Penson vs. Commission on Elections

The Senate Electoral Tribunal is the sole judge of all contests relating to the election, returns, and qualifications of members of the Senate, and its jurisdiction is original and exclusive. Once a winning candidate has been proclaimed, taken his oath, and assumed office as a member of the Senate, the proper recourse of an aggrieved party is to file an election protest before the SET, not a petition for certiorari before the Supreme Court.

The case involves the May 13, 2013 national and local elections, conducted under the automated election system (AES) authorized by Republic Act No. 8436, as amended by Republic Act No. 9369 (the "Automation Law"). The COMELEC, sitting en banc as the NBOC for Senators and Party-List Representatives, is mandated to canvass the results by consolidating the certificates of canvass electronically transmitted and thereafter proclaim the winning candidates. Section 17, Article VI of the 1987 Constitution provides that the Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members.

On December 2, 1997, Congress enacted Republic Act No. 8436, the "Election Modernization Act of 1997," which authorized the COMELEC to utilize an automated election system (AES) for the process of voting, counting of votes, and canvassing/consolidation of results. Section 23 of R.A. No. 8436 provided that the Chairman and members of the COMELEC sitting en banc shall compose the national board of canvassers for senators, which shall canvass the results by consolidating the results contained in the data storage devices submitted by the district, provincial, and city boards of canvassers, and thereafter proclaim the winning candidates. On January 23, 2007, R.A. No. 8436 was amended by R.A. No. 9369, which changed the mandate of the COMELEC, now sitting as the NBOC for both Senators and Party-List Representatives, to proclaim the winning candidates after consolidating the certificate of canvass electronically transmitted. Section 29 of R.A. No. 9369 mandates a Random Manual Audit (RMA) in one precinct per congressional district, randomly chosen by the Commission in each province and city.

On May 10, 2013, the COMELEC-NBOC randomly selected the cities and municipalities to be subjected to RMA through the Automated Random Selection Program, and a total of 234 clustered precincts were selected. The May 13, 2013 national and local elections were held, and the COMELEC-NBOC proceeded to canvass the results by consolidating the electronically transmitted certificates of canvass. On May 18, 2013, the COMELEC-NBOC issued Resolution No. 004-13, initially proclaiming the following senatorial candidates who garnered the most number of votes: Angara, Aquino, Binay, Cayetano, Ejercito, Escudero, Honasan, Legarda, Llamanzares, Pimentel, Trillanes, and Villar. The initial proclamation was based on the COMELEC-NBOC's determination that the remaining number of votes that had yet to be canvassed would not materially affect the votes obtained by the 12 winning candidates. On June 5, 2013, the COMELEC-NBOC issued Resolution No. 0010-13, which officially declared the 12 candidates as winners and proclaimed them as duly elected Senators, citing Senatorial Canvass Report No. 17.

On March 31, 2014, petitioners filed the instant petition seeking to nullify the NBOC Resolutions and Senatorial Canvass Report No. 17. Petitioners alleged that the COMELEC-NBOC committed grave abuse of discretion when it prematurely made a partial proclamation despite the questionable accuracy of the election returns, rooted in the variance between the results of the RMA and the manual count, with only 212 out of 234 RMA Reports or 90.6% processed. Petitioners also decried the termination of the canvassing on the premise that the remaining votes would not materially affect the results, the alleged failure to comply with the authentication of electronically transmitted election results under Section 30 of R.A. No. 8436, the alleged automated "dagdag bawas" resulting in the proclamation of "accidental senators," and the alleged violation of the constitutional provision on transparency in matters of public concern.

On October 10, 2014, Glenn A. Chong, Melchor G. Magdamo, Nelson J. Celis, Wendell A. Unlayao, and Volunteers Against Crime and Corruption, represented by Martin B. Diño, filed a Petition-in-Intervention, reiterating the main issues and adding arguments regarding the failure to comply with Section 12 of R.A. No. 9369 on the source code of the PCOS machines, the authentication requirement under Section 30 of R.A. No. 8436, the minimum systems capabilities under R.A. No. 8436, and the Decision dated March 21, 2014 of the Regional Trial Court of Gapan City, Branch 34, Nueva Ecija in Civil Case No. 4378-13, which allegedly involved an anomaly in the counting of votes for senatorial candidate Bro. Eddie Villanueva.

• Premature Proclamation: Petitioners argued that the COMELEC-NBOC committed grave abuse of discretion when it prematurely made a partial proclamation of the 12 senators despite the questionable accuracy of the election returns, rooted in the variance between the results of the RMA and the manual count, with only 212 out of 234 RMA Reports or 90.6% processed, and that the COMELEC-NBOC should have replaced the precincts that could not be accounted for.

• Premature Termination of Canvass: Petitioners argued that the COMELEC-NBOC committed grave abuse of discretion when it terminated the canvassing on the premise that the "remaining votes that have yet to be canvassed would not materially affect the results," without stating the relevant data pertaining to the total number of votes and the number of votes still to be canvassed.

• Authentication Requirement: Petitioners argued that the COMELEC-NBOC failed to comply with the authentication of electronically transmitted election results under Section 30 of R.A. No. 8436, as the electronic transmissions were not digitally signed, stemming from the alleged failure of the Technical Evaluation Committee (TEC) to include in its Final Report that there were in fact digital signatures.

• TEC Findings Ignored: Petitioners argued that the COMELEC-NBOC committed grave abuse of discretion when it ignored the findings of the TEC pertaining to the integrity of the conduct of the canvass and the automated "dagdag bawas," and failed to act on the TEC's recommendation that proper identification and auditing of additional precincts was necessary.

• Transparency Violation: Petitioners argued that the COMELEC-NBOC violated the constitutional provision on transparency in matters of public concern when it failed to make public the conduct of the audit, the results of the canvass with a breakdown by region, the results of the RMA, and the results of the Technical Report on the Root Cause Analysis for RMA.

• Jurisdiction of the SET: Petitioners contended that the jurisdiction of the SET in election "contests" is limited only to disputes between two contending parties whereby one challenges the validity of the other's election or qualification with the intention of replacing the former, and since they do not seek to replace the proclaimed winners, the jurisdiction over the case rests with the Court and not with the SET.

• Proper Remedy and Standing: Petitioners insisted that the petition for certiorari is the proper remedy and that they have legal standing to file the same because the case filed is a citizen's suit concerning an issue of transcendental importance, and that since the proclamation is void from the very beginning, the period to file the petition for certiorari is imprescriptible.

• Jurisdiction of the SET: The OSG asserted that the Court has no jurisdiction over the issues presented by petitioners as the same fall within the jurisdiction of the Senate Electoral Tribunal, which is the sole judge of all contests relating to the election, returns, and qualifications of the members of the Senate under Article VI, Section 17 of the 1987 Constitution.

• Improper Remedy: The OSG propounded that the petition for certiorari under Rule 65 is not the proper remedy to assail the NBOC Resolutions because the same were not issued by the COMELEC-NBOC in the exercise of its quasi-judicial functions, and that petitioners failed to show that there is no appeal, or any plain, speedy and adequate remedy available, as they had the remedy of filing a petition before the SET.

• Procedural Defects: The OSG pointed out that the petition is dismissible outright for being filed out of time, and that petitioners have no legal standing to file the present petition for failure to substantiate such personal interest that would be materially affected or prejudiced.

• No Grave Abuse of Discretion: The OSG asserted that there is no grave abuse of discretion when the COMELEC-NBOC proclaimed the 12 winning Senators because the alleged inaccuracies in the RMA is not a ground to delay the proclamation under Section 38 of R.A. No. 9369, and that there was nothing premature when the COMELEC-NBOC terminated the canvassing because the remaining votes would not affect the ranking of the winning candidates, as certified by its Election Records and Statistics Department that the number of registered voters not included in the Senatorial Canvass Report No. 17 is only 58,597.

• Authentication Compliance: The OSG propounded that there was compliance with the authentication requirement under Section 25 of R.A. No. 9369, citing Capalla vs. COMELEC, stressing that it was already settled that the PCOS machines are capable of producing digitally-signed transmissions.

• RMA Scope: The OSG contended that the TEC's recommendation to audit additional precincts cannot override the clear mandate of Section 24 of R.A. No. 9369, which only requires that RMA be conducted in one precinct per congressional district, and that it would be impractical and too costly to accommodate petitioners' demand to identify precincts with extraneous lines.

• Public Disclosure: The OSG claimed that the COMELEC-NBOC has made public all the documents relative to the conduct of the RMA, including the RMA Final Report, and that these documents are posted in the COMELEC website, and that the public disclosure of the Technical Report on the Root Cause Analysis cannot be denied as petitioners were able to attach the same to their petition.

• Source Code and Authentication: The OSG stressed that the COMELEC-NBOC complied with Section 10 of R.A. No. 8436, as amended, by making the source code available for review, and that the issue concerning authentication has long been settled in Capalla vs. COMELEC, highlighting that the PCOS machines used in the 2010 elections are the same PCOS machines used during the 2013 elections.

• Voter-Verified Paper Audit Trail: The OSG underscored that the AES complied with the minimum capabilities standards under R.A. No. 8436 by providing a voter-verified paper audit trail, as made possible by the RMA.

• Jurisdiction of the SET: Whether the Senate Electoral Tribunal has exclusive jurisdiction over the matters raised in the petition, to the exclusion of the Supreme Court.
• Propriety of Certiorari: Whether the petition for certiorari under Rule 65 is the proper remedy to assail the NBOC Resolutions and Senatorial Canvass Report No. 17.
• Dismissal of the Petition-in-Intervention: Whether the petition-in-Intervention should be dismissed as a consequence of the dismissal of the main petition.

• Jurisdiction of the SET: Yes. The SET has original and exclusive jurisdiction over all contests relating to the election, returns, and qualifications of members of the Senate under Section 17, Article VI of the 1987 Constitution. Once a winning candidate has been proclaimed, taken his oath, and assumed office, the proper recourse of an aggrieved party is to file an election protest before the SET.

• Propriety of Certiorari: No. The petition for certiorari under Rule 65 is not the proper remedy because petitioners had the plain, speedy, and adequate remedy of filing an election protest before the SET, which they failed to avail. Certiorari cannot be allowed when a party fails to appeal a judgment to the proper forum despite the availability of that remedy, as certiorari is not a substitute for a lost appeal.

• Dismissal of the Petition-in-Intervention: Yes. The dismissal of the main petition necessarily results in the dismissal of the petition-in-intervention, as intervention is merely ancillary and supplemental to the existing litigation and never an independent action.

• Jurisdiction of the SET: The Court reasoned that Section 17, Article VI of the 1987 Constitution expressly articulates the constitutional mandate and jurisdiction of the SET as the sole judge of all contests relating to the "election, returns, and qualifications" of the members of the Senate. The use of the word "sole" underscores the exclusivity of the electoral tribunal's jurisdiction, which is intended to be full, clear, complete, and unimpaired. Citing Co vs. Electoral Tribunal of the House of Representatives and Lazatin vs. HRET, the Court emphasized that the jurisdiction of the Electoral Tribunal is original and exclusive. The Court also cited Vinzons-Chato vs. COMELEC, Limkaichong vs. COMELEC, and Barbers vs. COMELEC to establish that once a winning candidate has been proclaimed, taken his oath, and assumed office, the COMELEC's jurisdiction ends and the SET's jurisdiction begins. The Court rejected petitioners' narrow definition of election "contests" as disputes between two contending parties whereby one intends to replace the other, citing Javier vs. COMELEC, which held that the term "contests" should receive the widest possible scope, referring to any matter involving the title or claim of title to an elective office, made before or after proclamation of the winner, whether or not the contestant is claiming the office in dispute. The Court found that petitioners Penson, Señeres, David, and Falcone, being candidates for the position of Senator during the 2013 elections, were the proper parties to file an election protest before the SET under Rules 15 and 16 of the 2013 Revised Rules of the SET.

• Propriety of Certiorari: The Court reasoned that certiorari under Rule 65 is a remedy narrow in scope and inflexible in character, which can be invoked only for an error of jurisdiction. Being an extraordinary remedy, a writ of certiorari may only be availed of when there is no appeal or plain, speedy and adequate remedy in the ordinary course of law. The Court held that the election protest before the SET was a plain, speedy, and adequate remedy available to petitioners, which they opted not to avail. Petitioners failed to prove that the election protest before the SET is an inadequate remedy that would not promptly relieve them from the effects of the assailed COMELEC-NBOC's issuances. Thus, the existence and availability of such remedy precludes them from resorting directly to the Court via a petition for certiorari.

• Dismissal of the Petition-in-Intervention: The Court reasoned that intervention is regarded as a mere collateral or accessory to the original action, such that the dismissal of the original case necessarily includes that of the petition-in-intervention. Citing Asian Terminals, Inc. vs. Bautista-Ricafort and Kendrick vs. Kendrick, the Court held that intervention presupposes the pendency of a suit in a court of competent jurisdiction, and a court which has no jurisdiction over the principal action has no jurisdiction over a complaint-in-intervention.

• Sole Judge Doctrine — Under Section 17, Article VI of the 1987 Constitution, the Senate Electoral Tribunal and the House of Representatives Electoral Tribunal are the sole judges of all contests relating to the election, returns, and qualifications of their respective Members. The use of the word "sole" emphasizes the exclusive character of the jurisdiction conferred, which is intended to be full, clear, complete, and unimpaired. The Court applied this doctrine in holding that the SET, not the Supreme Court, has jurisdiction over the matters raised in the petition.

• Election "Contests" Doctrine — The term "contests" should not be given a restrictive meaning but should receive the widest possible scope, referring to any matter involving the title or claim of title to an elective office, made before or after proclamation of the winner, whether or not the contestant is claiming the office in dispute. This interpretation, laid down in Javier vs. COMELEC under the 1973 Constitution, remains instructive on the extent of the constitutional grant of jurisdiction bestowed upon the electoral tribunals under the 1987 Constitution, as the constitutional language has not changed.

• Proclamation Divests COMELEC of Jurisdiction Doctrine — Once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the Senate or the House of Representatives, the COMELEC's jurisdiction over election contests relating to his election, returns, and qualifications ends, and the Electoral Tribunal's own jurisdiction begins. The party questioning his qualification should present his case in a proper proceeding before the Electoral Tribunal.

• Certiorari as a Remedy of Last Recourse Doctrine — A special civil action for certiorari under Rule 65 is a limited form of review and is a remedy of last recourse, which lies only where there is no appeal nor plain, speedy and adequate remedy in the ordinary course of law. Certiorari cannot be allowed when a party fails to appeal a judgment to the proper forum despite the availability of that remedy, as certiorari is not a substitute for a lost appeal.

• Intervention is Ancillary Doctrine — Intervention is merely ancillary and supplemental to an existing litigation and never an independent action. The dismissal of the principal action necessarily results in the dismissal of the complaint-in-intervention, and a court which has no jurisdiction over the principal action has no jurisdiction over a complaint-in-intervention.

• "The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members." — This is the constitutional provision under Section 17, Article VI of the 1987 Constitution that establishes the exclusive jurisdiction of the SET and HRET over election contests of their respective members, and is the cornerstone of the Court's ruling.

• "The use of the word 'sole' in Section 17, Article VI of the 1987 Constitution underscores the exclusivity of the electoral tribunal's jurisdiction over all election contests relating to members of the House of Representatives and the Senate. The authority conferred upon these electoral tribunals is intended to be full, clear, complete and unimpaired, thereby divesting the jurisdiction previously vested upon the COMELEC under the 1973 Constitution over all contests relating to the election, returns, and qualifications of the members of the Batasang Pambansa." — This passage articulates the Court's interpretation of the "sole judge" doctrine and the exclusivity of the electoral tribunals' jurisdiction.

• "The word 'contests' should not be given a restrictive meaning; on the contrary, it should receive the widest possible scope conformably to the rule that the words used in the 1973 Constitution should be interpreted liberally. As employed in the 1973 Constitution, the term should be understood as referring to any matter involving the title or claim of title to an elective office, made before or after proclamation of the winner, whether or not the contestant is claiming the office in dispute." — This passage from Javier vs. COMELEC defines the broad scope of election "contests" and was applied by the Court to reject petitioners' narrow definition of the term.

• "Certiorari cannot be allowed when a party to a case fails to appeal a judgment to the proper forum despite the availability of that remedy, certiorari not being a substitute for lost appeal." — This passage states the rule that certiorari is not a substitute for a lost appeal, which the Court applied in dismissing the petition for failure to avail of the plain, speedy, and adequate remedy of filing an election protest before the SET.

• Co vs. Electoral Tribunal of the House of Representatives, 276 Phil. 758 (1991) — Cited as controlling precedent for the proposition that the jurisdiction of the Electoral Tribunal is original and exclusive, and that the use of the word "sole" emphasizes the exclusive character of the jurisdiction conferred.

• Lazatin vs. HRET, 250 Phil. 390 (1988) — Cited in Co and relied upon by the Court to emphasize that the jurisdiction of the Electoral Tribunal under the 1987 Constitution is original and exclusive, and that the exercise of the power is intended to be as complete and unimpaired as if it had remained originally in the legislature.

• Vinzons-Chato vs. COMELEC, 548 Phil. 712 (2007) — Cited as controlling precedent for the rule that once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELEC's jurisdiction over election contests ends and the HRET's own jurisdiction begins.

• Limkaichong vs. COMELEC, 601 Phil. 751 (2009) — Cited as controlling precedent for the same rule, emphasizing that the proclamation of a winning candidate divests the COMELEC of its jurisdiction over matters pending before it at the time of the proclamation.

• Barbers vs. COMELEC, 499 Phil. 570 (2005) — Cited as controlling precedent for the rule that where a candidate has already been proclaimed winner in the congressional elections, the remedy of the petitioner is to file an electoral protest with the Electoral Tribunal, and that any pursuit by the Court to assume jurisdiction would be tantamount to an encroachment of the constitutional functions of the SET.

• Rasul vs. COMELEC, 371 Phil. 760 (1999) — Cited as controlling precedent for the statutory requirement that an election protest must be filed only by a candidate who has duly filed a certificate of candidacy and had been voted upon for the said office.

• Javier vs. COMELEC, 228 Phil. 193 (1986) — Cited as the leading case expounding on the phrase "election, returns and qualifications" and the meaning of the term "contests," which the Court applied in interpreting the SET's jurisdiction under the 1987 Constitution.

• Capalla vs. COMELEC, 687 Phil. 617 (2012) — Cited by the OSG and relied upon for the proposition that the PCOS machines are capable of producing digitally-signed transmissions, and that the alleged lack of categorical statement from the TEC does not necessarily mean non-compliance with the authentication requirement.

• Asian Terminals, Inc. vs. Bautista-Ricafort, 536 Phil. 614 (2006) — Cited as controlling precedent for the rule that intervention is merely ancillary and supplemental to the existing litigation, and that the dismissal of the principal action necessarily results in the dismissal of the complaint-in-intervention.

• Kendrick vs. Kendrick, 5 Cir., 16 F.2d 744 (1926) — Cited as an old but still relevant case elucidating that an existing suit within the court's jurisdiction is a prerequisite of an intervention.

• Section 17, Article VI, 1987 Constitution — Provides that the Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. The Court applied this provision in holding that the SET has exclusive jurisdiction over the matters raised in the petition.

• Section 2(2), Article XII-C, 1973 Constitution — Provided that the COMELEC shall be the sole judge of all contests relating to the elections, returns, and qualifications of all Members of the Batasang Pambansa and elective provincial and city officials. The Court cited this provision to show the historical context of the jurisdiction now vested in the electoral tribunals.

• Section 6, R.A. No. 8436 — Authorized the COMELEC to utilize an automated election system for the process of voting, counting of votes, and canvassing/consolidation of results in the national and local elections.

• Section 23, R.A. No. 8436 — Provided for the composition of the NBOC for Senators, comprised of the Chairman and Members of the COMELEC sitting en banc, which shall canvass the results for senators by consolidating the results contained in the data storage devices submitted by the district, provincial, and city boards of canvassers.

• Section 22, R.A. No. 9369 — Amended Section 23 of R.A. No. 8436, changing the mandate of the COMELEC, now sitting as the NBOC for both Senators and Party-List Representatives, to proclaim the winning candidates after consolidating the certificate of canvass electronically transmitted.

• Section 29, R.A. No. 9369 — Mandates a Random Manual Audit in one precinct per congressional district randomly chosen by the Commission in each province and city, and provides that any difference of root cause shall initiate a manual count for those precincts affected by the computer or procedural error.

• Section 30, R.A. No. 8436 — Pertains to the authentication of electronically transmitted election results, which petitioners alleged was not complied with because the electronic transmissions were not digitally signed.

• Section 12, R.A. No. 9369 — Requires that the source code of the PCOS machines be made available and open to any interested parties for review, which petitioners-intervenors alleged was not complied with.

• Section 10, R.A. No. 8436, as amended — Pertains to the minimum systems capabilities of the AES, which the OSG argued was complied with by providing a voter-verified paper audit trail.

• Section 38, R.A. No. 9369 — Cited by the OSG for the proposition that the alleged inaccuracies in the RMA is not a ground to delay the proclamation of the winning candidates.

• Rule 14, 2013 Revised Rules of the Senate Electoral Tribunal — Mirrors the constitutional provision delineating the SET's exclusive jurisdiction over all election contests relating to the members of the Senate.

• Rules 15 and 16, 2013 Revised Rules of the Senate Electoral Tribunal — Provide the manner of initiating an election protest against the members of the Senate, requiring that a verified petition contesting the election of any Member of the Senate shall be filed by any candidate who has duly filed a certificate of candidacy and been voted for the office of Senator within thirty (30) days after the proclamation of the protestee.

Gesmundo, C.J., Perlas-Bernabe, Leonen, Caguioa, Hernando, Carandang, Lazaro-Javier, Inting, Zalameda, M. Lopez, Gaerlan, Rosario, and Dimaampao, JJ., concurred.