BRILLANTES v. COMELEC & Dissemination of Election Results Project Contract.
By its very terms, it
June 15, 2004 | Callejo, Sr., J. | Canvassing and Proclamation
Digester: Bathan, Maria Aurelia
SUMMARY: Two weeks before the 2004 elections, the Comelec approved Resolution
6712 declaring that it adopts the policy that the precinct election results of each city
and municipality shall be immediately transmitted electronically in advance to the
Comelec, Manila. Sec. 13 of said Resolution provides that the encoding proceedings
were ministerial and the tabulations were advanced unofficial results. SC ruled against
the constitutionality of the said Resolution. (Check first sentence of each number)
DOCTRINE: Under Sec. 27, RA 7166, as amended by RA 8173, and reiterated in Sec.
18, RA 8436, the accredited citizens arm (NAMFREL) is exclusively authorized to use a
copy of the election returns in the conduct of an unofficial counting of the votes,
whether for the national or the local elections. No other entity, including the Comelec
itself, is authorized to use a copy of the election returns for purposes of conducting an
unofficial count.s
FACTS:
Dec. 22, 1997 Congress enacted RA 8346 authorizing the Comelec to use an
automated election system (AES) for the process of voting, counting of votes and
canvassing/consolidating the results of the national an local elections. It also
mandated the Comelec to acquire automated counting machines (ACMs),
computer equipment, devices and materials; and to adopt new electoral forms and
printing materials. The initial plan was to implement the automation during the
May 1998 presidential elections in the ARMM. The failure of the machines to read
correctly some ballots deferred its implementation.
May 2001 still manual as no additional ACMs had been acquired because of time
constraints.
Oct. 29, 2002 Comelec adopted a modernization program for the 2004 elections
which had 3 phases: 1) Phase I Computerized system of registration and voters
validation aka biometrics system of registration; 2) Phase II Computerized
voting and counting of votes; 3) Phase III Electronic transmission of results
PGMA issued EO 172 on Jan. 24, 2003 which allocated P2.5B to exclusively fund
the AES in time for the May 2004 elections.
Jan 28 Comelec issued an Invitation to Bid for the procurement of supplies,
equipment, materials and services needed for the complete implementation of all 3
phases with an approved budget of P2.5B.
Feb. 10, 2003 Upon Comelecs request, PGMA issued EO 175, authorizing the
release of a supplemental P500M budget for the AES project. It also directed the
DBM to ensure that the additional amount be used exclusively for the AES
prescribed under RA 8436.
Apr. 15, 2003 Comelec promulgates Resolution No. 6074, awarding the contract
for Phase II to Mega Pacific Consortium and entered into a contract to implement
the project. Comelec also entered into a separate contract with Philippine Multi-
Media System, Inc. (PMSI) denominated Electronic Transmission, Consolidation
pertains to Phase III of the project. It was predicated on a previous bid award of
the contract, for the lease of 1,900 units of satellite-based Very Small Aperture
Terminals to PMSI for possessing the legal, financial and technical expertise
necessary to meet the projects objectives. The Comelec obliged itself to pay PMSI
P298.38M as rentals.
In the meantime, the Information Technology Foundation of the Philippines
(ITFP) filed a petition for certiorari and prohibition before the SC for the
nullification of Resolution No. 6074. Pending the case, the Comelec paid the
contract fee to the PMSI in trenches.
Jan. 13, 2004 SC nullified the Resolution as well as the contract with Mega
Pacific Consortium for the purchase of computerized voting/counting machines
for Phase II. Thus, Phase II was scrapped and the Comelec had to maintain the
old manual voting and counting system for the May 2004 elections.
On the other hand, the validation scheme under Phase I encountered problems.
Despite the scrapping of Phase II, the Comelec nevertheless ventured to
implement Phase III through an electronic transmission of advanced unofficial
results of the 2004 elections dubbed as an unofficial quick count.
Senate Pres. Drilon had misgivings and misapprehensions about the
constitutionality of the proposed electronic transmission of results for the
positions of Pres and VP and apprised Comelec Chairman Abalos of his position
during their meeting. In a letter, he asked the Comelec to reconsider its plan to
include the votes for Pres. And VP in the quick count.
Aside from this concern from Drilon, Comelec had to contend with the primal
problem of sourcing the money for the implementation of the project since the
money allocated by the OP had already been spent for the acquisition of the
equipment. All these notwithstanding, the Comelec was determined to carry out
Phase III.
Apr. 6, 2004 Comelec conducted a field test of the electronic transmission
results. Comelec met en banc days later to decide whether to proceed with the
implementation of Phase III or not. During this meeting, Commissioner Tuason
requested that whatever would be discussed should be confined within the four
walls of the room so that walang masyadong problema. He said that he had no
objection to the Phase III of the project itself, but had concerns about the budget.
Commissioners Borra, Barcelona, and Garcillano also expressed their concerns on
the budget. Commissioner Sadain noted that the consideration for the contract for
Phase III had already been almost fully paid even before the SCs nullification of
the contract for Phase II, but he was open to the possibility of the realignment of
funds of the Comelec for the funding of the project. He added that if the
implementation of Phase III would not be allowed to continue just because Phase
II was nullified then it would be P300,000 down the drain, in addition to the
already allocated disbursement on Phase II. Other concerns were on the legality
of the project considering the scrapping of Phase II.
Despite these reservations, 2 weeks before the elections, the Comelec approved
the Resolution declaring that it adopts the policy that the precinct election results
 of each city and municipality shall be immediately transmitted electronically in
advance to the Comelec, Manila. For this purpose, the National Consolidation
(NCC) and Electronic Transmission Centers were established for every city and
municipality, and a special ETC at the Comelec Manila for the Oversees Absentee
Voting. Outline of procedure:
o NCC shall receive and consolidate all precinct results based on data
transmitted by ETC ETC will be where votes will be transmitted
electronically to NCC through VSAT facilities (PCs were allocated one set for
every 175 precincts) DepEd Supervisor assigned to each polling center will
gather from all BEI the envelopes containing the Copy of the Election
Returns, which shall be used as basis for the encoding and transmission of
advanced precinct results
The Resolution further provides that written notices of the date, time, and place of
the electronic transmission of advanced precinct results shall be given not later
than May 5, 2004 (local) and May 7 (national), as well as to those participating
under the party-list system. In relation to this, Sec. 13 of said Resolution provides
that the encoding proceedings were ministerial and the tabulations were advanced unofficial
results. It also provides that every candidate (national) has the right to observe/witness
the encoding and electronic transmission.
In keeping with the unofficial character of the electronically transmitted precinct
results, no print outs shall be released at the ETC and NCC. Instead, the results
shall be made available via the Internet, text messaging, and electronic billboards.
Interested parties may print the result published in the Comelec website.
The NAMFREL and the heads of the major political parties wrote the Comelec,
detailing their concerns about the Reoslution. They said that to them, it appears
that the use of election returns as prescribed in the Resolution departs from the
letters and spirit of the law, as well as previous practice. The conduct of an
advanced count by the Comelec may affect the credibility of the elections because
it will differ from the results obtained from canvassing.
May 4 This petition was filed, urging the SC to declare as null and void the
Resolution and permanently enjoin the Comelec from implementing the same.
o There is no provision in RA 8436 which authorizes the Comelec to engage in
the biometrics/computerized system of validation of voters (Phase I) and a
system of electronic transmission of election results (Phase III). Even
assuming that all 3 phases are duly authorized, they must complement each
other as they are not distinct and separate programs but mere stages of one
whole scheme. There is no basis for Phase III to push through when Phases I
and II have failed.
o The counting and consolidation of votes contemplated under Sec. 6, RA 8436
refers to the official Comelec count under the fully automated system and not any
kind of unofficial count via electronic transmission of advanced results as provided in
the Resolution.
o The Resolution effectively preempts the sole and exclusive authority of
Congress under Art. VII, Sec. 4 of the Constitution to canvass the votes for
Pres and VP.
o Any expenditure contravenes Art. VI, Sec. 29(1) since there has been no
appropriation by Congress for the Comelec to conduct an unofficial
electronic transmission of results.
o The Resolution encroaches upon the authority of NAMFREL to conduct the
unofficial quick count as provided under pertinent election laws.
o It violates Sec. 52(i) of the OEC, relating to the requirement of notice to the
political parties and candidates of the adoption of technological and electronic
devices during the elections.
Comelec: SC has no jurisdiction to pas upon the resolutions validity since it was
promulgated in the exercise of its executive or administrative power. It involves a
political question, hence, beyond the ambit of judicial review.
o Petitioner has no standing to file the present petition as he has not alleged any
injury which he would or may suffer as a result
o It denied that the Resolution was promulgated pursuant to RA 8346 and that it
is the implementation of Phase III of the modernization program. Rather, it
invokes the general grant to it of the power to enforce and administer all laws
relative to the conduct of elections and to promulgate rules and regulations to
ensure free, orderly, and honest elections by the Constitution, the OEC, and
RA 6646 and 7166.
o Granting arguendo that it is relation to Phase III, no specific law is violated by
its implementation. The 3 phases are mutually exclusive schemes.
o There is statutory basis for it to conduct an unofficial quick count. (Invoked
general grant of power)
o It complied with Sec. 52(i) of the OEC, as all the candidates were sufficiently
notified.
o The constitutional concerns raised by intervenors and the Drilon are purely
speculative as what it contemplated in the resolution is not a canvass of the
votes but merely consolidation and transmittal thereof.
RULING: Granted.
Whether the petitioners and petitioners-in-intervention possess the standing to
maintain the present action - YES
Since the implementation of the assailed resolution obviously involves the
expenditure of funds, the petitioner and the petitioners-in-intervention, as
taxpayers, possess the requisite standing to question its validity as they have
sufficient interest in preventing the illegal expenditure of money raised by taxation.
Most of the petitioners-in-intervention are also representatives of major political
parties that have participated in the May 2004 elections.
NAMFREL has sufficient, direct, and personal interest in the manner by which
Comelec would conduct the elections since it is the citizens arm authorized to
conduct an unofficial quick count during the elections.
Drilon and Devenecia (Senate Pres. And Speaker of the House) represent the
Congress which is exclusively authorized by the Constitution to canvass the votes
for Pres. and VP.
Whether the issue raised by the petition is justiciable YES.
The issue raised in the present petition does not merely concern the wisdom of the
assailed resolution but focuses on its alleged disregard for applicable statutory and
constitutional provisions.
Administrative issuances must not override, supplant or modify the law, but must
remain consistent with the law they intend to carry out. When the grant of power
is qualified, conditional or subject to limitations, the issue of whether the
prescribed qualifications or conditions have been met or the limitations respected,
is justiciable the problem being one of legality or validity, not its wisdom. In the
present petition, the Court must pass upon the petitioners contention that
Resolution 6712 does not have adequate statutory or constitutional basis.
Not moot and academic since it is necessary to resolve the merits of the
substantive issues for future guidance of both the bench and bar.
Whether the Comelec committed GAD in issuing Resolution No. 6712 YES.
FIRST. The assailed resolution usurps, under the guise of an unofficial
tabulation of election results based on a copy of the election returns, the sole and
exclusive authority of Congress to canvass the votes for the election of Pres. and
VP (Art. VII, Sec. 4 of the Constitution).
In disregard of the valid objection of Senate President Drilon, the Comelec
proceeded to promulgate the assailed Resolution. Such Resolution directly
infringes the authority of Congress, considering the Sec. 4 thereof allows the use
of the third copy of the Election Returns for the Positions of Pres., VP, Senators,
and Members of the HoR, intended for the Comelec, as basis for the encoding and
transmission of advanced precinct results, and in the process, canvass the votes for
the Pres. and VP, ahead of the canvassing of the same votes by Congress.
Even Sec. 24 of RA 8436 confirms the constitutional undertaking of Congress as
the sole body tasked to canvass the votes for Pres and VP.
If the Comelec is proscribed from conducting an official canvass of the votes cast
for the President and Vice-President, the Comelec is, with more reason, prohibited
from making an unofficial canvass of said votes.
The COMELEC realized its folly and the merits of the objection of the Senate
President on the constitutionality of the resolution that it decided not to conduct
an unofficial quick count of the results of the elections for Pres and VP.
Commissioner Sadain so declared during the hearing. Sadain was quoted saying,
There is going to be no consolidation and no publication of the xxx reason
behind being that it is actually Congress that canvass the official canvass for this
and proclaims the winner.
SECOND. The Resolution contravenes the constitutional provision that no
money shall be paid out of the treasury except in pursuance of an appropriation
made by law.
By its very terms, the electronic transmission and tabulation of the election results
projected under Resolution 6712 is unofficial in character, meaning not
emanating from or sanctioned or acknowledged by the government or government
body. Any disbursement of public funds to implement this project is contrary to
the provisions of the Constitution and RA 9206 (2003 GAA). It may even be
considered a felony under Art. 217, RPC.
According to the COMELEC, it needed P55,000,000 to operationalize the project,
including the encoding process. Hence, it would necessarily involve the
disbursement of public funds for which there must be the corresponding
appropriation.
The Comelec posited that the GAA has appropriated the amount needed for its
unofficial tabulation. However, Sadain admitted during the same hearing that
although it had already approved the assailed Resolution, it was still looking for the
P55M needed to operationalize the project. He contradicted himself when he said
that its Financial Department had already found the money, but that proper
documentation was forthcoming.
In the Apr. 2004 meeting of the Comelec en banc, the Commissioners expressed
their serious concern about the lack of funds for the project.
A review of RA 9206 would show no appropriation for the project of the Comelec
for electronic transmission of unofficial election results. What is appropriated
therein is the amount of P225M of the capital outlay for the modernization of the
electoral system.
Sec. 52 of the GAA proscribes any change or modification in the expenditure
items authorized thereunder. Neither can the money needed for the project be
taken from the Comelecs savings, if any, because it be violative of Art. VI, Sec.
25(5) of the 1987 Constitution. The power to augment from savings lies dormant
until authorized by law. No less than the Secretary of the Senate certified that there is
no law appropriating any amount for an unofficial count and tabulation of the
votes cast.
What is worrisome is that despite the concerns of the Commissioners during its
En Banc meeting on April 27, 2004, the Comelec nevertheless approved the
assailed resolution the very next day. The Comelec had not executed any
supplemental contract for the implementation of the project with PMSI. Worse,
even in the absence of a certification of availability of funds for the project, it
approved the assailed resolution.
THIRD. The assailed resolution disregards existing laws which authorize solely
the duly-accredited citizens arm to conduct the unofficial counting of votes.
Under Sec. 27, RA 7166, as amended by RA 8173, and reiterated in Sec. 18, RA
8436, the accredited citizens arm (NAMFREL) is exclusively authorized to use a
copy of the election returns in the conduct of an unofficial counting of the
votes, whether for the national or the local elections.
No other entity, including the Comelec itself, is authorized to use a copy of the
election returns for purposes of conducting an unofficial count. In addition, the
second or third copy of the election returns, while required to be delivered to the
Comelec under the aforementioned laws, are not intended for undertaking an
unofficial count. The aforesaid Comelec copies are archived and unsealed only
 when needed by the respondent Comelec to verify election results in connection
with resolving election disputes that may be imminent.
However, in contravention of the law, the assailed Resolution authorizes the so-
called Reception Officers (RO), to open the second or third copy intended for the
Comlec as basis for the encoding and transmission of advanced unofficial
precinct results. This not only violates the exclusive prerogative of NAMFREL to
conduct an unofficial count, but also taints the integrity of the envelopes
containing the election returns, as well as the returns themselves, by creating a gap
in its chain of custody from the Board of Election Inspectors to the Comelec.
FOURTH. Sec. 52(i) of the OEC, which is cited by the Comelec as the statutory
basis for the assailed resolution, does not cover the use of the latest technological
and election devices for unofficial tabulations of votes. Moreover, the Comelec
failed to notify the authorized representatives of accredited political parties and all
candidates in areas affected by the use or adoption of technological and electronic
devices not less than thirty days prior to the effectivity of the use of such devices.
From the clear terms of the provision, before the Comelec may resort to and
adopt the latest technological and electronic devices for electoral purposes, it must
act in accordance with the following conditions:
(a) Take into account the situation prevailing in the area and the funds
available for the purpose; and,
(b) Notify the authorized representatives of accredited political parties and
candidates in areas affected by the use or adoption of technological and
electronic devices not less than thirty days prior to the effectivity of the use of
such devices.
The purpose of this provision is to accord to all political parties and all candidates
the opportunity to object to the effectiveness of the proposed technology and
devices, and, if they are so minded not to object, to allow them ample time to field
their own trusted personnel especially in far flung areas and to take other necessary
measures to ensure the reliability of the proposed electoral technology or device.
The Resolution was made effective immediately a day after its issuance, thus
Comelec could not have possibly complied with the 30-day notice requirement.
This indubitably violates the constitutional right to due process of the political
parties and candidates. They should have been notified at the latest on Apr. 7, 8,
and 9 being Holy Thursday and Good Friday.
During the hearing, Sadain admitted that Comelec failed to notify all the
candidates as mandated by law. IT has also failed to submit any resolution to
prove that it had notified all political parties of the intended adoption of
Resolution 6712.
The invitations dated Jan. 15, 2004 regarding the Comelec Conference with the
political parties on election security measures did not mention electronic
transmission of advanced results, much less the formal adoption of the purpose of
the conference. Further, the invitations purportedly sent out to the political parties
regarding the April 6, 2004 Field Test of the Electronic Transmission, Consolidation
and Dissemination System to be conducted by the COMELEC appear to have
been sent out in the late afternoon of April 5, 2004, after office hours. There is no
showing that all the political parties attended the Field Test, or received the
invitations. More importantly, said invitations did not contain a formal notice of
the adoption of a technology, as required by Sec. 52(i) of the OEC.
FIFTH. The assailed resolution has no constitutional and statutory basis.
That respondent COMELEC is the sole body tasked to enforce and administer
all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum and recall and to ensure free, orderly, honest, peaceful and credible
elections is beyond cavil.
However, the duties of the Comelec under the Constitution, RA 7166, and other
election laws are carried out, at all times, in its official capacity. There is no
constitutional and statutory basis for the respondent COMELEC to undertake a
separate and an unofficial tabulation of results, whether manually or
electronically. Indeed, by conducting such unofficial tabulation of the results of
the election, the Comelec descends to the level of a private organization, spending
public funds for the purpose. It Is absurd for the Comelec to conduct two kinds of
electoral counts a low but official count, and an alleged quicker but
unofficial count, the results of each may substantially differ.
Clearly, the assailed Resolution is an implementation of Phase III of the
modernization program of the Comelec under RA 8436. Sec. 2 of it expressly
refers to the Phase III-Modernization Project.
Since the SC scrapped the contract for Phase II, the Comelec cannot as yet
implement the Phase II of the program, as provided in Sec. 6, RA 8436: If in spite of
its diligent efforts to implement this mandate in the exercise of this authority, it becomes evident by
February 9, 1998 that the Commission cannot fully implement the automated election system for national
positions in the May 11, 1998 elections, the elections for both national and local positions shall be done manually
except in the Autonomous Region in Muslim Mindanao (ARMM) where the automated election system
shall be used for all positions.
The AES provided in RA. 8436 constitutes the entire process of voting, counting
of votes and canvassing/consolidation of results of the national and local
elections corresponding to Phases I to III of the AES of the Comelec.
SIXTH. There is a great possibility that the unofficial results reflected in the
electronic transmission under the supervision and control of the Comelec would
significantly vary from the results reflected in the Comelec official count since it
follows a procedure markedly difference from the procedure envisioned in the
Reoslution.
As the results are transposed from one document to another, and as each
document undergoes the procedure of canvassing by various Boards of
Canvassers, election returns and certificates of canvass are objected to and at times
excluded and/or deferred and not tallied, long after the pre-proclamation controversies
are resolved by the canvass boards and the Comelec.
On the other hand, under the assailed resolution, the precinct results of each city
and municipality received by the ETCs would be immediately electronically transmitted to
 the NCC. Such data, which have not undergone the process of canvassing, would expectedly
be dissimilar to the data on which the official count would be based.
In the past elections, the unofficial quick count conducted by the NAMFREL
had never tallied with that of the official count of the Comelec, giving rise to
allegations of trending and confusion.
The only intimated utility claimed by the Comelec for the unofficial electronic
transmission count is to avert the so-called dagdag-bawas. The purpose, however,
as the petitioner properly characterizes it, is a total sham. The Court cannot accept
as tenable the Comelecs profession that from the results of the unofficial count,
it would be able to validate the credibility of the official tabulation. To sanction
this process would in effect allow the Comelec to preempt or prejudge an election
question or dispute which has not been formally brought before it for quasi-
judicial cognizance and resolutions.
SC doubts that this problem could be addressed by the implementation of the
assailed resolution. It is observed that such problem arises because of the element
of human intervention.
As it stands, the Comelec unofficial quick count would be but a needless
duplication of the NAMFREL quick count, an illegal and unnecessary waste of
government funds and effort.