Roque vs. Commission on Elections

The Supreme Court denied the motions for reconsideration, holding that: (1) arguments based on speculation and conjecture regarding possible failure of elections have no probative value and cannot justify nullification of the automation contract; (2) Comelec retains exclusive supervision and control over the electoral process under the automation contract, and did not abdicate its constitutional functions; (3) new factual allegations and issues not raised in the original petition cannot be raised for the first time in a motion for reconsideration; and (4) Comelec enjoys the presumption of good faith in implementing statutory requirements such as source code review.

The case arises from the controversy surrounding the automation of the May 2010 national and local elections. Petitioners, who are lawyers and election advocates, sought to nullify the contract awarded by the Comelec to the TIM-Smartmatic joint venture for the supply of Precinct Count Optical Scan (PCOS) machines and related services. They alleged that the contract violated Republic Act No. 8436 (the Election Modernization Act), as amended by Republic Act No. 9369, and the Constitution. The Supreme Court initially dismissed their petition on September 10, 2009, prompting the present motions for reconsideration.

• The Comelec awarded the contract for the 2010 Election Automation Project to a joint venture between Total Information Management Corporation (TIM) and Smartmatic International Corporation (Smartmatic) for the use of Precinct Count Optical Scan (PCOS) technology.
• Petitioners originally filed a petition assailing the contract award on grounds of non-compliance with pilot-testing requirements under RA 9369, alleged abdication of Comelec's constitutional functions, and other statutory violations.
• In its September 10, 2009 Decision, the Court dismissed the petition, holding that: (a) RA 8436 as amended does not require pilot-testing in the 2007 Philippine elections; (b) Comelec adopted a rigid technical evaluation mechanism; (c) Comelec retained supervision, oversight, and control; and (d) continuity and back-up plans were in place.
• In their Motion for Reconsideration, petitioners raised arguments based on "high probability" of failure of elections citing Comelec Chairman Melo's statements, alleged abdication of constitutional functions, lack of legal framework for manual ballot appreciation, inability to comply with source code review requirements, insufficiency of certifications regarding foreign use of the technology, inability to provide telecommunications facilities, and illegal subcontracting of PCOS machine manufacture to Quisdi.
• Intervenor Quadra sought an order for manual counting of ballots after printing and electronic transmission of election returns, citing concerns about auditability.

• The public pronouncements of Comelec Chairman Melo indicate a "high probability" of failure of automated elections, making the contract award gravely discretionary.
• Comelec abdicated its constitutional mandate to enforce election laws and decide questions affecting elections by surrendering control of technical aspects to Smartmatic under Article 3.3 of the automation contract, violating Section 26 of RA 8436.
• There is no legal framework to guide Comelec in appreciating automated ballots or conducting manual counts should the PCOS machines fail.
• Respondents cannot comply with Section 14 of RA 8436 regarding source code review, as the source code will be kept secret.
• Certifications submitted by Smartmatic showing successful use of machines abroad do not fulfill Section 12 of RA 8436 because they were issued to Dominion Voting Systems for the "Dominion Image Cast" (a ballot marking device) rather than for the PCOS system.
• Private respondents will be unable to provide telecommunications facilities ensuring 100% communications coverage during the elections.
• Subcontracting the manufacture of PCOS machines to Quisdi, a Shanghai-based company, violates Comelec's bidding rules against subcontracting significant components.

• The motions for reconsideration should be denied for advancing issues and theories not raised in the original petition and for arguing along speculative and conjectural lines.
• Chairman Melo's statements were taken out of context; he was referring to contingency plans for remote areas, not admitting inevitable failure of automation.
• Comelec retains exclusive supervision and control over the electoral process under Article 6.7 of the contract; Smartmatic is merely a service provider.
• Comelec intends to make the source code available for review under a controlled environment to protect intellectual property rights, and enjoys the presumption of good faith.
• The certifications sufficiently demonstrate that the PCOS technology was successfully used in Ontario, Canada and New York, USA, and Smartmatic is licensed by Dominion Voting Systems to use the system.
• Arguments regarding telecommunications facilities are speculative and premature, as a possible future breach does not justify nullification of the contract.
• Subcontracting is allowed under RA 9184 (Government Procurement Reform Act), and the alleged subcontract to Quisdi was unilateral by Smartmatic, not a ground to annul the Comelec contract award.

• Procedural Issues:
  • Whether new factual allegations and issues (regarding Dominion Image Cast vs. PCOS) may be raised for the first time in a motion for reconsideration.
  • Whether speculative and conjectural arguments constitute sufficient grounds to nullify a government contract.
• Substantive Issues:
  • Whether RA 8436, as amended by RA 9369, requires the AES to have been pilot-tested in the 2007 Philippine elections.
  • Whether Comelec abdicated its constitutional functions by contracting with Smartmatic for technical aspects of the automation.
  • Whether there exists a legal framework for manual appreciation of ballots in case of PCOS machine failure.
  • Whether Comelec can comply with the source code review requirement under Section 14 of RA 8436.
  • Whether the certifications submitted fulfill the requirement under Section 12 of RA 8436 regarding demonstrated capability in prior electoral exercises.
  • Whether the alleged inability to provide telecommunications facilities justifies nullification of the contract.
  • Whether subcontracting the manufacture of PCOS machines to Quisdi violates bidding rules.

• Procedural:
  • The Court held that new factual dimensions, such as the distinction between "Dominion Image Cast" and PCOS machines, cannot be entertained on motion for reconsideration as this violates basic considerations of fair play and the imperative of orderly justice against piecemeal presentation of evidence.
  • The Court ruled that speculations and conjectures about future events have little to no probative value and cannot serve as the basis for a sound judgment nullifying a contract.
• Substantive:
  • The Court reaffirmed that RA 8436, as amended, does not require pilot-testing in the 2007 Philippine elections; it is sufficient that the system's capability was demonstrated in electoral exercises in foreign jurisdictions such as Ontario, Canada and New York, USA.
  • The Court held that Comelec did not abdicate its constitutional mandate. Article 6.7 of the contract explicitly provides that the entire process of voting, counting, transmission, consolidation, and canvassing shall still be conducted by Comelec personnel, preserving its exclusive supervision and control.
  • The Court ruled that continuity and back-up plans are in place pursuant to Section 11 of RA 9369, and Comelec has sufficient latitude to devise methods to address contingencies without judicial interference.
  • The Court held that Comelec's manifestation of its intention to make the source code available under a controlled environment, combined with the presumption of good faith, defeats petitioners' speculative claim of non-compliance with Section 14 of RA 8436.
  • The Court found that the certifications were sufficient to establish the system's demonstrated capability, noting that Smartmatic is licensed by Dominion Voting Systems to use the technology in the Philippines.
  • The Court dismissed the telecommunications argument as speculative and premature, noting that a hypothetical future breach does not justify rescission or annulment of the contract.
  • The Court rejected the subcontracting argument as it was based on unverified news reports, and noted that RA 9184 allows subcontracting of portions of the project.

• Speculation and Conjecture as Basis for Relief — Speculations and conjectures about possible future events are not equivalent to proof and have little probative value; they cannot serve as the basis for a sound judgment or for nullifying a government contract.
• Dissenting Opinions Have No Binding Effect — A dissenting opinion is merely an expression of the individual view of a member of the Court disagreeing with the majority conclusion, and it has no binding legal effect.
• Presumption of Good Faith in Administrative Agencies — Administrative bodies such as the Comelec enjoy a presumption of good faith in the performance of their official duties, which can only be overcome by compelling proof to the contrary.
• Fair Play and Orderly Justice — Points of law, theories, issues, and arguments not raised in the original proceedings cannot be brought out for the first time on review or motion for reconsideration, as basic considerations of fair play and the imperative of orderly justice frown upon piecemeal presentation of evidence.
• Latitude of Administrative Discretion — The Comelec, as the constitutional body tasked to enforce election laws, must be afforded sufficient latitude in devising means and methods to accomplish its objectives, and courts should not stymie this initiative with preemptive restrictions.

• "Speculations and conjectures are not equivalent to proof; they have little, if any, probative value and, surely, cannot be the basis of a sound judgment."
• "The Court--or petitioners for that matter--must not, by any preemptive move or any excessive zeal, take away from Comelec the initiative that by law pertains to it."
• "It should not be stymied with restrictions that would perhaps be justified in the case of an organization of lesser responsibility."
• "As such, it is without binding effect, a dissenting opinion being a mere expression of the individual view of a member of the Court or other collegial adjudicating body, while disagreeing with the conclusion held by the majority."
• "Basic considerations of fair play impel this rule. The imperatives of orderly, if not speedy, justice frown on a piecemeal presentation of evidence and on the practice of parties of going to trial haphazardly."

• Loong v. Comelec — Cited by petitioners regarding the impossibility of manual appreciation in automated elections; the Court noted this was a dissenting opinion and thus without binding effect.
• Sumulong v. Comelec — Cited for the principle that the Comelec must be afforded enough latitude in devising means and methods to accomplish its objectives.
• Leyaley v. Comelec — Cited for the same principle regarding the latitude afforded to the Comelec in administering election laws.
• Coca-Cola Bottlers, Inc. Sales Force Union-PTGWO-Balais v. Coca-Cola Bottlers Philippines, Inc. — Cited for the rule that dissenting opinions are without binding effect.
• National Union of Workers in Hotels, Restaurants and Allied Industries v. NLRC — Cited for the same rule regarding the non-binding nature of dissenting opinions.
• Jacot v. Dal — Cited for the rule against piecemeal presentation of evidence and raising new issues on review.
• Villanueva v. Court of Appeals — Cited for the rule that points of law and arguments not raised in original proceedings cannot be brought out on review.

• Article IX-C, Section 2 of the Constitution — Defines the Comelec's constitutional mandate to enforce and administer election laws and to decide all questions affecting elections.
• Republic Act No. 8436 (Election Modernization Act), Section 2 — Defines "source code" as human readable instructions that define what computer equipment will do.
• Republic Act No. 8436, Section 12 — Requires that the system procured must have demonstrated capability and been successfully used in prior electoral exercises.
• Republic Act No. 8436, Section 14 — Mandates that the Comelec make the source code available and open to interested political parties for review.
• Republic Act No. 8436, Section 26 — Provides that the automated election system shall be under the exclusive supervision and control of the Comelec.
• Republic Act No. 9369, Section 11 — Mandates the inclusion of a continuity plan in case of systems breakdown, with activation in the presence of political party representatives.
• Republic Act No. 9369, Section 12 — Amends Section 12 of RA 8436 to clarify that participation in the 2007 pilot exercise is not conclusive of fitness, and foreign use is sufficient.
• Republic Act No. 9184 (Government Procurement Reform Act) — Cited regarding the permissibility of subcontracting portions of the project.

• Carpio, J. — Reiterated his dissent from the September 10, 2009 Decision.
• Carpio Morales, J. — Maintained concurrence with the dissent.