Adaza v. Commission on Elections

EN BANC

[G.R. No. 192561. June 28, 2016.]

HOMOBONO A. ADAZA, HERNAN TIU LAUREL, ADOLFO PAGLINAWAN, MYRLEON 'LEON' PERALTA, DON EMILIO DE CASTRO, DON EMIL DE CASTRO, AND PATRICIA ILAGAN, petitioners, vs. COMMISSION ON ELECTIONS, REPRESENTED BY CHAIRPERSON JOSE A.R. MELO, AND CONGRESS OF THE PHILIPPINES, REPRESENTED BY SENATE PRESIDENT JUAN PONCE ENRILE AND SPEAKER PROSPERO NOGRALES, respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court en banc issued a Resolution dated JUNE 28, 2016, which reads as follows:

"G.R. No. 192561 — (Homobono A. Adaza, Hernan Tiu Laurel, Adolfo Paglinawan, Myrleon 'Leon' Peralta, Don Emilio De Castro,1Don Emil De Castro, and Patricia Ilagan, petitioners, v. Commission on Elections, represented by Chairperson Jose A.R. Melo, and Congress of the Philippines, represented by Senate President Juan Ponce Enrile and Speaker Prospero Nograles, respondents.) — This resolves a Petition 2 for certiorari and prohibition with a prayer for the issuance of a temporary restraining order or a writ of preliminary injunction, praying that the Elections held on May 10, 2010 be declared null and void, and that new elections be held for all positions occupied pursuant to the 2010 National and Local Elections. 3

The Commission on Elections contracted with Smartmatic-TIM Corporation (Smartmatic) to provide the automated election system. 4 The Commission on Elections did not enable the voter verification feature on the machines used in the Elections. 5

On March 4, 2010, the Commission on Elections issued Resolution No. 8786, which provides, among others:

SEC. 40. Counting of ballots and transmission of results; Procedure. (Renumbered) (As revised)

xxx xxx xxx

f) Thereafter, the PCOS shall automatically count the votes and immediately display a message "WOULD YOU LIKE TO DIGITALLY SIGN THE TRANSMISSION FILES WITH A BEI SIGNATURE KEY?", with a "YES" or "NO" option;

g) Press "NO" option. The PCOS will display "ARE YOU SURE YOU DO NOT WANT TO APPLY A DIGITAL SIGNATURE?" with a "YES" and "NO" option;

h) Press "YES" option. A message shall be displayed "PRINTING EIGHT COPIES OF NATIONAL RETURNS. PLEASE WAIT"[.] (Emphasis in the original)

On May 10, 2010, the Commission on Elections conducted the National and Local Elections using the automated election system provided by Smartmatic. 6

During the canvassing of votes garnered by the Presidential and Vice Presidential candidates before the Joint Committee of Congress, Homobono Adaza (Adaza) objected to the canvassing on the ground that the votes reflected in the certificates of canvass were "not based on official documents as required by Section 22 of R[epublic] A[ct] No. 9369, the election returns . . . not being digitally signed." 7 Senate President Juan Ponce Enrile overruled Adaza's objections and stated that the Joint Committee of Congress was not the proper forum. 8 After the canvassing of votes was concluded, Congress convened on June 9, 2010 to proclaim Benigno S. Aquino III and Jejomar Binay as President-elect and Vice President-elect. 9

Thus, on July 1, 2010, petitioners Homobono A. Adaza, Hernan Tiu Laurel, Adolfo Paglinawan, Myrleon Peralta, Don Emilio De Castro, Don Emil De Castro, and Patricia Ilagan filed the present Petition 10 assailing the conduct of the 2010 National and Local Elections, as well as the canvass and proclamation that followed. This Court required respondents Commission on Elections and Congress to file their comments within 10 days from notice. 11

The House of Representatives filed its Comment 12 on October 12, 2010. The Office of the Solicitor General filed a Comment on behalf of public respondents on October 14, 2010. 13

On December 17, 2010, Prospero C. Nograles filed a Motion for Leave of Court to Intervene in the Action, 14 which this Court denied in the Resolution dated October 22, 2013. 15 EcTCAD

In the Resolution 16 dated September 10, 2013, this Court resolved to (1) give due course to the Petition; (2) treat the Comments as Answers; and (3) require the original parties to submit their respective memoranda within 15 days from notice.

Petitioner Adaza filed a Memorandum 17 on behalf of himself and other petitioners, which was posted on December 23, 2013. Petitioner Paglinawan filed a separate Memorandum 18 on December 26, 2013. The Office of the Solicitor General filed a Consolidated Memorandum 19 on February 7, 2014, on behalf of public respondents.

On November 20, 2014, petitioner Adaza filed an Ex-Parte Urgent Motion to Resolve the Issues Raised in the Above-Entitled Case, 20 which was noted in the November 25, 2014 Resolution. 21

Petitioners seek a writ of certiorari from this Court and pray that the entirety of the 2010 National and Local Elections be nullified, and the consequent proclamations be voided. 22

Petitioners assail the Commission on Elections' preparations for the 2010 National and Local Elections as it allegedly violated multiple provisions of Republic Act No. 8436, 23 as amended by Republic Act No. 9369, 24 through the following acts:

First, the Commission on Elections violated Section 12 25 by contracting with Smartmatic, which does not have the necessary qualifications required under the law. 26

Second, the Commission on Elections violated Section 6 (e), 27 which requires the automated election system to have a provision for a voter-verified paper audit trail by disabling the voter verification feature of the machines. 28

Third, the Commission on Elections violated Sections 6 (j) and 6 (m), 29 which require the automated election system to have accurate ballot counters and utilize or generate official ballots, by disabling the ultraviolet lamps that were installed to determine whether the ballots used were genuine. 30

Lastly, the Commission on Elections violated Section 22, 31 which requires election returns to be digitally signed. 32 This is evidenced by the Commission on Elections Resolution No. 8786, which instructs operators to select "No" when prompted with the question: "Would you like to digitally sign the transmission files with a BEI signature key?" 33

Further, petitioners assert that the canvassed documents were "unofficial documents[.]" 34 Section 22 of Republic Act No. 8436 provides that the digitally signed election returns shall be used as the basis for the canvassing of votes and the proclamation of a candidate. Petitioners maintain that the election returns have no digital signatures; thus, they cannot be used as basis for the canvassing of votes and proclamation of candidates. 35

Petitioners maintain that Congress violated Article VII, Section 4 of the Constitution in its canvass of the votes. 36 They claim that a quorum of all of Congress must be present at all stages of canvass and proclamation for the positions of President and Vice President. However, petitioners allege that the canvass and proclamation of the 2010 National and Local Elections took place before the Joint Committee of Congress only and, thus, are void ab initio.

Additionally, the certificates of canvass used by the Joint Committee of Congress were not digitally signed, in view of the Commission on Elections' instructions in its Resolution No. 8786. Thus, petitioners argue that the authenticity and due execution of the certificates of canvass were not determined in the manner provided by law.

Respondents, through the Office of the Solicitor General, argue that petitioners have not shown any prima facie legal interest to qualify them as proper parties; thus, they have no locus standi. 37 Further, petitioners failed to convincingly demonstrate that respondents committed grave abuse of discretion. 38 SDHTEC

On the contract between the Commission on Elections and Smartmatic, respondents argue that this Court already affirmed the validity of this contract in Roque, Jr. v. Commission on Elections. 39 Respondents argue that Roque, Jr. declared that the Commission on Elections adopted a rigid technical evaluation mechanism to ensure compliance of the Precinct Count Optical Scan (PCOS) machines with the minimum standards prescribed by Republic Act No. 8436. 40 Further, the Commission on Elections' determination in this regard must be respected absent grave abuse of discretion. 41

Anent the non-use of the voter verification feature and the UV lamps, respondents stress that these were only "two of many security features of the PCOS." 42 The PCOS machine has a provision for system auditability so the voter can verify if the machine scanned, recorded, and counted his or her vote properly. 43 Thus, the "security of the PCOS was in no way compromised by the foregoing decisions of . . . [the Commission on Elections]." 44

As regards the election returns, respondents assert that they were digitally signed. Each PCOS machine utilized in the 2010 National and Local Elections yielded its own digital signature, and this served as the digital signature of the Election Inspector assigned to a particular PCOS machine. 45

In any case, respondents argue that the purported acts committed by the Commission on Elections are not valid grounds to assail or nullify the results of the election as these were merely defects in form, which did not affect the due execution and authenticity of the ballots. 46 The Commission on Elections' assailed actions were made in the performance of its administrative functions and are beyond the ambit of this Court to review on certiorari. 47

Respondents claim that the Rules of the Joint Public Session of Congress demonstrates that the joint public session of Congress has absolute control over the Joint Committee of Congress and the conduct of the canvass. 48 Moreover, this Court already resolved the constitutionality of the creation and proceedings of the Joint Committee of Congress in Lopez v. Senate of the Philippines. 49 Requiring quorum of both Houses to be present and to participate in all stages of the proceedings is not workable. It would cause an unreasonably protracted canvass that would make the public apprehensive and suspicious of the integrity of the canvass proceedings. 50

On the claim that the certificates of canvass canvassed by Congress were not "official documents," respondents assert that the Commission on Elections complied with the pertinent laws. Section 30 51 of Republic Act No. 7166 outlines the process to be followed in determining the authenticity and due execution of the certificates of canvass for President and Vice President. The Rules adopted by Congress in canvassing complied with the requirements laid down by law.

The procedural issues for resolution are:

First, whether the case is moot and academic;

Second, whether petitioners have legal standing to file the present Petition;

Third, whether the assailed acts of the Commission on Elections may be subject of a petition for certiorari; and

Lastly, whether the assailed acts of Congress may be subject of a petition for certiorari.

On the other hand, the substantive issues are:

First, whether exceptional circumstances constituting grounds for declaring a failure of election and calling for a special election have been shown;

Second, whether the Commission on Elections violated the law and committed grave abuse of discretion by entering into a contract with Smartmatic and not enabling the voter-verified printed audit trail;

Third, whether the Commission on Elections committed grave abuse of discretion when it issued Resolution No. 8786; and

Lastly, whether Congress committed grave abuse of discretion when it canvassed the Presidential and Vice Presidential votes and proclaimed the winners.

We deny the Petition.

A case is moot and academic if it "ceases to present a justiciable controversy because of supervening events so that a declaration thereon would be of no practical use or value." 52 In Timbol v. Commission on Elections: 53

A case is moot and academic if it "ceases to present a justiciable controversy because of supervening events so that a declaration thereon would be of no practical use or value." When a case is moot and academic, this court generally declines jurisdiction over it.

There are recognized exceptions to this rule. This court has taken cognizance of moot and academic cases when:

(1) there was a grave violation of the Constitution; (2) the case involved a situation of exceptional character and was of paramount public interest; (3) the issues raised required the formulation of controlling principles to guide the Bench, the Bar and the public; and (4) the case was capable of repetition yet evading review.

We may no longer act on petitioner's prayer that his name be included in the certified list of candidates and be printed on the ballots as a candidate for Member of the Sangguniang Panlungsod. Petitioner filed with this court his Petition for Certiorari on March 15, 2013, 39 days after respondent began printing the ballots on February 4, 2013. Also, the May 13, 2013 elections had been concluded, with the winners already proclaimed. 54 (Citations omitted)

In Regio v. Commission on Elections, 55 the expiry of the term of office of an official whose election was subject of an election protest rendered the protest case moot and academic:

At the outset, it must be noted that the protest case is dismissible for being moot and academic. A case becomes moot when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits. Generally, courts will not determine a moot question in a case in which no practical relief can be granted. In Malaluan v. COMELEC, this Court settled the matter on when an election protest case becomes moot and academic:

When the appeal from a decision in an election case has already become moot, the case being an election protest involving the office of mayor the term of which had expired, the appeal is dismissible on that ground, unless the rendering of a decision on the merits would be of practical value. 56 (Citations omitted) AScHCD

Similarly, in Dimangadap v. Commission on Elections, 57 this Court held that upon the expiration of the term of a contested office, to review the records would be an exercise in futility since whatever judgment that may be reached would have no practical legal effect:

The issue of who were the rightful members of the Sangguniang Bayan of Tugaya, Lanao del Sur during the 10 May 2004 National and Local Elections has been rendered moot and academic by the expiration of the term of the contested office, and the election and proclamation of a new set of municipal officials after the 14 May 2007 National and Local Elections. Indeed, we have repeatedly held that it is an exercise in futility for the Court to still indulge itself in a review of the records and in an academic discussion of the applicable legal principles to determine who really won the elections, because whatever judgment is reached, the same can no longer have any practical legal effect or, in the nature of things, can no longer be enforced.

This being said, the Court notes that under Section 243 of the Omnibus Election Code, the tampering of, as well as discrepancies in election returns are proper grounds for a pre-proclamation controversy. As found by the Comelec En Banc, indeed, discrepancies were present in the election returns of Precinct Nos. 8-A and 36-A, wherein the number of votes, as reflected in the taras, did not correspond with the number of votes written in words. These being apparent on the face of the election returns, the Banc was correct in ordering the correction of the discrepancies without the necessity of opening the ballot box. The correction can be carried out by recounting the number of taras in the election return and revising the written words and figures to conform to the number of taras. 58 (Emphasis in the original, citations omitted)

Here, petitioners pray mainly that new elections be called:

1. Declaring the May 10, 2010 elections null and void, thus call for new elections for all elective offices which were due to be legally elected on the May 10, 2010 elections pursuant to provisions of the Constitution;

2. Declaring all elective positions which would be occupied by persons illegally proclaimed vacant;

3. As an alternative remedy, to order respondent COMELEC to conduct a manual count of all ballots in all precinct [sic] throughout the country in the presence of the public and representatives of candidates and political parties;

4. As still another alternative, order the COMELEC to conduct a manual count of all the ballots where there are existing protests;

5. Thereafter, order the respondents COMELEC and CONGRESS to proclaim the winning candidates under their respective jurisdiction. 59

The reliefs sought by petitioners pertain solely to the issue of which candidates won in the 2010 National and Local Elections. Given the expiry of the terms of all the officials elected in 2010, as in Regio v. Commission on Elections, 60 the issue of who were the rightfully elected public officials in the 2010 Elections has been rendered moot and academic.

WHEREFORE, the Petition for Certiorari and Prohibition dated July 1, 2010 is DISMISSED for being moot and academic." Del Castillo, J., on official leave. Jardeleza, J., no part. (57)

Very truly yours,

(SGD.) FELIPA B. ANAMAClerk of Court

Footnotes

1. Don Emilio De Castro was named as a petitioner, but was not among those who verified the Petition. A Roland Tan signed the Verification, but was not named as a petitioner.

2. Rollo, pp. 4-22. The Petition was filed under Rule 65 of the Rules of Court.

3. Id. at 18.

4. Id. at 616, Petitioners' Memorandum.

5. Id. at 617.

6. Id. at 586, Petitioner Paglinawan's Memorandum.

7. Id. at 432-433, Comment.

8. Id. at 433.

9. Id.

10. Id. at 4-22.

11. Id. at 361, Resolution dated July 20, 2010.

12. Id. at 397-422.

13. Id. at 431-445.

14. Id. at 447-470.

15. Id. at 546-549.

16. Id. at 545-A-545-B.

17. Id. at 615-634.

18. Id. at 583-601.

19. Id. at 652-689.

20. Id. at 766-776.

21. Id. at 777-778.

22. Id. at 17-18.

23. An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National and Local Electoral Exercises, Providing Funds Therefor and for Other Purposes (1997).

24. An Act Amending Republic Act No. 8436, Entitled "An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National and Local Electoral Exercises, to Encourage Transparency, Credibility, Fairness and Accuracy of Elections, Amending for the Purpose Batas Pambansa Blg. 881, as Amended, Republic Act No. 7166 and Other Related Election Laws, Providing Funds Therefor and for Other Purposes" (2007).

25. Rep. Act No. 8436 (1997), sec. 12 provides:

Section 12. Procurement of Equipment and Materials. — To achieve the purpose of this Act, the Commission is authorized to procure, in accordance with existing laws, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities and other services, from local or foreign sources free from taxes and import duties, subject to accounting and auditing rules and regulations. With respect to the May 10, 2010 elections and succeeding electoral exercises, the system procured must have demonstrated capability and been successfully used in a prior electoral exercise here or abroad. 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.

26. Rollo, p. 616.

27. Rep. Act No. 8436 (1997), sec. 6 (e) provides:

Section 6. Minimum System Capabilities. — The automated election system must at least have the following functional capabilities:

 

xxx xxx xxx

(e) Provision for voter verified paper audit trail[.]

xxx xxx xxx

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.

28. Rollo, p. 617.

29. Rep. Act No. 8436 (1997), sec. 6 (j) and (m) provide:

Section 6. Minimum System Capabilities. — The automated election system must at least have the following functional capabilities:

xxx xxx xxx

(j) Accurate ballot counters;

xxx xxx xxx

(m) Utilize or generate official ballots as herein defined[.]

30. Rollo, p. 617.

31. Rep. Act No. 8436 (1997), sec. 22 provides:

Section 22. Electronic Returns. —

xxx xxx xxx

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.

32. Rollo, p. 618.

33. COMELEC Res. No. 8786, sec. 40 provides:

Section 40. Counting of ballots and transmission of results; Procedure. —

xxx xxx xxx

f) Thereafter, the PCOS shall automatically count the votes and immediately display a message "WOULD YOU LIKE TO DIGITALLY SIGN THE TRANSMISSION FILES WITH A BEI SIGNATURE KEY?" with a "YES" or "NO" option;

g) Press "NO" option. The PCOS will display "ARE YOU SURE YOU DO NOT WANT TO APPLY A DIGITAL SIGNATURE?" with a "YES" and "NO" option;

h) Press "YES" option. A message shall be displayed "PRINTING EIGHT COPIES OF NATIONAL RETURNS. PLEASE WAIT."

34. Rollo, p. 626.

35. Id.

36. CONST., art. VII, sec. 4 provides:

Section 4 . . . .

Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty 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 due execution thereof in the manner provided by law, canvass the votes.

37. Rollo, p. 659, Respondents' Memorandum.

38. Id. at 659-660.

39. 615 Phil. 149 (2009) [Per J. Velasco, Jr., En Banc].

40. Rollo, p. 660.

41. Id.

42. Id. at 661.

43. Id.

44. Id.

45. Id. at 662.

46. Id. at 662-663.

47. Id. at 664.

48. Id. at 667.

49. G.R. No. 163556, June 8, 2004 [Unsigned Resolution, En Banc].

50. Rollo, pp. 670-671.

51. Rep. Act No. 7166 (1991), sec. 30 provides:

Section 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 canvass 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 members 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 in figures;

(3) there exists no discrepancy in other authentic copies of the certificates of canvass or any of its supporting documents 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 exists no discrepancy in the votes of any candidate in words and figures in the certificate of canvass against 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 canvassers of each province, city or 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 alterations which may cast doubt as to the veracity of the number of votes stated herein and may affect the result of the election, upon request 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 number of votes cast for President and Vice-President or senator, count the votes as they appear in the copies of 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 Sections 17, 18, 19 and 20.

Any person who presents 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 and shall be penalized in accordance with Batas Pambansa Blg. 881.

52. COCOFED-Philippine Coconut Producers Federation, Inc. v. Commission on Elections, 716 Phil. 19, 28 (2013) [Per J. Brion, En Banc].

53. G.R. No. 206004, February 24, 2015, 751 SCRA 456 [Per J. Leonen, En Banc].

54. Id. at 462-463.

55. G.R. No. 204828, December 3, 2013, 711 SCRA 448 [Per J. Velasco, En Banc].

56. Id. at 459-460.

57. G.R. No. 174791, March 19, 2013 [Unsigned Resolution, En Banc].

58. Id.

59. Rollo, p. 197.

60. Regio v. Commission on Elections, G.R. No. 204828, December 3, 2013, 711 SCRA 448, 459-460 [Per J. Velasco, En Banc].