EN BANC
[G.R. No. 207930. August 6, 2013.]
MANUELITO R. LUNA, petitioner, vs. COMMISSION ON ELECTIONS, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, BUDGET SECRETARY FLORENCIO ABAD AND SMARTMATIC-TIM CORPORATION, REPRESENTED BY SMARTMATIC ASIA-PACIFIC PRESIDENT CESAR FLORES, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court en banc issued a Resolution dated AUGUST 6, 2013, which reads as follows:
"G.R. No. 207930 (Manuelito R. Luna vs. Commission on Elections, Senate of the Philippines, House of Representatives, Budget Secretary Florencio Abad and Smartmatic-Tim Corporation, represented by Smartmatic Asia-Pacific President Cesar Flores). — For resolution is a petition for injunction and mandamus filed by petitioner Manuelito Luna in support of his claim that the paper-based election system used by the Commission on Elections (COMELEC) in the 2010 and 2013 elections is a failure and should be replaced by the Direct Recording Electronic (DRE) election system. He cites the following in support of his petition:
(i) The Precinct Count Optical Scan (PCOS) machines malfunctioned;
(ii) The security features of the PCOS were unjustifiably disabled; ballot entries were misprinted; the PCOS rejected and misread the ballots; and the Compact Flash cards were corrupted;
(iii) Failed/delayed initialization; delayed/failed/incomplete transmission of results in certain areas despite strong signals reported by major telecommunications companies; incomplete canvass; and widespread lowering of canvassing threshold;
(iv) Legal squabble between Dominion Voting Systems and Smartmatic; IHEAcC
(v) The COMELEC and Smartmatic's failure to promptly make the source code available for review;
(vi) The Parish Pastoral Council for Responsible Voting's announcement that there were lost/unaccounted votes that prompted the COMELEC to order the closure of the transparency server;
(vii) Ever-changing total votes cast in the senatorial election, as reported in the COMELEC site, vis-a-vis the Smartmatic report revealing the results; thus, at the COMELEC's site — 39,898,992 votes cast; and at the Smartmatic International site — 31,568,679 votes cast; and
(viii) Statistical error in the selection of the precincts for the Random Manual Audit (RMA). 1
The petitioner also points out that right after the elections, former and present high ranking government officials and other interest groups have questioned the integrity of the elections and have called for system change.
The petitioner presents as sole issue, for the Court's resolution, of whether the continuous use of the current paper-based election system by the COMELEC during elections violates the right of the people to free, orderly, honest, peaceful, credible and informed elections. 2
The petition before us is entitled petitions for injunction — to prevent the COMELEC from further using the current paper-based election system in the Philippine elections — and (in the alternative) mandamus — to compel the COMELEC to adopt a DRE election system as authorized under Republic Act (RA) No. 8436, as amended. TAacCE
The petitioner claims that the numerous instances he cited only show that the paper-based election system adopted by the COMELEC failed to comply with the state principle on the republican and democratic nature of our government and the statutory policy objective "to ensure . . . honest, . . . credible and informed elections[.]"3 The petitioner prays for the following reliefs:
(a) Permanently enjoin the [COMELEC] from further using the present paper-based election system;
(b) Declare the Automated Election System Act insofar as it provides for the use of such system in national, local and ARMM elections, as invalid or unconstitutional[;]
(c) Permanently enjoin the Department of Budget and Management (DBM) from disbursing funds in connection with the use of such system;
(d) Order the [COMELEC] to adopt the alternative system which is the Direct Recording Electronic (DRE) Election System as provided for in R.A. No. 8436, as amended by R.A. [No.] 9369. 4 [emphases, underscores ours]
We find the petition on its face to be substantially deficient and must be dismissed outright.
First, the petitioner's petition for mandamus failed to allege that the COMELEC was performing a ministerial function. 5 As an extraordinary writ, the remedy of mandamus lies only to compel an officer to perform a ministerial duty, not a discretionary one. Mandamus will not issue to control the exercise of discretion of a public officer where the law imposes upon him the duty to exercise his judgment in the manner he is required to act; the judgment of the officer is to be exercised, not that of the court. 6
The petition in its injunction aspect fails to allege with particularity the following requisites: (1) the right to be protected; and (2) that the acts against which the injunction is to be directed are violative of the right entitled to protection. 7
The right to "free, orderly, honest, peaceful, credible and informed elections" is too broad a right to be the subject matter of injunction. Out of liberality, the Court may treat this aspect of the petition as one for prohibition. However, the petitioner failed to show that the COMELEC was performing a judicial, quasi-judicial or ministerial function in performing the assailed acts — an express requisite in filing a petition for prohibition. 8 cSIACD
More importantly, even if we again relax the above requirement, the Court cannot consider the present petition as one for prohibition despite the petitioner's prayer for the declaration of the unconstitutionality of the automated election system (AES) authorized by law. The petitioner has completely failed to squarely raise the issue of constitutionality of the AES in his petition. The petitioner must not confuse a paper-based AES (which comprises of Election Management System, PCOS System and Consolidation/Canvassing System), on one hand, and the AES itself. 9 Notably, what the petitioner prayed for, inter alia, is the declaration of the unconstitutionality of the AES authorized under the law, without adequately advancing arguments in support of this particular prayer.
What the petitioner primarily complained about are the events that happened during the last election that allegedly serve as bases for the Court to order the COMELEC to abandon the paper-based election system and to adopt instead the DRE system. This specific request gives rise to the second point below.
Second, the choice of the kind of automated election system is not lodged with the Court, but with the COMELEC as the agency charged with the enforcement and administration of election laws. 10 Section 6 of RA No. 9369 reads:
SEC. 6.. . .
"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[.]" [italics, underscore and emphases ours] TEaADS
The questions of appropriateness and practicality are matters that are within the exclusive ambit of the COMELEC's authority and expertise, as recognized by the law itself. Contrary to the petitioner's submission, the correlative right of a registered voter, arising from the COMELEC's constitutional mandate to hold "free, orderly, honest, peaceful, credible and informed elections," 11 is something that can be demanded only within the context of the law which the COMELEC would enforce and administer. Under the law, Congress authorized the COMELEC to use an AES and gave it the discretion to choose between a paper-based election system or a DRE.
Unfortunately, the petitioner has not adequately questioned the constitutionality of the COMELEC's congressional authority to use an AES. What he argued is the alleged failure of the paper-based election system which warrants the adoption of the DRE system. However, the adoption of a DRE over a paper-based election system is obviously a question of pure policy — a non justiciable question over which the Court has no jurisdiction. 12
Even if the petitioner implies that a violation of some of the provisions of RA No. 8436, 13 as amended, has occurred in enumerating the election irregularities/anomalies (e.g., failure of the COMELEC and Smartmatic to promptly make the source code available for review; statistical error in the selection of the precincts for RMA; and legal squabble between Dominion Voting Systems and Smartmatic) that were reported, documented, or even admitted by the COMELEC itself, the Court is without power to substitute its judgment for that of the COMELEC as to the AES technology to be used. Other remedies exist to address these alleged violations. 14
The law itself, recognizing the need to evaluate and reevaluate the efficiency of the chosen technology, requires the Advisory Council to "[p]repare 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." 15 The Oversight Committee, on the other hand, is tasked to "conduct a comprehensive assessment and evaluation of the performance of the different AES technologies implemented and shall make appropriate recommendations to Congress" 16 on the following matters: SDIaHE
1. . . .
2. An evaluation of [the AES technology's] accuracy through a comparison of a random sample of the AES election results with a manual tabulation, and the conduct of similar tests;
3. . . .
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[.] TEcHCA
These remedies, available at the political level to address the petitioner's concerns, only emphasize the futility of this petition and the fallacy that for every legal wrong there is a judicial remedy. There are undoubtedly many wrongs the court may not correct, for instance, those involving political questions. 17 The choice of the appropriate AES technology is one of them.
WHEREFORE, we dismiss the petition outright for substantive deficiency and consequent lack of merit." (adv2)
Very truly yours,
(SGD.) ENRIQUETA E. VIDALClerk of Court
Footnotes
1.Rollo, pp. 9-10.
2.Id. at 9.
3.Section 1 of RA 8436, as amended, reads:
SECTION 1. Declaration of Policy. — It is the policy of the State to ensure free, orderly, honest, peaceful, credible and informed elections, plebiscites, referenda, recall and other similar electoral exercises by improving on the election process and adopting systems, which shall involve the use of an automated election system that will ensure the secrecy and sanctity of the ballot and all election, consolidation and transmission documents in order that the process shall be transparent and credible and that the results shall be fast, accurate and reflective of the genuine will of the people.
The State recognizes the mandate and authority of the Commission to prescribe the adoption and use of the most suitable technology of demonstrated capability taking into account the situation prevailing in the area and the funds available for the purpose. [italics ours]
4.Rollo, p. 14.
5.RULES OF COURT, Rule 65, Section 3.
6.Lozada, et al. v. COMELEC, 205 Phil. 283, 288 (1983); and Alvarez v. PICOP Resources, Inc., G.R. Nos. 162243, 164516 and 171875, December 3, 2009, 606 SCRA 444, 467.
7.Philippine Economic Zone Authority v. Carantes, G.R. No. 181274, June 23, 2010, 621 SCRA 569, 578-579.
8.RULES OF COURT, Rule 65, Section 2.
9.Section 2 (1) of RA No. 9369 reads:
1. Automated election system, hereinafter [referred] to as AES — a system using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing, and transmission of election result, and other electoral process[.]
10.CONSTITUTION, Article IX-C, Section 2 (1).
11.Article IX-C, Sections 2 (4) and 5.
12.Tañada and Macapagal v. Cuenco, et al., 103 Phil. 1051, 1066 (1957), defines a political/non-justiciable question as one which, under the Constitution, is "to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority had been delegated to the Legislature or Executive branch of the government."
13.For example, Section 7 of RA No. 8436, as amended prescribes minimum system capabilities of the chosen AES; Section 24 requires an RMA; and Section 10 requires the conduct of an independent source code review.
14.In fact, a petition (Bagumbayan v. Commission on Elections, G.R. No. 206719) seeking to compel the COMELEC to make the source code available for review is pending with the Court.
15.RA No. 9369, Section 9 (7).
16.RA No. 9369, Section 27.
17.Vera v. Avelino, 77 Phil. 192, 205 (1946).