EN BANC
[G.R. No. 224542. June 22, 2021.]
ATTY. EDUARDO V. BRINGAS, BISHOP REUBEN M. ABANTE, and MOSES C. RIVERA, petitioners,vs. THE HONORABLE COMMISSION ON ELECTIONS and/or GMA-7 NETWORK, INC., respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court en banc issued a Resolution datedJUNE 22, 2021, which reads as follows:
"G.R. No. 224542 (Atty. Eduardo V. Bringas, Bishop Reuben M. Abante, and Moses C. Rivera v. The Honorable Commission on Elections and/or GMA-7 Network, Inc.). — In 1997, Republic Act (RA) No. 8436 1 authorized the Commission on Elections (COMELEC) to adopt an automated election system (AES) using appropriate technology for voting and electronic devices to count votes and canvass or consolidate results. In 2007, RA No. 9369 2 amended the provisions of RA No. 8436 allowing the electronic transmission of precinct results to the respective levels of board of canvassers, the dominant majority and minority party, to the accredited citizen's arm, and to the Kapisanan ng mga Broadcaster ng Pilipinas (KBP). 3 In the 2016 Elections, the COMELEC set up a transparency server that will receive the electronically transmitted precinct results. The COMELEC likewise authorized media organizations, which included the Global Media Arts-7 Network, Inc. (GMA-7), to access a mirror server that will provide an exact copy of the data from the transparency server. 4 The COMELEC then required the media organizations to sign confidentiality agreements, and directed them to include a disclaimer when reporting in that only the canvassed election results from the consolidation and canvassing system (CCS) of the board of canvassers are considered official and valid bases for proclamation. 5
On May 9, 2016, after the closing of polls, the transparency server received the electronic transmission of election results from different precincts nationwide. Thereafter, the GMA-7 reported the results at regular intervals. 6 Yet, several media organizations reported that someone from the COMELEC's service provider, Smartmatic, Inc., introduced a server script or a computer command to the transparency server. The hash code of the 'data package' containing the transparency server's election results was allegedly altered. The incident then caught the public's attention. However, COMELEC Chairman Andres Bautista allayed suspicion of cheating and assured the public that the hash code change was merely cosmetic to change the character of '?' to 'ñ' appearing on the names of some candidates with 'ñ.' Moreover, the COMELEC records are open to public scrutiny. 7 On the other hand, COMELEC Commissioner Ma. Rowena Amelia Guanzon intended to request a formal investigation regarding the hash code change, 8 while Commissioner Christian Robert Lim said that he would have opposed the tweak in the 'data package' had he known about it and would have preferred to explain the presence of '?' in the names of some candidates. 9
In a letter dated May 23, 2016, Atty. Eduardo Bringas (Atty. Bringas), the President of One Vote Movement, requested GMA-7 to furnish him the complete data obtained through the mirror server. 10 In response, GMA-7 explained that the COMELEC is the sole source and custodian of such information, and that its use of the data is limited to posting the election results as they are received. GMA-7 further informed Atty. Bringas that he can access its website or request the COMELEC for official confirmation of the election results. 11 Nevertheless, Atty. Bringas did not ask the COMELEC to provide him the information sought from GMA-7 or seek any clarification on the hash code incident. CAIHTE
On June 2, 2016, Atty. Bringas together with Bishop Reuben Abante and Moses Rivera (petitioners) collectively filed an action for mandamus against the COMELEC and GMA-7. The petitioners invoke their right to information, and claim that the COMELEC was remiss in its duty to ensure honest, credible, and peaceful elections. Due to the news report on the hash code change, the petitioners seek to compel the COMELEC and GMA-7 to furnish them with data from the transparency server including a copy of the confidentiality agreement. 12 The petitioners urge the COMELEC to investigate the hash code incident and prosecute Smartmatic, Inc.'s personnel who introduced the server script. The petitioners ask for access to the AES' hash and source codes and the random manual audit report. 13 Moreover, the petitioners allege that GMA-7 reported the election results without the 'undervotes' and 'overvotes' for the candidates. 14 The petitioners posit that the reported hash code change and the fluctuations in the unaccounted votes are related. 15 These issues are echoed in the reliefs prayed for in the petition, to wit:
1. For COMELEC to provide the complete data of the updates of the elections for the positions of the president and vice-president from the time votes were transmitted on May 9, 2016 up to the time before the actual canvassing of Congress in the same sequential order of updates received by the network, indicating the places where the votes came per update result;
2. For COMELEC to explain the apparent erratic upsurge and abrupt fall in the discrepancy between the votes for the president and vice-president from the May 9, 2016 7:25 P.M.; 7:45 P.M.; 8:05 P.M. and 8:25 P.M.; specifically, where these votes come from and where they were later assigned.
3. To require GMA-7 to provide all the published updates of the election results and the raw data that were received from the transparency or mirror server which shall serve as the control data, unless proven or shown unreliable and only for the particular portion shown as such.
4. Require the COMELEC to provide the public of the confidentiality agreement it required from the end-users as pre-condition to their access to COMELEC Server.
5. Require COMELEC to prosecute or cause the prosecution of the Smartmatic personnel who tampered with the AES and those who may have conspired with him;
6. To require the respondent COMELEC to allow the petitioners and the public access to the source codes and hash codes that were certified on January 26, 2016; February 9, 2016 and February 11, 2016 to have them examined by competent IT experts and to provide the petitioners copy of the final report of the Random Manual Audit from the 715 precincts that were audited pursuant to COMELEC Rules; and
7. To cause an independent and thorough investigation of the two reported incidents, directing the members and chair of the respondent Commission who already made conclusions regarding the said incidents to inhibit themselves. 16
The COMELEC, through the Office of the Solicitor General (OSG), contends that the petitioners have no legal standing to file the action for mandamus. Further, the petition for mandamus is premature for noncompliance with the doctrine of exhaustion of administrative remedies. At any rate, the alleged tampering of hash code is speculative, and the winning candidates have been proclaimed. 17 Similarly, GMA-7 asks for the dismissal of the action for mandamus, and explains that it cannot be compelled to disclose information without violating the confidentiality agreement. Also, the hash code incident is best threshed out in an election protest. 18
RULING
Judicial review may be exercised only when the party challenging the act has the requisite legal standing which refers to a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. 19 The party's interest must also be material as distinguished from mere interest in the question involved, or a mere incidental interest. It must be personal, and not based on a desire to vindicate the constitutional right of some third and unrelated party. 20 Notably, however, the requirement of personal interest is satisfied when a party invokes his or her right to information on matters of public concern. 21 As such, a party is not even required to present any special interest it being sufficient that he or she is a citizen. 22 This is because the constitutional provision on the right to information is self-executing and applies even without demand. 23
Here, the petitioners have the legal standing to file an action for mandamus to enforce their right to information on election-related matters. Indeed, the electoral exercises are matters of great public concern. 24 Yet, the petitioners' personality to bring an action for mandamus as citizens begins and ends only with the enforcement of their right to information and access to related documents. The petitioners' legal standing cannot be extended to their flurry of demands to direct the COMELEC to investigate the hash code incident and to prosecute the alleged perpetrator. Verily, these issues entail more than access to information which require petitioners to allege a special or material interest. Furthermore, the decision to conduct an investigation and to apprehend the perpetrator is discretionary and not ministerial on the part of the COMELEC. On this point, it bears emphasis that the writ of mandamus lies to require the execution of a ministerial duty. 25 It cannot be used to control the judgment and discretion of an officer in the decision of a matter which the law gave him the power and imposed upon him the duty to decide for himself. 26
Although the petitioners have legal standing as citizens, the action for mandamus must be dismissed for lack of cause of action due to non-exhaustion of administrative remedies. In this case, the petitioners failed to establish that there is no plain, speedy, and adequate remedy in the ordinary course of law before resorting to mandamus. 27 Absent any exceptional reason, the petitioners went directly to this Court without prior request to the COMELEC which is the custodian of election-related information. To be sure, the petitioner only sent a letter-request to GMA-7 and not the COMELEC. Corollarily, it can hardly be said that the COMELEC denied the petitioners access to these data. On this score, the Court reiterates that a cause of action does not accrue until the party obligated refuses, expressly or impliedly, to comply with its duty. 28 Clearly, the petitioners failed to exhaust the administrative remedies which has an adverse effect on their cause of action in availing mandamus. The non-observance of the doctrine of exhaustion of administrative remedies results in lack of cause of action, which is one of the grounds in the Rules of Court justifying the dismissal of the complaint. 29 DETACa
Lastly, the petitioners have no cause of action against GMA-7 because it is not a government agency. The petitioners did not even allege that GMA-7 has a public or quasi-public duty to provide the desired information. It is settled that an action for mandamus will not lie against an individual unless some obligation in the nature of a public or quasi-public duty is imposed. 30 At any rate, GMA-7 is bound by the confidentiality agreement to maintain the security of the transparency and minor servers.
FOR THESE REASONS, the petition is DISMISSED." Leonen, J., on official leave. (32)
By authority of the Court:
(SGD.) MARIFE M. LOMIBAO-CUEVASClerk of Court
Footnotes
1. 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; approved on December 22, 1997.
2. 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'; approved on January 23, 2007.
3. Republic Act No. 9369, Section 19.
4. Accessed on March 7, 2021, available at https://techterms.com/definition/mirror.
5. COMELEC Resolution No. 10105A or GUIDELINES FOR SECURING ELECTRONIC COPIES OF THE ELECTRONICALLY TRANSMITTED ELECTION RESULTS FROM THE TRANSPARENCY AND MIRROR SERVERS BY MASS MEDIA ENTITIES AND ACCREDITED CITIZENS' ARMS IN CONNECTION WITH THE 09 MAY 2016 NATIONAL, LOCAL AND ARMM ELECTIONS, provides:
'11. Reporting disclaimers. — Pursuant to second (2nd) to the last paragraph of Section 19 of RA 9369, the COMELEC shall consider as the 'Official Election Results' the election returns transmitted electronically to the various board of canvassers which shall be used as the bases for the canvassing of votes and proclamation of winning candidates. Should end users publish, report, exhibit or broadcast the election results based on the data received from the Transparency or Mirror servers, the report must identify the source of the information together with a disclaimer or caveat informing the public that the same are 'Unofficial Election Results[.'] All end users shall be free to exercise their own discretion or judgment in developing the wording of this disclaimer or caveat as long as the tenor of this Section is present and clearly conveyed in their report.' (Emphasis supplied.)
6. The GMA-7 made the following reporting disclaimer on its website as required: 'Partial and Unofficial Results as of x x x representing x x x of the Election Returns. (x x x of x x x Election Returns) (x x x of x x x Registered Voters). Source: COMELEC-GMA Mirror Server.' ELEKSYON 2016, accessed on January 5, 2021, available at https://www.gmanetwork.com/news/eleksyon2016/results/.
7. Hush-hush: The hash code explained by Eimor P. Santos, CNN Philippines, accessed on January 8, 2021 at https://cnnphilippines.com/news/2016/05/12/Hash-code-explainer-2016-elections.html; A hash code is reported as an alphanumeric sequence unique to software, which is like a digital fingerprint to ensure its identity.
8. Comelec's Guanzon slams Smartmatic over hash code Paterno R. Esmaquel II, accessed on January 5, 2021, available at https://www.rappler.com/nation/elections/comelec-guanzon-smartmatic-hash-code.
9.Rollo, p. 16; COMELEC: Hash code issue blown out of proportion by Parteno R. Esmaquel II, accessed on January 5, 2021, available at https://www.rappler.com/nation/elections/comelec-hash-code-issue-marcos-robredo.
10.Id. at 37-38. The letter reads:
This is with regard to the recent May 9, 2016 Elections where your Network reported live the updates of the results, particularly for the positions of President and Vice-President, fresh from the Minor Server of COMELEC.
It is unfortunate that the televised updates of the results coming from the Transparency Server of COMELEC which you received through the Mirror Server that was assigned to you by virtue of COMELEC RESOLUTION NO. 10105A were incomplete or were edited at your end to exclude the overvotes and/or overvotes and even the votes cast for the late Ambassador Roy Seneres, as well as the total number of votes casts per update, effectively preventing your viewers from securing actual and accurate information necessary for the public to make an assessment and determine on the basis of the reliable empirical data the candidate actually elected by the people and the effect, if any, of the unauthorized change of the hash code on the election result.
In this regard, may we request for copies of the updates from May 9, 2016 at 7:25 A.M. to May 10, 2016 at 12 noon. We need the full data transparency serveri.e., The votes for the president and the vice-president; the undervotes and/or overvotes, the total votes casts and the precincts where these votes originated per update as collated based on the news reports from 7:25 P.M. of May 9, 2016 to May 10, 2016 at 12:00 p.m. in the same order or sequence they were received and at 20 Minutes intervals or less. (Emphases Supplied.)
11.Id. at 34.
12.Id. at 16-19.
13.Id. at 28-29.
14.Id. at 19-24. The petitioners defined an 'overvote' as a situation when a voter selects candidates more than the allowed number of seats for a position, while an 'undervote' is a situation when a voter selects candidates less than the allowed maximum number of seats for a position.
15.Id. at 18-19.
16.Id. at 28-29; and 208-209.
17.Id. at 144-161.
18.Id. at 51-74.
19. Carlo A. Cruz, Philippine Political Law, 2002 Ed., p. 259. See also Angara v. Electoral Commission, 63 Phil. 139, 158 (1936); Board of Optometry v. Hon. Colet, 328 Phil. 1187, 1201 (1996); Macasiano v. National Housing Authority (Resolution), 296 Phil. 56, 64 (1993); See Santos III v. Northwestern Airlines, 285 Phil. 734 (1992); and National Economic Protectionism Association v. Hon. Ongpin, 253 Phil. 643, 650 (1989).
20.Hon. Aguinaldo v. Pres. Benigno Simeon C. Aquino III, 801 Phil. 492, 522 (2016).
21. 1987 CONSTITUTION, ART. III, SEC. 7.
22.Guingona, Jr. v. COMELEC (Resolution), 634 Phil. 516, 527 (2010).
23.Legaspi v. Civil Service Commission, 234 Phil. 521, 528 (1987). See also De Leon, H. and De Leon, Jr. H., Philippine Constitutional Law, Principles and Cases, Volume I, (2017 ed.). pp. 172 and 595.
24.Kabataan Part List v. COMELEC, 775 Phil. 523, 538 (2015), citing Bishop Pabillo, DD v. COMELEC, 758 Phil. 806, 838 (2015), and Guingona, Jr. v. COMELEC, 634 Phil. 516, 529 (2010).
25.Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay, 595 Phil. 305, 326 (2008).
26.Lamb v. Phipps, 22 Phil. 456, 483-484 (1912).
27.Bagumbayan-VNP Movement, Inc. v. COMELEC, 782 Phil. 1306, 1318-1319 (2016); RULES OF COURT, Rule 65, SEC. 3.
28.Philippine Coconut Authority v. Primex Coco Products, Inc., 528 Phil. 365, 387 (2006).
29. See Lihaylihay v. Treasurer of the Philippines, G.R. No. 192223, July 23, 2018.
30.Star Special Watchman and Detective Agency, Inc. v. Puerto Princesa City, 733 Phil. 62, 77 (2014).