission to the district or provincial canvassing centers.
"The election returns transmitted electronically and digitally signed shall be
considered as official election results and shall be used as the basis for the
canvassing of votes and the proclamation of a candidate."
"After the electronic results have been transmitted additional copies not to
exceed thirty (30) may be printed and given to requesting parties at their own
expense."
SEC. 20. Section 21 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC. 25. Canvassing by Provincial, City, District and Municipal Boards of
Canvassers. - The City or Municipal board of canvassers shall canvass the votes
for the president, vice-president, senators, and parties, organization or coalitions
participating under the party-list system by consolidating the electronically
transmitted results contained in the data storage devices used in the printing of
the election returns. Upon completion of the canvass, it shall print the certificate
of canvass of votes for president, vice-president, senators and members of the
House of Representatives and elective provincial officials and thereafter,
proclaim the elected city or municipal officials, as the case may be.
"The city board of canvassers of cities comprising one or more legislative districts
shall canvass the votes for president, vice-president, senators, members of the
House Representatives and elective city officials by consolidating the certificates
of canvass electronically transmitted or the results contained in the data storage
devices used in the printing of the election returns. Upon completion of the
canvass, the board shall procedure the canvass of votes for president, vice-
president, and senators thereafter, proclaim the elected members of the House
of Representatives and city officials.
"In the Metro Manila area, each municipality comprising a legislative district shall
have a district board of canvassers which shall canvass the votes for president,
vice-president, senators, members of the House of Representatives and elective
municipal officials by consolidating the electronically transmitted results or the
results contained in the data storage devices used in the printing of the election
returns. Upon completion of the canvass, it shall produce the certificate of
canvass of votes for president, vice-president, and senators and thereafter,
proclaim the elected members of the House Representatives and municipal
officials.
"Each component municipality in a legislative district in the Metro Manila area
shall have a municipal board of canvassers which shall canvass the votes for
president, vice-president, senators, members of the house of Representatives
and elective municipal officials by consolidating the results electronically
transmitted from the counting centers or the results contained in the data storage
devices used in the printing of the election returns. Upon completion of the
canvass, it shall prepare the certificate of canvass of votes for president, vice-
president, senators, members of the House of Representatives and thereafter,
proclaim the elected municipal officials.
"The district board of canvassers of each legislative district comprising two
municipalities in the Metro Manila area shall canvass the votes for president,
vice-president, senators and members of the House of Representatives by
consolidating the certificates of canvass electronically transmitted from the
city/municipal consolidating centers or the results contained in the data storage
devices submitted by the municipal board of canvassers of the component
municipalities. Upon completion of the canvass. It shall produce a certificate of
 the canvass votes for president, vice-president, senators and thereafter, proclaim
the elected members of the House of Representatives in the legislative district.
"The district/provincial board of canvassers shall canvass the votes for president,
vice-president, senators, members of the House of Representatives and elective
provincial officials by consolidating the results electronically transmitted from the
city/municipal consolidating centers or the results contained in the data storage
devices submitted by the board of canvassers of the municipalities and
component cities. Upon completion of the canvass, it shall produce the
certificates of canvass votes for president, vice-president and senators and
thereafter, proclaim the elected members of the House of Representatives and
the provincial official.
"The municipal, city, district and provincial certificates of canvass of votes shall
each be supported by a statement of votes.
"Within one hour after the canvassing, the Chairman of the district or provincial
Board of Canvassers or the city board of canvassers of those cities which
comprise one or more legislative districts shall electronically transmit the
certificate of canvass to the commission sitting as the national board of
canvassers for senators and party-list representatives and to the Congress as
the National Board of Canvassers for the president and vice president, directed
to the President of the Senate.
"The Commission shall adopt adequate and effective measures to preserve the
integrity of the certificates of canvass transmitted electronically and the results in
the storage devices at the various levels of the boards of canvassers.
"The certificates of canvass transmitted electronically and digitally signed shall be
considered as official election results and shall be used as the basis for the
proclamation of a winning candidate."
SEC. 21. Section 22 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC. 26. Number of Copies of Certificates of Canvass of Votes and their
distribution. - (a) The certificate of canvass of votes for president, vice-president,
senators, members of the House of Representatives, parties, organization or
coalitions participating under the party-list system and elective provincial officials
shall be produced by the city or municipal board of canvassers and distributed as
follows:
"(1) The first copy shall be delivered to the provincial board of canvassers for use
in the canvass of election results for president, vice-president, senators,
members of the House of Representatives, parties, organization or coalitions
participating under the party-list system and elective provincial officials;
"(2) The second copy shall be sent to the Commission;
"(3) The third copy shall be kept by the chairman of the board; and
"(4) The fourth copy shall be given to the citizen arm designated by the
Commission to conduct an unofficial count. It shall be the duty of the citizens' arm
to furnish independent candidates' copies of the certificate of canvass at the
expense of the requesting party.
"(5) The fifth copy to Congress, directed to the President of Senate;
"(6) The sixth copy to be posted on a wall within the premises of the canvassing
center;
"(7) The seventh and eighth copies shall be given to the dominant majority and
minority parties;
"(8) The ninth to eighteenth copies shall be given to the ten (10) accredited major
national parties, excluding the dominant majority and minority parties, in
accordance with a voluntary agreement among them. If no such agreement is
reached, the Commission shall decide which parties shall receive the copies on
the basis of the criteria provided in Section 26 of Republic Act no. 7166;
"(9) The nineteenth and twentieth copies shall be given to the two accredited
major local parties in accordance with a voluntary agreement among them. If no
such agreement is reached, the Commission shall decide which parties shall
receive the copies on the basis of criteria analogous to that provided in Section
26 of Republic Act No. 7166;
"(10) The twenty-first to the twenty-fifth copies to national broadcast or print
media entities as may be equitably determined by the Commission in view of
propagating the copies to the widest extent possible;
"(11) The twenty-six and twenty-seven copies, to local broadcast or print media
entities as may be equitably determined by the Commission in view of
propagating the copies to the widest extent possible; and
"(12) The twenty-eighth to the thirtieth copies, to the major citizens' arms,
including the accredited citizens' arm, and other non-partisan groups or
organizations enlisted by the commission pursuant to Section 52(k) of Batas
Pambansa Blg. 881. Such citizens' arms, groups and organization may use the
three certified copies of election returns for the conduct of citizens' quick counts
at the local or national levels;
"The board of canvassers shall furnish all other registered parties copies of the
certificate of canvass at the expense of the requesting party.
"(b) The certificate of canvass of votes for president, vice-president and senators,
parties, organization or coalitions participating under the party-list system shall
be produced by the city boards of canvassers of cities comprising one or more
legislative districts, by provincial boards of canvassers and by district boards of
canvassers in the Metro Manila area, and other highly urbanized areas and
distributed as follows:
"(1) The first copy shall be sent to congress , directed to the president of the
Senate for use in the canvass of election results for president and vice-president;
"(2) The second copy shall be sent to the Commission for use in the canvass of
the election results for senators;
"(3) The third copy shall be kept the chairman of the board; and
"(4) The fourth copy shall be given to the citizens' arm designated by the
Commission to conduct an unofficial count. It shall be the duty of the citizens' arm
to furnish independent candidates copies of the certificate of canvass at the
expense of the requesting party.
"(5) The fifth copy to Congress, directed to the President of the Senate;
"(6) The six copy to be posted on a wall within the premises of the canvassing
center;
"(7) The seventh and eight copies to the dominant majority and minority parties;
"(8) The ninth and tenth copies to two accredited major national parties
representing the majority and minority, excluding the dominant majority and
minority parties, to be determined by the Commission on the basis of the criteria
provided in Section 26 of Republic Act No. 7166;
"(9) The eleventh to thirteenth copies to broadcast media entities as may be
equitably determined by the Commission in view of propagating the copies to the
widest extent possible; and
"(10) The fourteenth copy to another citizens' arm or in the absence thereof, to a
non-partisan group or organization enlisted by the Commission pursuant to
Section 52(k) of Batas Pambansa Blg. 881. Such citizens' arm or non-partisan
group or organization may use the copy of election return for the conduct of
citizens' quick counts at the local or national levels.
"The board of canvassers shall furnish all other registered parties copies of the
certificate of canvass at the expense of the requesting party.
"(c) The certificates of canvass printed by the provincial, district, city or municipal
boards of canvassers shall be signed and thumb marked by the chairman and
members of the board and the principal watchers, if available. Thereafter, it shall
be sealed and placed inside an envelope which shall likewise be properly sealed.
"In all instances, where the board of Canvassers has the duty to furnish
registered political parties with copies of the certificate of canvass, the pertinent
election returns shall be attached thereto, where appropriate."
"Immediately after the six copy and its supporting statement of votes are printed,
the chairman of the board of canvassers shall announce the posting of said prints
on a wall within the premises of the canvassing center, which must be sufficiently
lighted and accessible to the public. Any person may view or capture an image of
the Certificate of Canvass or the supporting statement of votes by means of any
data capturing device such as, but not limited to, cameras at any time of the day
for forty-eight (48) hours following the posting. After such period, the chairman of
the board of canvassers shall detach the election return from the wall and keep
the same in his custody to be produced as may be requested by any voter for
image or data capturing or for any lawful purpose as may be ordered by
competent authority."
SEC. 22. Section 23 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC. 27. National Board of Canvassers for Senators and Party-List
Representatives. - The chairman and members of the Commission on Election
sitting en banc, shall compose the national board of canvassers for senators and
party-list representatives. It shall canvass the results by consolidating the
certificates of canvass electronically transmitted. Thereafter, the national board
shall proclaim the winning candidates for senators and party-list representatives."
SEC. 23. Section 24 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC. 28. Congress as the National Board of Canvassers for President and Vice-
President. - The Senate and the House of Representatives in joint public session
shall compose the national board of canvassers for president and vice-president.
The certificate of canvass for president and vice-president duly certified by the
board of canvassers of each province or city, shall be electronically transmitted to
the Congress, directed to the president of the Senate. Upon receipt of the
certificates of canvass, the President of the Senate shall, not later than thirty (30)
days after the day of the election, open all the certificates in the presence of the
Senate and the House of representatives in joint public session and the
Congress upon determination of the authenticity and the due execution thereof in
the manner provided by law, canvass all the results for president and vice-
president and thereafter, proclaim the winning candidates."
SEC. 24. A new Section 29 is hereby provided to reads as follows:
"SEC 29. Random Manual Audit. - Where the AES is used, there shall be a
random manual audit in one precinct per congressional district randomly chosen
by the Commission in each province and city. Any difference between the
automated and manual count will result in the determination of root cause and
initiate a manual count for those precincts affected by the computer or procedural
error."
SEC. 25. A new Section 30 is hereby provided to read as follows:
"Sec. 30. Authentication of Electronically Transmitted Election Results. - The
manner of determining the authenticity and due execution of the certificates shall
conform with the provisions of Republic Act No. 7166 as may be supplement or
modified by the provision of this Act, where applicable, by appropriate
authentication and certification procedures for electronic signatures as provided
 in Republic Act No. 8792 as well as the rules promulgated by the Supreme Court
pursuant thereto."
SEC. 26. Section 25 of Republic Act No. 8436 is hereby amended to reads as follows:
"SEC. 31. Stakeholder education and training. - The Commission shall, not later
than six months before the actual automated election exercise, undertake a
widespread stakeholder education and training program, through newspaper of
general circulation, radio, television and other media forms, as well as through
seminars, symposia, fora and other nontraditional means, to educate the public
and fully inform the electorate about the AES and inculcate values on honest,
peaceful, orderly and informed elections.
"Such program shall ensure the acceptance and readiness of the following
stakeholders to understand and appreciate the benefits of the AES:
1. General public/voters;
2. Commission's staff;
3. Department of Education, Department of Finance (municipal, city and
provincial treasurers) and all other government agencies who will play a
role in the electoral exercise;
4. Local government officials (provincial, municipal, barangay levels);
5. Incumbent elected officials in the legislative and executive
departments;
6. Political parties and candidates;
7. Members of the military and police.
"The general public or voters training will focus on building the capability to use
the automated system to cast their vote, as well as general appreciation of the
AES. All other stakeholders mentioned above will receive additional information
in order to build a deeper understanding of the voting, counting, canvassing
procedures, so that they may act as advocates of he AES.
"The Commission together with and in support of accredited citizens' arms shall
carry out a continuing and systematic campaign through newspaper of general
circulation, radio and other media forms, as well as through seminars, symposia,
fora and other nontraditional means to educate the public and fully inform the
electorate about the AES and inculcate values on honest, peaceful and orderly
election."
SEC. 27. Section 27 of Republic Act No. 8436 is hereby amended to read as follows:
SEC. 33. Joint Congressional Oversight Committee. - An Oversight Committee is
hereby created composed of seven members each from the Senate and the
House of Representatives, four of whom shall come from the majority and three
from the minority, to monitor and evaluate the implementation of this Act. A
written report to the Senate and the House of Representatives shall be submitted
by the Advisory Council within six months from the date of election. The oversight
committee shall conduct a mandatory review of this Act every twelve (12) months
from the date of the last regular national or local elections."
"The oversight committee shall conduct a comprehensive assessment and
evaluation of the performance of the different AES technologies implemented
and shall make appropriate recommendations to Congress, in session
assembled, specifically including the following:
1. An assessment and comparison of each of the AES technologies utilized,
including their strengths, weakness, applicability or inapplicability in specific
areas and situations;
2. An evaluation of their accuracy through a comparison of a random sample of
the AES election results with a manual tabulation, and the conduct of similar
tests;
3. As to the scope of AES implementation in the subsequent elections, provide
for recommendations as to whether any of the following should be adopted:
"a. Further test application of the AES or a particular AES technology
used in the 2007 elections, whether in the same or others areas;
"b. An increase or enlargement of areas for implementation of the AES
or an AES technology and not a full implementation; or
"c. A full implementation of the AES.
4. As to the kind of AES technology, provide for proposals as to whether:
a) A particular AES technology should no longer be utilized for being
obsolete, inapplicable, inaccurate or with a defect which cannot be
remedied;
b) An enhancement or improvement is needed to an AES technology
which was used in the 2007 election to make it more functional,
appropriate and accurate;
c) A particular AES technology is already appropriate and should be
utilized fully for subsequent election; or
d) The testing or adoption of new technologies which may have
emerged after the 2007 elections is needed."
SEC. 28. Section 29 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC. 35. Prohibited Acts and Penalties. - The following shall be penalized as
provided in this Act, whether or not said acts affect the electoral process or
results:
"(a) Utilizing without authorization, tampering with, damaging, destroying or
stealing:
"(1) Official ballots, election returns, and certificates of canvass of votes
used in the system; and
"(2) Electronic devices or their components, peripherals or supplies
used in the AES such as counting machine, memory pack/diskette,
memory pack receiver and computer set;
"(b) Interfering with, impeding, absconding for purpose of gain, preventing the
installation or use of computer counting devices and the processing, storage,
generation and transmission of election results, data or information;
"(c) Gaining or causing access to using, altering, destroying or disclosing any
computer data, program, system software, network, or any computer-related
devices, facilities, hardware or equipment, whether classified or declassified;
"(d) Refusal of the citizens' arm to present for perusal its copy of election return
to the board of canvassers;
"(e) Presentation by the citizens' arm of tampered or spurious election returns;
"(f) Refusal or failure to provide the dominant majority and dominant minority
parties or the citizens'' arm their copy of election returns; and
"(g) The failure to post the voters' list within the specified time, duration and in the
designated location shall constitute an election offense on the part the election
officer concerned."
"Any person convicted for violation of this Act, except those convicted of the
crime of electoral sabotage, shall be penalized with imprisonment of eight years
and one day to twelve (12) years without possibility of parole, and perpetual
disqualification to hold public office and deprivation of the right of suffrage.
Moreover, the offender shall be perpetually disqualified to hold any non-elective
public office."
SEC. 29. Section 30 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC. 36. Applicability. - The provision of Batas Pambansa Blg. 881, as
amended, otherwise known as the 'Omnibus Election Code of the Philippines',
and other election laws not inconsistent with this Act shall apply."
SEC. 30. Section 31 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC. 37. Rules and Regulations. - The Commission shall promulgate rules and
regulation for the implementation and enforcement of this Act.
"Notwithstanding the foregoing canvassing procedure, the Commission is
authorized to prescribe other manner or procedure for the canvassing and
consolidation of votes as technology evolves, subject to the provisions of Section
7 hereof on the minimum capabilities of the AES and other pertinent laws."
SEC. 31. Section 25 of Republic Act No. 7166 is hereby amended to read as follows:
"Sec 25. Manner of Counting Votes. - In addition to the requirement in the fourth
paragraph of Section 12 of the Republic Act No. 6646 and Section 210 of the
Omnibus Election Code, in reading the official ballots during the counting, the
chairman, the poll clerk and the third member shall assume such positions as to
provide the watchers and the members of the public as may be conveniently
accommodated in the polling place, an unimpeded view of the ballot being ready
by the chairman, of the election return and the tally board being simultaneously
accomplished by the, poll clerk and the third member respectively, without
touching any of these election documents. The table shall be cleared of all
unnecessary writing paraphernalia. Any violation of this requirement shall
constitute an election offense punishable under Section 263 and 264 the
Omnibus Election Code.
"The chairman shall first read the votes for national positions.
"Any violation of this Section, or its pertinent portion, shall constitute an election
offense and shall be penalized in accordance with Batas Pambansa Blg. 881.
Sec. 32. Section 212 of Batas Pambansa Blg. 881 as amended, is hereby to read as
follows:
"SEC. 212. Election Returns. - The board of election inspectors shall prepare the
election returns simultaneously with the counting of votes in the polling places as
prescribe in Section 210 hereof. The recording of vote shall be made as
prescribed in said section. The entry of votes in words and figures for each
candidate shall be closed with the signature and the clear imprint of the
thumbmark of the right hand of all the members, likewise to be affixed in full view
of the public, immediately after the last vote recorded or immediately after the
name of the candidate who did not receive any vote."
"The returns shall also show the date of the election, the polling place, the
barangay and the city or municipality in which it was held, the total number of
ballots found in the compartment for valid ballots, the total number of valid ballots
withdrawn from the compartment for spoiled ballots because they were
erroneously placed therein, the total number of excess ballots, the total number
of marked or void ballots, and the total numbers of votes obtained by each
candidate, writing out the said number in words and figures and, at the end
thereof, the board of election inspectors shall certify that the contents are correct.
The returns shall be accomplished in a single sheet of paper, but if this is not
possible, additional sheets may be used which shall be prepared in the same
manner as the first sheet and likewise certified by the board of election
inspectors."
"The commission shall take steps so that the entries on the first copy of the
election returns are clearly reproduced on the second, third, fourth, fifth, sixth
copies thereof, and for the purpose this Commission shall use a special kind of
paper."
"Immediately upon the accomplishment of the election return for national
position, the poll clerk shall announce the posting of the second copy of the
election return on a wall with sufficient lighting within the premises of the polling
place or counting center. He shall then proceed to do the same in the presence
of the other members of the Board, the watchers and those present in the polling
place or counting center. Without delay and, when feasible, he shall secure an
image of the election return using a secured data capturing device and
immediately thereafter, while in the premises of the polling place or counting
center, directly print thirty (30) copies of the election return. Once the prints have
been produced, the poll clerk shall call the other members of the board to
authenticate each print copy by closely comparing the same with the election
return posted on the wall in the presence of the watchers and within view of the
public. If the Board finds each print a faithful reproduction of the election return,
all members thereof shall annotate and sign a certification to that effect on the
bottom front of the print.
"Each certified printed copy shall be placed in an envelope and distributed as
herein provided. Designated recipients of the certified print copies may receive
their copies at the polling place or counting center.
"Immediately upon the accomplishment of the election returns for local position,
the second copy of the same shall be posted on a wall with sufficient lighting
within the premises of the polling place.
"The other copies of election returns for both national and local position shall be
sealed in the presence of the watchers and the public, and placed in the proper
envelope, which shall likewise be sealed and distributed as herein provided."
"Any election return with a separately printed serial number or which bears a
different serial number from that assigned to the particular polling place
concerned shall not be canvassed. This is to be determined by the board
canvassers prior to its canvassing on the basis of the certification of the
provincial, city or municipal treasurer as to the serial number of the election
return assigned to said voting precinct, unless the Commission shall order in
writing for its canvassing, stating the reason for the variance in serial numbers."
"If the signatures and/or thumbmarks of the members of the board of election
inspectors or some of them as required in this provision are missing in the
election returns, the board of canvassers may summon the members of the
board of election inspectors concerned to complete the returns.
"The citizen's arm is mandated to present for perusal its copy of the election
return to the board of election canvassers upon the request of any interested
candidate.
"Any violation of this election or its pertinent portion, shall constitute an election
offense and shall be penalized in accordance with Batas Pambansa Blg. 881
"In addition, the following shall likewise be guilty of an election offense:
"(a) Any Person who removes the election return posted on the wall, whether
within or after the prescribed forty-eight (48) hours of posting, or defaces the
same in any manner;
"(b) Any person who simulates an actual election return, or a print or digital copy
thereof;
"(c) Any person who simulates the certification in a print of an election return;
"(d) The chairman or any member of the board of election inspectors who, during
the prescribe period of posting, removes the election return from the wall on
which it had been posted other than for the purpose of immediately transferring it
to a more suitable place;
"(e) The chairman or any member of the board of election inspectors who signs
or authenticates a print of the election return outside of the polling place; and
"(f) The chairman or any member of the board of election inspectors who signs or
authenticates a print which bears an image different from the election return
produced after counting and posted on the wall."
SEC. 33. Section 27 of Republic Act No. 7166, as amended by Republic Act No. 8045 and
Republic Act No. 8173 is hereby further amended to read as follows:
SEC. 27. Number of Copies of Election Returns and their Distribution. - The
board of election inspectors shall prepare in handwriting the election returns in
their respective polling place, in the number of copies herein provided and in the
form to be prescribed and provided by the Commission.
"The copies of election returns shall be distributed by the chairman of the board
of election inspectors as follows:
"(a) In the election of president, vice-president, senators and members of the
House of Representatives including the party-list representatives:
"(1) The first copy shall be delivered to the city or municipal board of
canvassers;
"(2) The second copy to be posted on a wall within the premises of the
polling place;
 "(3) The third copy, to the congress, directed to the President of the
Senate;
"(4) The fourth copy. to the Commission;
"(5) The fifth copy, to the dominant majority party as determined by the
Commission in accordance with law;
"(6) The sixth copy, to the dominant minority party as determined by the
Commission in accordance with law;
"(7) The seventh copy, to a citizens' authorized by the Commission to
conduct an unofficial count: Provided, however, That the accreditation
of the citizens' arm shall be subject to the provision of Section 52(k) of
Batas Pambansa Bldg. 881; and
"(8) The eight copy shall be deposited inside the compartment of the
ballot box for valid ballots; and
"(b) In the election of local officials;
"(1) The First copy shall be delivered to the city or municipal board of
canvassers;
"(2) The second copy to be posted on a wall within the premises of the
polling place;
"(3) The third copy, to the Commission;
"(4) The fourth copy, to the provincial board of canvassers;
"(5) The fifth copy, to the dominant majority party as determined by the
Commission in accordance with law;
"(6) The sixth copy, to the dominant minority party as determined by the
Commission in accordance with law;
"(7) The seventh copy, to a citizens' authorized by the Commission to
conduct an unofficial count: Provided, however, That the accreditation
of the citizens' arm shall be subject to the provisions of Section 52(k) of
Batas Pambansa Bldg. 881; and
"(8) The eighth copy shall be deposited inside the compartment of the
ballot box for valid votes.
"The copy of the election return posted on the wall shall be open for public
viewing at any time of the day for forty-eight (48) hours following its posting. Any
person may view or capture an image of the election return by means of any data
capturing device such as, but not limited to, cameras at any time of the day for
forty-eight (48) hours following its posting. After the prescribed period for posting,
the chairman of the board of election inspectors shall collect the posted election
returns and keep the same in his custody to be produced for image or data
capturing as may be requested by any voter or any lawful purpose as may be
ordered by competent authority.
"Except for those copies that are required to be delivered, copies of election
returns may be claimed at the polling place. Any unclaimed copy shall be brought
by the chairman of the board of election inspectors to the canvassing center
where the recipients or their representatives may claim them. Copies still
unclaimed at the canvassing center shall be deemed placed in the custody of the
chairman of the board of election inspectors, who shall produce them when
requested by the recipient or when ordered by a competent authority.
"The Thirty (30) certified print copies of the election return for national positions
shall be distributed as follows:
"(a) The first fourteen (14) copies shall be given to the fourteen (14) accredited
major national parties in accordance with a voluntary agreement among them. If
no such agreement is reached, the Commission shall decide which parties shall
receive the copies on the basis of the criteria provided in Section 26 hereof;
"(b) The next three copies shall be given to the three accredited major local
parties in accordance with a voluntary agreement among them. If no such
agreement is reached, the Commission shall decide which parties shall receive
the copies on the basis of criteria analogous to that provided in Section 26
Hereof;
"(c) The next five copies shall be given to national broadcast or print media
entities as may be equitably determined by the Commission in view of
propagating the copies to the widest extent possible;
"(d) The next two copies shall be given to local broadcast or print media entities
as may be equitably determined by the Commission in view of propagating the
copies to the widest extent possible;
"(e) The next four copies to the major citizens' arms, including the accredited
citizens' arms and other non-partisan groups or organizations enlisted by the
Commission pursuant to Section 52(k) of Batas Pambansa Blg. 881;
"(f) The next copy to be placed inside the compartment of the ballot box for valid
ballots; and
"(g) The last copy to the provincial board of canvassers."
"The certified print copies may be claimed at the polling place. Any unclaimed
copy shall be brought by the chairman of the board of election inspectors to the
canvassing center where the recipients or representatives may claim them.
Copies still unclaimed at the canvassing center shall be placed in the custody of
 the chairman of the board election inspectors, who shall produce them when
requested by the recipient or when ordered by a competent authority.
"Any provision of law to the contrary notwithstanding, any of the recipients of the
print or digital copies of the election return may conduct an unofficial
consolidation of votes and may announce the result to the public.
"The Commission shall post its digital files in its website for the public to view or
download at any time of the day. The Commission shall maintain the files at least
three years from the date of posting.
"Any violation of this section, or its pertinent portion, shall constitute an election
offense and shall be penalized in accordance with Batas Pambansa Blg. 881;
SEC. 34. Sec. 26 of Republic Act No. 7166 is hereby amended to read as follows:
"SEC. 26. Official Watchers. - Every registered political party or coalition of
political parties, and every candidate shall each be entitled to one watcher in
every polling place and canvassing center: Provided That, candidates for the
Sangguniang Panlalawigan, Sangguniang Panlunsod, or Sangguniang Bayan
belonging to the same slate or ticket shall collectively be entitled to only one
watcher.
"The dominant majority party and dominant minority party, which the Commission
shall determine in accordance with law, shall each be entitled to one official
watcher who shall be paid a fixed per diem of four hundred pesos (400,00).
"There shall also recognized six principal watchers, representing the six
accredited major political parties excluding the dominant majority and minority
parties, who shall be designated by the Commission upon nomination of the said
parties. These political parties shall be determined by the Commission upon
notice and hearing on the basis of the following circumstances:
"(a) The established record of the said parties, coalition of groups that now
composed them, taking into account, among other things, their showing in past
election;
"(b) The number of incumbent elective officials belonging to them ninety (90)
days before the date of election;
"c) Their identifiable political organizations and strengths as evidenced by their
organized/chapters;
"(d) The ability to fill a complete slate of candidates from the municipal level to
the position of President; and
"(e) Other analogous circumstances that may determine their relative
organizations and strengths."
Sec. 35. Section. 206 of Batas Pambansa Blg. 881 is hereby amended to read as follows:
"SEC. 206 Counting to be Public and without Interruption. - As soon as the voting
is finished, the board of election inspectors shall publicly count in the polling
place the votes cast and ascertain the results. The board may rearrange the
physical set up of the polling place for the counting or perform any other activity
with respect to the transition from voting counting. However, it may do so only in
the presence of the watchers and within close view of the public. At all times, the
ballot boxes and all election documents and paraphernalia shall be within close
view of the watchers and the public.
"The board of election inspectors shall not adjourn or postpone or delay the count
until it has been fully completed, unless otherwise ordered by the Commission.
"The Commission, in the interest of free, orderly, and honest election, may
authorize the board of election inspectors to count the votes and to accomplish
the election return and other forms prescribed under the code in any other place
within a public building in the same municipality or city on account of imminent
danger of widespread violence or similar causes of comparable
magnitude: Provided, That the transfer shall been recommended in writing by the
board of election inspectors by unanimous vote and endorsed in writing by the
majority of watchers present: Provided, further, that the said public building shall
not located within the perimeter of or inside a military or police camp, reservation,
headquarters, detachment or field office nor within the premises of a prison or
detention bureau or any law enforcement or investigation agency.
"Any violation of this section, or its pertinent portion, shall constitute and election
offense and shall be penalized in accordance with Batas Pambansa Blg. 881."
SEC.36. Section 18 of Republic Act No. 6646 is hereby repealed.
SEC.37. Section 30 of Republic Act No. 7166 is hereby amended to read as follows"
"SEC. 30. Congress as the National Board of Canvassers for the Election of
President and Vice President: The Commission en banc as the National Board of
Canvassers for the election of senators: Determination of Authenticity and Due
Execution of Certificates of Canvass.- Congress and the Commission en
banc shall determine the authenticity and due execution of the certificate of
canvas for president and vice - president and senators, respectively, as
accomplished and transmitted to it by the local boards of canvassers, on a
showing that: (1) each certificate of canvass was executed, signed and
thumbmarked by the chairman and member of the board of canvassers and
transmitted or caused to be transmitted to Congress by them; (2) each certificate
of canvass contains the names of all of the candidates for president and vice -
president or senator, as the case may be, and their corresponding votes in words
and their corresponding votes in words and in figures; (3) there exits no
discrepancy in other authentic copies of the document such as statement of
votes of any of its supporting document such as statement of votes by
city/municipality/by precinct or discrepancy in the votes of any candidate in words
and figures in the certificate; and (4) there exist no discrepancy in the votes of
any candidate in words and figures in the certificates of canvass againts the
aggregate number of votes appearing in the election returns of precincts covered
 by the certificate of canvass: Provided, That certified print copies of election
returns or certificates of canvass may be used for the purpose of verifying the
existence of the discrepancy.
"When the certificate of canvass, duly certified by the board of canvass of each
province, city of district, appears to be incomplete, the Senate President or the
Chairman of the Commission, as the case may be, shall require the board of
canvassers concerned to transmit by personal delivery, the election returns form
polling places that were not included in the certificate of canvass and supporting
statements. Said election returns shall be submitted by personal delivery within
two (2) days from receipt of notice.
"When it appears that any certification of canvass or supporting statement of
each province, city of district, appears to be incomplete, the Senate President or
the Chairman of the Commission, as the case may be, shall require the board of
canvassers concerned to transmit by personal delivery, the election returns from
polling places that were not included in the certificate of canvass and supporting
statements. Said election returns shall be submitted by personal delivery within
two (2) days from receipt of notice.
"When it appears that any certificate of canvass or supporting statement of votes
by city/municipality or by precinct bears erasures or alteration which may cast
doubt as to the veracity of the number of votes stated herein and may affect the
result of the election, upon requested of the presidential, vice - presidential or
senatorial candidate concerned or his party, Congress or the Commission en
banc, as the case may be shall , for the sole purpose of verifying the actual the
votes as they appear in the copies if the election returns submitted to it.
"In case of any discrepancy, incompleteness, erasure or alteration as mentioned
above, the procedure on pre-proclamation controversies shall be adopted and
applied as provided in Section 17,18,19 and 20.
"Any person who present in evidence a simulated copy of an election return,
certificate of canvass or statement of votes, or a printed copy of an election
return, certificate of canvass or statement of votes bearing a simulated
certification or a simulated image, shall be guilty of an election offense shall be
penalized in accordance with Batas Pambansa Blg. 881."
SEC.38. Section 15 of Republic Act No.7166 is hereby amended to read as follows:
"SEC.15. Pre - proclamation Cases in Elections for President, Vice-President,
Senator, and Member of the House of Representatives. - For purpose of the
elections for president, vice - president, senator, and member of the House of
Representatives, no pre-proclamation cases shall be allowed on matters relating
to the preparation, transmission, receipt, custody and appreciation of election
returns or the certificates of canvass, as the case may be, expect as provided for
in Section 30 hereof. However, this does not preclude the authority of the
appropriate canvassing body motu propio or upon written complaint of an
interested person to correct manifest errors in the certificate of canvass or
election before it.
"Question affecting the composition or proceedings of the board of canvassers
may be initiated in the board or directly with the Commission in accordance with
Section 19 hereof.
"Any objection on the election return before the city or municipal board of
canvassers, or the municipal certificates of canvass before the provincial board
of canvassers or district board of canvassers in Metro Manila Area, shall
specifically notice in the minutes of their respective proceeding."
SEC. 39. Section 28 of Republic Act No. 7166 is hereby amended as follows:
"SEC. 28. Canvassing by Provincial City, District, and Municipal Board of
Canvassers. - a) The City or municipal of board of canvassers shall canvass the
election return of President, Vice president, Senator and Members of the House
of Representatives and for elective provincial and city or municipal
officials: Provided, That the returns for national positions shall be canvassed first
Upon completion of the canvass, it shall prepare the certificate of canvass for of
Representatives and elective provincial officials, announce the results of the
election for national positions in the city or municipality, and thereafter, proclaims
the elected city or municipal officials, as the case may be.
"b) The city board of canvassers of cities comprising one or more legislative
district shall canvass the election returns for president, vice-president, senator,
members of the House of Representatives and elective city officials: Provided,
That the returns for positions shall be canvassed first. Upon completion of the
canvass, the board shall prepare the certificate of canvass, of president, vice-
president, and senator, announce the results of the election for national positions
in the city, and thereafter, proclaim the elected members of the House of the
Representatives and city officials.
"c) (1) In the Metro Manila Area such municipality comprising a legislative district
shall have district board of canvass the election return for President, Vice-
Presidents, Senator, Members for the House of Representatives and elective
municipal officials: Provided, That the return for national positions shall be
prepare the certificate of canvass for president, vice-presidents, senators,
announce the results of the election for national position in the municipality, and
thereafter, proclaim the elected member of the House of the Representatives and
city officials.
"(2) Each component municipality in a legislative district in the Metro Manila Area
shall have a municipal board of canvassers which shall canvass the election
returns for president, vice-president, senator, members of the House of
representatives and elective municipal officials: Provided, That the returns for
national positions shall be canvassed first. Upon completion of the canvass, it
shall prepare the certificate of canvass for presidents, vice-presidents, senators,
and members of the House of the Representatives, announce the results of the
election for national position in the municipality, and thereafter, proclaim the
elected municipal officials.
"(3) The district board of canvassers of each legislative district comprising two
municipalities in Metro Manila area shall canvass the certificate of canvass the
for President, Vice-Presidents, Senator and Members of the House of
representatives submitted by the municipal board of canvassers of the
Component municipalities. Upon completion of the canvass, it shall prepare a
certificate of canvass for president, vice-president, and senator, announce the
results of the election for national positions in the district, and thereafter, proclaim
the elected member of the House of the Representatives in the legislative district.
"(d) The provincial board of canvassers shall canvass the certificate of canvass
for president, vice president, senators and members of the House of
Representatives and elective provincial officials as well as plebiscite results, if
any plebiscite is conducted simultaneously with the same election, as submitted
by the board of canvassers of municipalities and component cities: Provided,
That the returns for national position shall be canvassed first. Upon completion of
the canvass, it shall prepare the certificate of canvass for president, vice-
president, and senator, announce the results of the election for national position
in the province, proclaim the elected member of the House of Representatives
and provincial officials as well as the plebiscite results, if any.
"In conducting the canvass of election return of certificates of canvass, as the
case may be, the board of canvassers in a municipality, city, district or province
shall project each election return or certificate of canvass on a wall from which its
contents shall be read in order that those present in the canvassing canter may
follow the progress of the canvassing process from beginning to end. The
Commission may utilize the appropriate projection equipment for this purpose.
"Immediately after the certificate of canvass for national positions is
accomplished, the chairman of the Board of Canvassers shall announce the
posting of the second copy thereof and its supporting statement of votes on a
wall with sufficient lighting within the premises of the canvassing center. He shall
then proceed to do the same in the present in the canvassing center. Without
delay and when feasible, he shall capture images of the certificate of canvass
and supporting statements of votes using a secured data capturing device and
thereafter, while in the premises of the canvassing center, immediately print the
data so captured in thirty (30) copies. The board of canvassers shall then
authenticates each printed copy, in the presence of watchers and within public
view, by closely comparing the same with the certificate of canvass or statement
of votes, as the case may be, posted on of the wall. If the board finds each
printed copy a faithful reproduction of the certificate of canvass or statement of
votes, all members thereof shall annotate and sign a certification to that effect on
the bottom front of the printed copy.
"Each certified printed copy shall be placed in an envelope and distributed as
herein provided. Designated recipient of the certified printed copies may receive
their copies at the canvassing center.
"The Chairman of the board shall transmit the digital files of the certificate of
canvass and its supporting statement of votes using a secured transmission
device with authentication features to the secured tabulation system of the
Commission and to the systems of the other designated recipients as herein
provided.
"Any provision of law to the contrary notwithstanding, any of the recipients of the
print or digital copies of the certificate of canvass and the supporting statements
of votes may conduct an unofficial consolidation of votes and may announce the
result thereof to the public.
"Any violation of this section, or its pertinent portion, shall constitute an election
offence and shall be penalized in accordance with Batas Pambansa Blg. 881.
"In addition, the following shall likewise be guilty of an election offence:
"(a) Any person who remove the certificate of canvass posted on the wall,
whether within or after the prescribed forty-eight (48) hours of posting, or defaces
the same in any manner;
"(b) Any person who simulates an actual certificates of canvass or statement of
votes, or a print or digital copy thereof;
"(c) Any person who simulates the certification of a certificate of canvass or
statement of votes;
"(d) The chairman or any member of the board of canvassers who, during the
prescribed period of posting, remove the certificate of canvass or its supporting
statement of votes from the wall on which they have been posted other than for
the purpose of immediately transferring them to a more suitable place;
"(e) The chairman of any member of the board of canvassers who sign or
authenticates a print of the certificate of canvass or its supporting statement of
votes outside of the polling place: and
"(f) The chairman or any member of the board of canvassers who sign or
authenticates a print which bears an image different from the certificate of
canvass or statement of votes produced after counting and posted on the wall."
SEC. 40. Section 29 of Republic Act No. 7166 is hereby amended to read as follows:
"SEC.29. Number of Copies of Certificate of Canvass and their Distribution. - a)
the certificate of canvass for president, vice-president, senator and member of
the house of Representatives and elective provincial official shall be prepared in
seven copies by the city or municipal board of canvassers and distributed as
follows:
"(1) The first copy shall be delivered to the provincial board of canvassers for use
in the canvass election results for president, vice- president, senator and
member of the House of representatives and elective provincial officials:
"(2) The second copy shall be sent to the Commission;
"(3) The third copy shall be posted on a wall within the premises of the
canvassing center
"(4) The fourth copy shall be kept by the chairman of the Board: and
"(5) the fifth copy shall be given the citizens' arm designated by the Commission
to conduct a media-based unofficial count, and the sixth and seventh copies shall
be given to the citizen's arm designated by the Commission to conduct a media -
based unofficial count , and the sixth and seventh copies shall be given to the
representatives of two of the six major political parties in accordance with the
voluntary agreement of the parties. If no such agreement is reached, the
commission shall decide which parties shall receive the copies of the certificate
of the canvass on the basis of the criteria provided in Section 26 hereof. The
parties receiving the certificate shall have obligation to furnish the other parties
with authentic copies thereof with the at least possible delay.
"b) The certificates of canvass for president, vice president, senators shall be
prepared in seven (7) copies by the city boards of canvassers of cities
comprising one or more legislative districts, by provincial boards of canvassers in
the Metro Manila Area, and distributed as follows:
"(1) The first copy shall be sent to the Congress directed to the President of the
Senate for use in the canvass of election results for president and vice-president;
"(2) The second copy shall be sent to the Commission for use in the canvass of
the election results for Senators;
"(3) The third copy shall be posted on a wall within the premises of the
canvassing center;
"(4) The fourth copy shall be kept by the Chairman of the Board; and
"(5) The fifth copy shall be given to the citizens' s arm designated by the
Commission to conduct a media -based unofficial count, and the sixth and
seventh copies shall be given to the representatives of two of the six major
political parties. If no such agreement is reached, the commission shall decide
which parties shall receive the copies of the certificate of canvass on the basis of
the criteria provided in Section 26 hereof. The parties receiving the certificates
shall have the obligation to furnish the other parties with authentic copies thereof
with the least possible delay.
"The of the certificate of canvass posted on the wall shall be open for public
viewing at any time of the day for forty -eight (48) hours following its posting. Any
person may view or capture an image of the certificate of canvass .After the
prescribed period for posting, the chairman of the board of canvassers shall
collect the posted certificate of canvass and keep the same in his custody to be
produced for image or data capturing as may be requested by any voter or for
any lawful purpose as may be ordered competent authority.
"Except for those copies that are required to be delivered, copies of certificates of
canvass may be claimed at the canvassing center. Any unclaimed copy shall be
deemed placed in the custody of the chairman of the board of canvassers, who
shall produce them requested by the recipient or when ordered by a competent
authority.
"The thirty (30) certified print copies of the certificate canvass for national
positions shall be distributed as follows:
"(a) The first fourteen (14) copies shall be given to the fourteen (14) accredited
major national parties in accordance with a voluntary agreement among them. If
no such agreement is reached, the commission shall decide which parties shall
receive the copies on the basis of the criteria provided in Section 26 hereof;
"(b) The next three copies shall be given to the three accredited major local
parties in accordance with a voluntary agreement among them. If no such
agreement is reached, the Commission shall decide which parties shall receive
the copies in the basis of criteria analogous to the provided in Section 26 hereof;
"(c) The next five copies shall be given to national broadcast or print media
entities as may be equitably determined by the commission in view of
propagating the copies to the widest extent possible;
"(d) The next two copies shall be given to local broadcast or print media entitles
as may be equitably determined by the Commission in view propagating the
copies to the widest extent possible;
"(e) The next four copies to the major citizen's arms, including accredited citizen'
arm, and other non -partisan groups or organizations enlisted by the commission
pursuant to section 52(K) of Batas Pambansa Blg. 881; and
(f) The last two copies to be kept in file by the chairman of the board of
canvassers to be subsequently distributed as the national board of canvassers
may direct.
"The certified print copies may be claimed at the canvassing center. Any
unclaimed copy shall be deemed place in the custody of the chairman of the
board of canvassers, who shall produce them when requested by the recipient or
when ordered by a competent authority.
"The commission shall post its digital files in its website for the public to view or
download at any time of the day. The commission shall maintain the files for at
least three years from the date of posting.
"Any violation of this section, or its pertinent portion, shall constitute an election
offense and shall be penalized in accordance with Batas Pambansa Blg. 881."
SEC. 41 The first paragraph of Sec. 52 of Batas Pambansa Blg. 881 is hereby amended to
read as follows:
"Sec. 52. Powers and Functions of the Commission on Elections, - In addition to
the powers and functions conferred upon it buy the constitution the commission
shall have exclusive charge of the enforcement and administration of all laws
relative to conduct of elections for the purpose of ensuring free, orderly and
honest elections, except as otherwise provided herein and shall."
SEC. 42. Section27 (b) of Republic Act No. 6646 is hereby amended to read as follows :
"Sec. 27. Election Offenses; Electoral Sabotage. - In additional to the prohibited
acts and election offenses enumerated in Section 261 and 262 of Batas
Pambansa Blg. 881,as amended, the following shall be guilty of an election
offense or a special election offense to be known as eletoral sabotage:
"(a) x x x
"(b) Any person or member of the board of election inspectors or board of
canvassers who tampers, increases or decreases the votes received by a
candidates in any election or any member of the board who refuses after proper
verification and hearing ,to credit the correct votes or deduct such tampered
votes: Provided, however, That when the tampering, increase or decrease of
votes or the refusal to credit the correct votes and /or to deduct tampered to
deduct tampered votes are perpetrated on large scale or in substantial numbers,
the same shall be considered not as an ordinary election offense under Section
261 of the omnibus election code. But a special election offense to be known as
electoral sabotage and the penalty to be imposed shall be life imprisonment.
"The act or offense committed shall fall under the category of electoral sabotage
in any of the following instances;
"SEC. 265. Prosecution. - The Commission shall, through its duly authorized
legal officers, have the power, concurrent with the other prosecuting arms of the
government, to conduct preliminary investigation of all election offenses
punishable under this Code, and prosecute the same"
SEC. 44. Appropriations. - To carry out the provisions of this Act, the amount necessary
for the automated system shall be charged against the Two billion six hundred million
pesos (2,600,000,000.00) modernization fund in the current year's appropriations of the
commission. Further, the amount necessary to carry out the manual system, at a
maximum of Three billion pesos (3,000,000,000) shall be charged against the current
year's appropriation of the commission.
Thereafter, such sums as may be necessary for the continuous implementation of this Act
or any part thereof, or the application such be included in the annual General
Appropriations Act.
If the said funds shall not be fully utilized the same shall continue to be appropriated for the
electoral modernization as set forth in this Act and shall not revert to the General Fund.
SEC. 45. Separability Clause. - If, for any reason, any section or provision of this Act or
any part thereof , or the application of such section, provision or portion is declared invalid
or unconstitutional, the remainder thereof shall not be affected by such declaration.

"(1) When the tampering, increase and / or decrease of votes perpetrated or the
refusal to credit the correct votes or to deduct tampered votes, is/are committed
in the election of a national elective office which is voted upon nationwide and the
tampering, increase and/ or decrease votes refusal to credit the correct votes or
to deduct tampered votes, shall adversely affect the results of the election to the
said national office to the extent that losing candidate/s is /are made to appear
the winner/s;
SEC. 46. Repealing Clause. - All laws, presidential decrees, executive orders, rules and
regulations or part thereof inconsistent with the provisions of this Act are hereby repealed
or modified accordingly.
SEC. 47. Effectivity. - This Act Shall take effect fifteen (15) days after its publication in a
newspaper of general circulation.

"(2) Regardless of the elective office involved, when the tampering, increase
and/or decrease of votes committed or the refusal to credit the correct votes or to
deduct tampered votes perpetrated , is a accomplished in a single election
document or in the transposition of the figure / results from one election
document to another and involved in the said tampering increase and/or
decrease or refusal to credit correct votes or deduct tampered votes exceed five
thousand (5,000) votes, and that the same adversely affects the true results of
the election ;

"(3) Any and all other forms or tampering increase/s and/ or decrease/s of votes
perpetuated or in cases of refusal to credit the correct votes or deduct the
tampered votes, where the total votes involved exceed ten thousand (10,000)
votes;

"Provided finally; That any and all either persons or individuals determined to be
conspiracy or in connivance with the members of the BEIs or BOCs involved,
shall be meted the same penalty of life imprisonment."

SEC. 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended to read as follow: