election law digests compilation
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Chavez vs. COMELEC , GR 162777, Aug 31, 2004
FACTS: Petitioner seeks to enjoin the Commission on Elections (COMELEC) from enforcing
Section 32 of its Resolution No. 6520. He claims that said section in the nature of an ex post
facto law. He urges this Court to believe that the assailed provision makes an individual
criminally liable for an election offense for not removing such advertisement, even if at the
time the said advertisement was exhibited, the same was clearly legal.
ISSUE: Is Sec. 32 of COMELEC Res. No. 6520 in the nature of an ex post facto law?
HELD: NO. Section 32, although not penal in nature, defines an offense and prescribes a
penalty for said offense. Laws of this nature must operate prospectively, except when they
are favorable to the accused. It should be noted, however, that the offense defined in the
assailed provision is not the putting up of "propaganda materials such as posters,
streamers, stickers or paintings on walls and other materials showing the picture, image or
name of a person, and all advertisements on print, in radio or on television showing the
image or mentioning the name of a person, who subsequent to the placement or display
thereof becomes a candidate for public office." Nor does it prohibit or consider an offense
the entering of contracts for such propaganda materials by an individual who subsequently
becomes a candidate for public office. One definitely does not commit an offense by
entering into a contract with private parties to use his name and image to endorse certain
products prior to his becoming a candidate for public office. The offense, as expressly
prescribed in the assailed provision, is the non-removal of the described propaganda
materials three (3) days after the effectivity of COMELEC Resolution No. 6520. If the
candidate for public office fails to remove such propaganda materials after the given
period, he shall be liable under Section 80 of the Omnibus Election Code for premature
campaigning. Indeed, nowhere is it indicated in the assailed provision that it shall operate
retroactively. There is, therefore, no ex post facto law in this case.
Penera vs. Commission on Elections, et al.
G.R. No. 181613
25 November 2009
(motion for reconsideration)
Facts:
On 11 September 2009, the Supreme Court affirmed the COMELEC’s decision to
disqualify petitioner Rosalinda Penera (Penera) as mayoralty candidate in Sta. Monica,
Surigao del Norte, for engaging in election campaign outside the campaign period, in
violation of Section 80 of Batas Pambansa Blg. 881 (the Omnibus Election Code).
Penera moved for reconsideration, arguing that she was not yet a candidate at the time of
the supposed premature campaigning, since under Section 15 of Republic Act No. 8436 (the
law authorizing the COMELEC to use an automated election system for the process of
voting, counting of votes, and canvassing/consolidating the results of the national and local
elections), as amended by Republic Act No. 9369, one is not officially a candidate until the
start of the campaign period.
Issue:
Whether or not Penera’s disqualification for engaging in premature campaigning should be
reconsidered.
Holding:
Granting Penera’s motion for reconsideration, the Supreme Court En Banc held that
Penera did not engage in premature campaigning and should, thus, not be disqualified as a
mayoralty candidate. The Court said –
(A) The Court’s 11 September 2009 Decision (or “the assailed Decision”) considered a
person who files a certificate of candidacy already a “candidate” even before the start of the
campaign period. This is contrary to the clear intent and letter of Section 15 of Republic Act
8436, as amended, which states that a person who files his certificate of candidacy will only
be considered a candidate at the start of the campaign period, and unlawful acts or
omissions applicable to a candidate shall take effect only upon the start of such campaign
period.
Thus, applying said law:
(1) The effective date when partisan political acts become unlawful as to a
candidate is when the campaign period starts. Before the start of the campaign
period, the same partisan political acts are lawful.
(2) Accordingly, a candidate is liable for an election offense only for
acts done during the campaign period, not before. In other words, election
offenses can be committed by a candidate only upon the start of the campaign
period. Before the start of the campaign period, such election offenses cannot be
so committed. Since the law is clear, the Court has no recourse but to apply it. The forum
for examining the wisdom of the law, and enacting remedial measures, is not the Court but
the Legislature.
(B) Contrary to the assailed Decision, Section 15 of R.A. 8436, as amended, does not
provide that partisan political acts done by a candidate before the campaign period are
unlawful, but may be prosecuted only upon the start of the campaign period. Neither does
the law state that partisan political acts done by a candidate before the campaign period
are temporarily lawful, but becomes unlawful upon the start of the campaign period.
Besides, such a law as envisioned in the Decision, which defines a criminal act and curtails
freedom of expression and speech, would be void for vagueness.
(C) That Section 15 of R.A. 8436 does not expressly state that campaigning before the start
of the campaign period is lawful, as the assailed Decision asserted, is of no moment. It is a
basic principle of law that any act is lawful unless expressly declared unlawful by law. The
mere fact that the law does not declare an act unlawful ipso facto means that the act is
lawful. Thus, there is no need for Congress to declare in Section 15 of R.A. 8436 that
partisan political activities before the start of the campaign period are lawful. It is sufficient
for Congress to state that “any unlawful act or omission applicable to a candidate shall take
effect only upon the start of the campaign period.” The only inescapable and logical result is
that the same acts, if done before the start of the campaign period, are lawful.
(D) The Court’s 11 September 2009 Decision also reversed Lanot vs. COMELEC (G.R.
No. 164858; 16 November 2006). Lanot was decided on the ground that one who files a
certificate of candidacy is not a candidate until the start of the campaign period. This
ground was based on the deliberations of the legislators who explained that the early
deadline for filing certificates of candidacy under R.A. 8436 was set only to afford time to
prepare the machine-readable ballots, and they intended to preserve the existing election
periods, such that one who files his certificate of candidacy to meet the early deadline will
still not be considered as a candidate.
When Congress amended R.A. 8436, Congress decided to expressly incorporate the
Lanot doctrine into law, thus, the provision in Section 15 of R.A. 8436 that a person who
files his certificate of candidacy shall be considered a candidate only at the start of the
campaign period. Congress wanted to insure that no person filing a certificate of candidacy
under the early deadline required by the automated election system would be disqualified
or penalized for any partisan political act done before the start of the campaign period. This
provision cannot be annulled by the Court except on the sole ground of its
unconstitutionality.
The assailed Decision, however, did not claim that this provision is unconstitutional. In fact,
the assailed Decision considered the entire Section 15 good law. Thus, the Decision was
self-contradictory — reversing Lanot but maintaining the constitutionality of the said
provision.
Social Weather Stations v. COMELECG . R . N o . 1 4 7 5 7 1 M a y 5 , 2 0 0 1 FACTS: On the one hand, Social Weather Stations (SWS) is an institution conducting surveys in various fields. Kamahalan Publishing Corp., on the other hand, publishes the
Manila Standard which is a newspaper of general circulation and features items of information including election surveys. Both SWS and Kamahalan are contesting the validity and enforcement of R.A. 9006 (Fair Election Act), especially section 5.4which provides that surveys affecting national candidates shall not be published 15d a y s b e f o r e a n e l e c t i o n a n d s u r v e y s a f f e c t i n g l o c a l c a n d i d a t e s s h a l l n o t b e published 7 days before the election. SWS wanted to conduct an election survey throughout the period of the elections both at the national and local levels and release to the media the results of such survey as well as publish them directly. Kamahalan, for its part, intends to publish election survey results up to the last day of the elections on May 14, 2001. ISSUE: Whether or not the restriction on the publication of election survey constitutes prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint RULING/RATIO: Y e s , S e c t i o n 5 . 4 o f R . A . 9 0 0 6 c o n s t i t u t e s a n u n c o n s t i t u t i o n a l a b r i d g e me n t o f freedom of speech, expression, and the press. T h e p o w e r o f t h e C O M E L E C o v e r m e d i a f r a n c h i s e s i s l i m i t e d t o e ns u r i n g e q u a l opportunity, time, space, and the right to reply, as well as to fix reasonable rates of c h a r g e f o r t h e u s e o f m e d i a f a c i l i t i e s f o r p u b l i c i n f o r m a t i o n a n d f o r m s a m o n g candidates .Here, the prohibition of speech is direct, absolute, and substantial. Nor does thiss e c t i o n p a s s t h e O ’ b r i e n t t e s t f o r c o n t e n t r e l a t e d r e g u l a t i o n b e c a u s e ( 1 ) i t suppresses one type of expression while allowing other types such as editorials,etc.; and (2) the restriction is greater than what is needed to protect governmenti n t e r e s t b e c a u s e t h e i n t e r e s t c a n e p r o t e c t e d b y n a r r o w e r r es t r i c t i o n s s u c h a s subsequent punishment. Note: Justice Kapunan’s dissenting opinion basically says that the test of clear and present danger is inappropriate to use in order to test the validity of this section. Instead, he purports to engage in a form of balancing by weighing and balancing the circumstances to determine whether public interest is served by the regulation of the free enjoyment of the rights. However, he failed to show why, on the balance, the other considerations (for example, prevention of last minute pressure on voters) should outweigh the value of freedom of expression.
1-UNITED TRANSPORT KOALISYON (1-UTAK), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
G.R. No. 206020, April 14, 2015
PONENTE: Reyes
TOPIC: Election law, prior restraint of free speech, posting of campaign materials on PUV
and public terminals, captive-audience doctrine
DOCTRINE:
The right to participate in electoral processes is a basic and fundamental right in any
democracy. It includes not only the right to vote, but also the right to urge others to vote for
a particular candidate. The right to express one’s preference for a candidate is likewise part
of the fundamental right to free speech. Thus, any governmental restriction on the right to
convince others to vote for a candidate carries with it a heavy presumption of invalidity.
FACTS:
On January 15, 2013, the COMELEC promulgated Resolution No. 9615, which provided for
the rules implementing R.A. No. 9006 in connection with the May 13, 2013 national and local
elections and subsequent elections. Section 7 thereof, which enumerates the prohibited
forms of election propaganda, pertinently provides:
SEC. 7. Prohibited Forms of Election Propaganda. – During the campaign period, it is
unlawful:
x x x x
(f) To post, display or exhibit any election campaign or propaganda material outside of
authorized common poster areas, in public places, or in private properties without the
consent of the owner thereof.
(g) Public places referred to in the previous subsection (f) include any of the following:
x x x x
5. Public utility vehicles such as buses, jeepneys, trains, taxi cabs, ferries, pedicabs and
tricycles, whether motorized or not;
6. Within the premises of public transport terminals, such as bus terminals, airports,
seaports, docks, piers, train stations, and the like.
The violation of items [5 and 6] under subsection (g) shall be a cause for the revocation of
the public utility franchise and will make the owner and/or operator of the transportation
service and/or terminal liable for an election offense under Section 9 of Republic Act No.
9006 as implemented by Section 18 (n) of these Rules.
Petitioner sought for clarification from COMELEC as regards the application of REsolution
No. 9615 particularly Section 7(g) items (5) and (6), in relation to Section 7(f), vis-à-vis
privately owned public utility vehicles (PUVs) and transport terminals. The petitioner then
requested the COMELEC to reconsider the implementation of the assailed provisions and
allow private owners of PUVs and transport terminals to post election campaign materials
on their vehicles and transport terminals.
The COMELEC en banc issued Minute Resolution No. 13-0214, which denied the petitioner’s
request to reconsider the implementation of Section 7(g) items (5) and (6), in relation to
Section 7(f), of Resolution No. 9615.
ISSUE:
Whether or not Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution
No. 9615 are constitutional.
HELD:
The Supreme Court held that the said provisions of Resolution No. 9615 are null and void for
being repugnant to Sections 1 and 4, Article III of the 1987 Constitution.
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 are
prior restraints on speech
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615
unduly infringe on the fundamental right of the people to freedom of speech. Central to the
prohibition is the freedom of individuals, i.e., the owners of PUVs and private transport
terminals, to express their preference, through the posting of election campaign material in
their property, and convince others to agree with them.
Pursuant to the assailed provisions of Resolution No. 9615, posting an election campaign
material during an election period in PUVs and transport terminals carries with it the penalty
of revocation of the public utility franchise and shall make the owner thereof liable for an
election offense.
The prohibition constitutes a clear prior restraint on the right to free expression of
the owners of PUVs and transport terminals. As a result of the prohibition, owners of
PUVs and transport terminals are forcefully and effectively inhibited from expressing
their preferences under the pain of indictment for an election offense and the
revocation of their franchise or permit to operate.
The assailed prohibition on posting election campaign materials is an invalid content-
neutral regulation repugnant to the free speech clause.
A content-neutral regulation, i.e., which is merely concerned with the incidents of
the speech, or one that merely controls the time, place or manner, and under well-defined
standards, is constitutionally permissible, even if it restricts the right to free speech,
provided that the following requisites concur:
1. The government regulation is within the constitutional power of the Government;
2. It furthers an important or substantial governmental interest;
3. The governmental interest is unrelated to the suppression of free expression; and
4. The incidental restriction on freedom of expression is no greater than is essential to the
furtherance of that interest.
Section 7(g) items (5) and (6) of Resolution No. 9615 are content-neutral regulations
since they merely control the place where election campaign materials may be
posted. However, the prohibition is still repugnant to the free speech clause as it fails to
satisfy all of the requisites for a valid content-neutral regulation.
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615, are
not within the constitutionally delegated power of the COMELEC under Section 4,
Article IX-C of the Constitution. Also, there is absolutely no necessity to restrict the right
to free speech of the owners of PUVs and transport terminals.
The COMELEC may only regulate the franchise or permit to operate and not the
ownership per se of PUVs and transport terminals.
In the instant case, the Court further delineates the constitutional grant of supervisory and
regulatory powers to the COMELEC during an election period. As worded, Section 4, Article
IX-C of the Constitution only grants COMELEC supervisory and regulatory powers over the
enjoyment or utilization “of all franchises or permits for the operation,” inter alia, of
transportation and other public utilities. The COMELEC’s constitutionally delegated powers
of supervision and regulation do not extend to the ownership per se of PUVs and transport
terminals, but only to the franchise or permit to operate the same.
Section 7(g) items (5) and (6) of Resolution No. 9615 are not within the
constitutionally delegated power of the COMELEC to supervise or regulate the
franchise or permit to operate of transportation utilities. The posting of election
campaign material on vehicles used for public transport or on transport terminals is not only
a form of political expression, but also an act of ownership – it has nothing to do with the
franchise or permit to operate the PUV or transport terminal.
Section 7(g) items (5) and (6) of Resolution No. 9615 are not justified under the
captive-audience doctrine.
The captive-audience doctrine states that when a listener cannot, as a practical matter,
escape from intrusive speech, the speech can be restricted. The “captive-audience”
doctrine recognizes that a listener has a right not to be exposed to an unwanted
message in circumstances in which the communication cannot be avoided.
A regulation based on the captive-audience doctrine is in the guise of censorship, which
undertakes selectively to shield the public from some kinds of speech on the ground that
they are more offensive than others. Such selective restrictions have been upheld only when
the speaker intrudes on the privacy of the home or the degree of captivity makes it either
impossible or impractical for the unwilling viewer or auditor to avoid exposure.
Thus, a government regulation based on the captive-audience doctrine may not be justified
if the supposed “captive audience” may avoid exposure to the otherwise intrusive
speech. The prohibition under Section 7(g) items (5) and (6) of Resolution No. 9615 is
not justified under the captive-audience doctrine; the commuters are not forced or
compelled to read the election campaign materials posted on PUVs and transport
terminals. Nor are they incapable of declining to receive the messages contained in the
posted election campaign materials since they may simply avert their eyes if they find the
same unbearably intrusive.
Lehman’s case not applicable
The COMELEC, in insisting that it has the right to restrict the posting of election campaign
materials on PUVs and transport terminals, cites Lehman v. City of Shaker Heights, a case
decided by the U.S. Supreme Court. In Lehman, a policy of the city government, which
prohibits political advertisements on government-run buses, was upheld by the U.S.
Supreme Court. The U.S. Supreme Court held that the advertising space on the buses was
not a public forum, pointing out that advertisement space on government-run buses,
“although incidental to the provision of public transportation, is a part of commercial
venture.” In the same way that other commercial ventures need not accept every proffer of
advertising from the general public, the city’s transit system has the discretion on the type
of advertising that may be displayed on its vehicles.
In Lehman, the political advertisement was intended for PUVs owned by the city
government; the city government, as owner of the buses, had the right to decide which type
of advertisements would be placed on its buses.
Lehman actually upholds the freedom of the owner of the utility vehicles, i.e., the city
government, in choosing the types of advertisements that would be placed on its
properties. In stark contrast, Section 7(g) items (5) and (6) of Resolution No. 9615 curtail
the choice of the owners of PUVs and transport terminals on the advertisements that may be
posted on their properties.
Also, the city government in Lehman had the right, nay the duty, to refuse political
advertisements on their buses. Considering that what were involved were facilities owned
by the city government, impartiality, or the appearance thereof, was a necessity. In the
instant case, the ownership of PUVs and transport terminals remains private; there exists no
valid reason to suppress their political views by proscribing the posting of election campaign
materials on their properties.
Prohibiting owners of PUVs and transport terminals from posting election campaign
materials violates the equal protection clause.
Section 7(g) items (5) and (6) of Resolution No. 9615 do not only run afoul of the free speech
clause, but also of the equal protection clause. One of the basic principles on which this
government was founded is that of the equality of right, which is embodied in Section 1,
Article III of the 1987 Constitution.
It is conceded that the classification under Section 7(g) items (5) and (6) of Resolution No.
9615 is not limited to existing conditions and applies equally to the members of the
purported class. However, the classification remains constitutionally impermissible since it
is not based on substantial distinction and is not germane to the purpose of the law. A
distinction exists between PUVs and transport terminals and private vehicles and
other properties in that the former, to be considered as such, needs to secure from the
government either a franchise or a permit to operate. Nevertheless, as pointed out
earlier, the prohibition imposed under Section 7(g) items (5) and (6) of Resolution No.
9615 regulates the ownership per se of the PUV and transport terminals; the
prohibition does not in any manner affect the franchise or permit to operate of the
PUV and transport terminals.
As regards ownership, there is no substantial distinction between owners of PUVs and
transport terminals and owners of private vehicles and other properties. As already
explained, the ownership of PUVs and transport terminals, though made available for use by
the public, remains private. If owners of private vehicles and other properties are
allowed to express their political ideas and opinion by posting election campaign
materials on their properties, there is no cogent reason to deny the same preferred
right to owners of PUVs and transport terminals. In terms of ownership, the
distinction between owners of PUVs and transport terminals and owners of private
vehicles and properties is merely superficial. Superficial differences do not make for
a valid classification.
The fact that PUVs and transport terminals are made available for use by the public is
likewise not substantial justification to set them apart from private vehicles and other
properties. Admittedly, any election campaign material that would be posted on PUVs and
transport terminals would be seen by many people. However, election campaign materials
posted on private vehicles and other places frequented by the public, e.g.,commercial
establishments, would also be seen by many people. Thus, there is no reason to single out
owners of PUVs and transport terminals in the prohibition against posting of election
campaign materials.
Summary
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 violate the
free speech clause; they are content-neutral regulations, which are not within the
constitutional power of the COMELEC issue and are not necessary to further the objective of
ensuring equal time, space and opportunity to the candidates. They are not only repugnant
to the free speech clause, but are also violative of the equal protection clause, as there is no
substantial distinction between owners of PUV s and transport terminals and owners of
private vehicles and other properties.
On a final note, it bears stressing that the freedom to advertise one’s political candidacy is
clearly a significant part of our freedom of expression. A restriction on this freedom without
rhyme or reason is a violation of the most valuable feature of the democratic way of life.
Veterans Federation Party vs. COMELEC
Petition: certiorari, prohibition and mandamus with prayers for issuance of temporary
restraining order and preliminary injunction
Petitioner: Parties who passed the 2 % rule
Respondent: COMELEC, Group of 38
Ponente: PANGANIBAN, J.
Date:
Introduction:
Party-list method of representation o Unique to 1987 Constitution (Sec. 5, Art VI) o Basically, it allows national, regional or sectoral parties registered with the
COMELEC to participate in election of party-list representatives to Congress Voters get 2 votes: one for district Congressman and another for a
party-list representative o Why is there a need for a party-list method of representation?
To give Filipinos belonging to marginalized and unrepresented parties a chance to become House of Representatives (HoR) members
To have a full, free and open party system to attain the broadest possible representation of party interests in HoR
Congress has the Constitutional duty to determine the selection/election of party-list representatives, so it enacted RA 7941
RA 7941 o Prescribes requirements for entitlement to a party-list seat; these can be
summarized into 4 parameters 1. 20 % allocation (also prescribed by the Constitution in Sec. 5, Art VI)
a. combined number of all party-list congressmen shall not exceed 20 % of total HoR membership (including party-list members)
2. 2 % threshold a. to be qualified in the HoR, parties must garner a minimum of 2
% of the total valid votes 3. 3-seat limit
a. each qualified party is entitled to a max of 3 seats: one qualifying seat and 2 additional seats, REGARDLESS of the number of obtained votes
4. proportional representation a. the additional seats (previously mentioned) shall be computed
in proportion to their total votes
Facts:
events center on May 11, 1998 elections o 1st election for party-list representation o held simultaneously with national elections
COMELEC proclaimed 14 party-list members based on the enumerated parameters (take note specially that they passed the 2 % test)
6 July 1998: The start of the problem o People’s Alliance for Peace and Good Government (PAG-ASA) filed with
COMELEC a petition to proclaim the FULL-NUMBER of party-list representatives. They argued that:
Constitution says party-list reps shall constitute 20 % of total HoR reps, which in this case is 52 out of the 208 seats. This 20 % is MANDATORY. In other words, the 52 seats should be filled
Literal application of the 2 % threshold and 3-seat limit in the results would only yield 25 winners. The 52 seats can’t be filled in this scenario.
Therefore, the 2 % rule and 3-seat limit contravene the 20 % allocation of the Constitution
9 other party-list organizations filed Motion for Intervention, seeking the same relief In response to this, COMELEC 2nd Div. granted the petitions through a Resolution
on Oct. 15, 1998 (this is the first resolution being assailed in the present case) o Basically, COMELEC ordered the proclamation of 38 respondents (Group of
38) who DID NOT pass the 2 % rule in order to fill the 52 slots o In doing this, they:
Acknowledged mandatory nature of 20 % allocation Disregarded the 2 % rule Followed their own system on how to fill the 52 seats and ignored
Congress’ RA 7941 o June 25 1996 Resolution No. 2847
“Rules and Regulations Governing the Election of Party-List Representatives Through the Party-List System”
prescribes that 1 additional seat shall be given to parties for every 2 % votes (ex. 6 % = 1 qualifying seat + 2 additional seats)
Inconsistent with the Oct. 15 1998 Resolution They applied Resolution 2847 in proclaiming the 14 qualified party-
list reps but when they proclaimed the 38 winners in the Oct. 15 1998 Resolution, they abandoned Resolution 2847
Naturally, the parties entitled to the first 14 seats objected to the proclamation of the Group of 38. They filed separate Motions for Reconsideration, arguing that:
o 2 % rule was not followed o The 2 maximum additional seats should be given to parties who actually
passed the 2 % rule
In response, COMELEC issued a Resolution on Jan. 7, 1999 (the second resolution being assailed in this case)
o They addressed the issue of who should get the remaining 38 seats: the parties who satisfied the 2 % rule or the Group of 38 who didn’t
o COMELEC ruled against the parties which satisfied the 2 % rule because: Allocating 38 seats to them would concentrate representation of party
interests in the HoR with the interests of the qualified parties 2 % rule prevents full, free and open party system and limits party
representation in HoR Hence, there were several petitions assailing the two Resolutions filed before SC. SC issued Status Quo order, preventing COMELEC from proclaiming winners based
on the Resolutions being assailed SC consolidated the petitions and revised the issues as follows:
Issues:
1. Is the 20 % allocation for party-list representatives in Sec 5(2) Art. VI of Constitution mandatory or a mere ceiling?
2. Are the 2 % threshold and 3-sear limit provided in Sec 11(b) of RA 7941 constitutional?
3. If yes (to 2), who should additional seats of a qualified party be determined?
Ruling:
1. 20 % allocations is NOT MANDATORY, but a mere ceiling 2. YES. They are Constitutional 3. See Ratio
Ratio Decidendi:
1. FIRST ISSUE:
Petitioners: o 20 % allocation is merely a ceiling o How 20 % is filled is the duty of Congress (NOT THE COMELEC), which it did
by virtue of RA 7941 o If there is no sufficient number of parties that can satisfy the 2 % threshold,
the 20 % allocation cannot be filled This failure to fill the 20 % isn’t the COMELEC’s fault; voters
themselves determine who and how many should represent them Respondents:
o 20 % allocation is mandatory o 2 % requirement is unconstitutional because it makes it impossible to fulfill
the constitutionally mandated 20 % allocation
SC o Sec. 5, Art. VI conveys that Congress has the power to define/prescribe
mechanics of the party-list system of representation It is not the SC or COMELEC’s task to find fault in the wisdom of
Congress’ decision What COMELEC should have done (which the SC will now do) was to
devise a mathematical formula that can be implemented within the context of the actual election process
o Analysis of statutory requirements of RA 7941 shows that the 20 % allocation is not mandatory, but merely a ceiling (maximum) for party-list seats in Congress
2. SECOND ISSUE
2 % threshold o ensures that only those parties having a sufficient number of constituents
deserving of representation are actually represented in Congress o otherwise, parties incapable of contributing significant legislation may pose a
threat to the stability of Congress 3-seat limit
o ensures entry of various interest-representations into the legislature o no single group, no matter how large the membership, would dominate
party-list seats, if not the entire HoR
3. THIRD ISSUE. On the method of allocating seats
Major problem o How to distribute additional seats proportionally considering there is a 3-
seat limit Some proposed solutions:
1. 1 additional seat per 2 % increment a. involves allocating an additional seat for every additional seat for
every additional 2 % of votes i. Ex. 6 % = 1 qualifying seat + 2 additional seats
b. advantage: simple, easy to comprehend c. disadvantage: proportional representation would be contravened
when parties get lopsided votes i. Ex. Party A: 20 % = 10 seats, Party B: 6 % = 3 seats; BUT, since
there is a 3-seat limit, each would get 3 seats, unfair for A 2. Niemeyer Formula (adopted from Germany)
a. Number of additional seats:
(remaining seats to be allocated)x(total votes of party)
(total votes of all qualified parties)
b. Problem: same with previous proposal c. Can’t be applied in Philippines because of our 3-seat limit and non-
mandatory character of allocation; works for Germany because their system, though similar, is different and more suited for this method
So, we apply a unique formula fitting for our unique party-list system:
STEP 1.
1. Rank participating parties from highest to lowest based on received votes 2. Compute ratio for each party (party votes/total votes) x 100 % 3. All parties with at least 2 % votes are guaranteed one qualifying seat each
STEP 2.
Determine number of additional seats of first party (party with highest ratio; from hereon FP) is entitled to
o Required to determine number of seats of other parties (which can’t exceed number of seats of first party)
o Proportion of votes of first party relative to total votes for party-list system
votes of FP
total votes for party- list system
o Note: don’t round off Can result to violation of 20 % allocation Fractional membership can’t be converted to whole membership; it
would deprive another party’s fractional membership Violate proportional allocation; no party can claim more than it is
entitled to Rules:
o FP votes ≥ 6 % FP gets 2 additional seats
o 4 %≤FP votes < 6 FP gets 1 additional seat
o FP votes < 4 % FP gets no additional seat
o These rules prevent allotment of more than the total number of seats o Ex. in this case: FP = APEC = 5.5 %, so it has 1 additional seat for a total of 2
STEP 3: Determine additional seats for other parties (formula below)
votes of party
votes of FPx number of addtl seats alloted to FP
Note: from result, only get integer (Ex. if 2.3, it’s just 2; sort of like greatest integer function)
Observation: if FP gets 0 additional seats, all other parties automatically get 0 additional seats
A more absolute proportional representation is restricted by 3-seat limitation o Increasing max number of additional seats would increase accuracy of
proportional representation, but that is a matter within jurisdiction of Congress
DISSENT (Mendoza): formula is too strict o SC: formula merely works within parameters defined by law; only Congress
can modify parameters to make them less strict
LAST POINTS:
COMELEC committed grave abuse of discretion o Violated 20% threshold and proportional representation requirement of RA
7941 o Arrogated upon itself powers of legislature when it disregarded RA 7941 and
defined its own mechanics for enforcement of the system Wisdom and propriety of RA 7941 do not present any clear violation of Constitution
or grave abuse of discretion o Respondents failed to show otherwise. Hence, SC cannot exercise judicial
review COMELEC CANNOT disregard an act of Congress
o It can only draft an amendment to the law and lobby for its approval/enactment by legislature
Petitioners can’t each be granted additional seats remaining. This would violate principle of proportional representation as they would get a total of 3 seats each.
Low turnout of party-list votes o Not indicative of total failure of law in fulfilling the object of this new system
of representation o Party-list system is a new concept and needs time to incorporate itself into
our country
Dispostion: Petitions partially granted. Assailed COMELEC Resolutions set aside and
nullified. Proclamations of 14 party-list representatives confirmed.
Opinions:
Dissenting: Mendoza, J. o Basically agrees that it is the duty of Congress to determine how the party-
list system will be implemented As seen in Constitutional Commission’s records, drafters of the
Constitution only wanted to establish the principle of the party-list system with sectoral representation
Under Sec. 5 Art. VI of the 1987 Constitution, Congress was mandated to determine the details of implementing the party-list system, which it did when it enacted RA 7941
o Main disagreement: On the computation of the number of seats to which qualified parties
are entitled to Stand: give each party the maximum 3 seats allowed by law; hence,
adding 25 more seats and bringing the total to 39 party-list representatives
o RA 7941’s proportional representation is based on Niemeyer’s formula because party-list representation of Philippines was largely patterned after mixed party list in Germany
Therefore, Niemeyer formula was ADOPTED in RA 7941 So, incorporating Niemeyer formula in Sec. 11 of RA 7941, the
distribution process of the party-list system has 4 steps
STEP 1 and 2: Basically the same as STEP 1 in majority’s formula
STEP 3: apply Niemeyer formula
a) Apply Niemer formula (refer to previous pages) and assign additional seats to corresponding parties
b) Seats remaining after distribution of guaranteed additional seats are distributed to parties in descending order of the DECIMAL of products obtained in (a)
STEP 4.
To conform to 3-seat rule o Those with a total of 3 seats or more are allotted ultimately 3 seats
o In the case at bar, since all parties have a total of at least 3, then they ultimately get 3 seats each (this leaves 13 HoR party-list seats vacant)
Summary of conclusions from calculation:
Proclamation of COMELEC of 13 parties who satisfied 2 % rule should be affirmed All parties should have a total of 3 seats each (as previously explained) Decision of COMELEC allocating seats to the Group of 38 is set aside because they
didn't satisfy 2 % rule 13 seats are left vacant
o shows that Mendoza agreed that 20 % allocation is not mandatory
Last important points of dissent:
Majority’s contention that Niemayer formula cannot be applied in Philippines has led them to allocate seats to winning groups in a manner NOT JUSTIFIABLE in terms of Sec. 11 RA 7941. They therefore engaged in a bit of JUDICIAL LEGISLATION
o Basically, Mendoza thinks they gave too much priority to the First Party and prejudiced the other qualifying parties. Here are some examples:
FP has separate rules and formulas not applicable to other qualifying parties; therefore the formulas are incapable of consistency and general application. RA 7941 refers equally to all parties satisfying 2 % rule but the majority discriminates between FP and other parties
RA 7941 says that additional seats must be in proportion to ALL the parties’ total votes, BUT majority’s formula makes additional seats of other parties DEPENDENT on FP’s additional seats
Formula of majority makes it extremely difficult to obtain the 20 % ceiling
Although 20 % allocation isn’t required, there is still a goal of filling it to open the system to party-list reps
Scheme of majority prevents parties other than FP from obtaining max. number of seats
There will NEVER be an instance where additional seats of other parties would be the max. of 2 because their votes are being proportioned against FP
Finale: There is no legal/logical basis for having a first party. There wasn’t even any mention of it in the proceedings of HoR, it was purely the creation of the majority
Mendoza votes to grant petitions and order the COMELEC to proclaim 25 other seats
Topic: Congress
Ang Bagong Bayani v. Comelec, 359 SCRA 699, June 26, 2001
Ponente: Panganiban, J.
Facts:
- Petitioners challenged a resolution issued by the COMELEC. Petitioners seeks the
disqualification of certain major political parties in the 2001 party-list elections arguing
that the party-list system was intended to benefit the marginalized and underrepresented
and not the mainstream political parties, the non-marginalized or overrepresented.
Issues: 1. WON recourse under Rule 65 is proper under the premises. More specifically, is there
no other plain, speedy or adequate remedy in the ordinary course of law?
2. WON political parties may participate in the party-list elections.
3. WON the party-list system is exclusive to 'marginalized and underrepresented'
sectors and organizations.
4. WON the COMELEC committed grave abuse of discretion in promulgating Omnibus
Resolution No. 3785.
Held #1:
- R: Petitioners recourse under Rule 65 is improper because Petitioners should have filed
first before Comelec a petition either for disqualification or for cancellation of registration
of the Respondents.
- SC: Petitioners attack validity of Comelec Omnibus Resolution 3785 for having been issued
with grave abuse of discretion, not the qualification or registration of Respondents, insofar
as it allowed respondents to participate in the party-list elections of 2001.
- Omnibus Resolution 3785 was promulgated by Comelec en banc so no motion for
reconsideration was possible but only recourse was through the SC.
- The case raised an issue of one purely of law, where public interest is involved, and in case
of urgency.
- The case raised transcendental constitutional issues on the party-list system.
Held #2:
- Yes. Political Parties may participate in the party-list elections.
- P: Objects to the participation of “major political parties.”
- R: Through SolGen, submits that the Constitution and RA No. 7941 allow political parties
to participate in the party-list system.
- SC: Sections 7 & 8, Article IX of the Constitution, political parties may be registered under
the party-list system.
- During the deliberations of the Constitutional Commission, Comm. Monsod pointed out
that the participants in the party-list system may include UNIDO (the dominant political
party of the post-Marcos era).
- Sec. 2 of RA 7941 provides for a “party-list system of registered, xxx, parties”, which Sec. 3
defined “party” as “either a political part or a sectoral party or a coalition of parties.”
Held #3:
- Yes. The party-list system is exclusive to 'marginalized and underrepresented' sectors and
organizations.
- RA 7941 was enacted following the provisions of Sec. 5, Art VI of the Constitution. Sec. 2,
RA 7941 laid out the states policy of promoting proportional representation enabling
Filipino citizens belonging to marginalized and underrepresented sectors to be elected
to the House of Representatives.
- Sec. 5, RA 7941 enumerates the marginalized and underrepresented sectors which
include labor, peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers, and professionals.
Not exclusive but demonstrates the clear intent of the law that not all sectors can be
represented under the party-list system.
- Additional: Concurrently, the persons nominated by the party-list must be “Filipino
citizens belonging to marginalized and underrepresented sectors, organizations and
parties”.
Held #4:
- Yes. Comelec committed grave abuse of discretion by violating or ignoring the Constitution
or the law.
Guidelines for Screening Party-List Participants
- First, the political party, sector, organization or coalition must represent the marginalized
and underrepresented groups identified in Sec. 5 of RA 7941.
- Second, party must show that they represent the interests of the marginalized and
underrepresented.
- Third, registration of a religious sect as a political party is prohibited. (under Sec. 5, Art. VI,
Consti)
- Fourth, party must not be disqualified under Sec. 6 of RA 7941.
- Fifth, party must not be an entity funded or assisted by the government.
- Sixth, party’s nominee must comply with the requirements of law under Sec. 9 of RA 7941.
o Natural-born Filipino Citizen
o Registered voter
o Resident of Philippines not less than 1 year prior to election
o Able to read and write
o Bona fide member of the party for at least 90 days before election
o At least 25 years old on the day of the election
o For the youth sector, must be at least 25 years but not more than 30 years old. If attains
30 years of age during term shall be allowed to finish term.
- Seventh, party’s nominee must belong to marginalized and underrepresented sector,
organization or party.
- Eight, party’s nominee must be able to contribute to the formulation and enactment of
legislation that will benefit the whole nation.
Dissent:
Vitug, J.
- No express provision of the Constitution or in the enabling law that disallows major
political parties from participating in the party-list system.
- The aim of the majority of the Constitutional Commissioners was to introduce the concept
of party-list representation which is limited to four groups (political parties, sectoral
parties, sectoral organizations and coalitions). It was not limited to sectoral parties only as
defined in Sec 5 Ra 7941.
Mendoza, J.
- Two proposals for additional representation in the HOR were submitted to the Committee
on Legislative Department, sectoral representation advocated by Comm. Villacorta and
party-list system Comm. Monsod.
- Party-list system was passed so it must not be sectoral representation that was meant by
the ConCom. Law was not limited to the marginalized and underrepresented sectors,
organizations and parties.
Decision: Case Remanded to Comelec to further determine the qualifications of the party-list
participants.
BANAT v. COMELEC
Dealino, J.
Facts:
House of Representatives, represented by Speaker Nograles filed a motion for leave to intervene in G.R. Nos. 179271 and 179295, for clarifying several issues.
Armi Jane Roa-Borje (Roa-Borje), a nominee of the Citizens’ Battle Against Corruption (CIBAC) filed a motion for leave for partial reconsideration-in-intervention.
Issues:
1) The number of legislative districts, seats allotted for party-list representatives, and the admission of the party-list representatives following the Court’s declaration.
2) Requirement of a minimum vote to qualify as party-list representative. 3) The status of the principle laid down in the Veterans case. 4) The Supreme Court’s ruling on the procedure for distribution of seats deprived
without due process and equal protection parties with more significant constituencies.
Decision: CLARIFIED
Ratio Decidendi:
1) On the number of legislative districts, seats allotted for party-list representatives, and the admission of the party-list representatives following the Court’s declaration:
a. Number of legislative districts: i. Section 5(1), Article VI, 1987 Constitution:
1. “The House of Representatives shall not be composed of not more than 250 members unless otherwise fixed by law.”
a. Constitution fixes the maximum number of members of the HOR, but expressly allows for an increase provided a law is enacted for the purpose.
b. Increase in the number of members, whether by piecemeal or general legislation.
ii. Only 200 legislative districts in 1987, 20 legislative districts added through piecemeal legislation by 2007. Navotas City became a separate district on June 24, 2007, more than a month after the May 14, 2007 elections. Therefore, only there were only 219 district representatives at the time of the 2007 elections.
b. Number of seats allotted for party-list representatives: i. Section 5(2), Article VI, 1987 Constitution:
1. “The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. x x x”; such increase in number of seats available is automatic.
2. Formula: ((Number of seats available to legislatives)/0.80)*0.20 = Number of seats available to party-list representatives
3. “[F]ormula allows for the corresponding increase in the number of seats available for party-list representatives whenever a legislative district is created by law”
c. Admission of the party-list representatives following the Court’s decision: 1. 54 available party-list seats, 18 guaranteed seats, multiplier of
36 should have been used. 2. Allocation of seats remains the same.
ii. COMELEC correctly deferred proclamation of BATAS and ALIF as they had cases pending before the COMELEC.
2) On the requirement of a minimum vote to qualify as party-list representative: i. 2% threshold for the first round of seat allocation does not violate any
provision of the 1987 Constitution; applying said threshold in the second round was struck down.
ii. Gaining a second seat depends on the circumstances of the election. 3) On the status of the doctrine in Veterans:
a. As early as 1995, total number of members of already exceeded the initial ceiling fixed by the 1987 Constitution, unnoticed as available party-list representative seats have never been filled-up before.
b. Filling-up of all available party-list seats is not mandatory, actual occupancy depends on number of participants in the party-list election, three-seat cap still applies. Ex.: If only 10 party-lists participate, only 30 seats will be occupied.
4) On the SC’s deprivation without due process and equal protection parties with more significant constituencies:
a. Roa-Borje: i. Section 5(1), Article VI, 1987 Constitution: “* * * elected from legislative
districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.”
ii. Absolute proportionality also applies to the allocation of party-list seats.
b. SC: i. Principle of proportional representation only applies to legislative
district-elections. ii. The distribution process used gave preference in the distribution of
seats in accordance with the higher percentage and rank without limiting the distribution to parties receiving two-percent of the votes.
iii. Section 5(1), Article VI, 1987 Constitution: “* * * as provided by law, shall be elected through a party-list system.” This gives the legislature discretion in formulating the allocation of party-list seats, as exemplified in Republic Act 7941.
iv. R.A. 7941: “* * * proportional representation x x x” mentioned in Sec. 2 was qualified in Sec. 11(b), mandating a three-seat cap, and the two-percent cutoff for those entitled to the guaranteed seats.
v. CIBAC’s fractional seat value was lower than the TUCP, which gives the TUCP a higher rank in the second step of the second round of seat allocation.
Notes
Law 121 (Constitutional Law 1):
Government; Congress; Composition: Sec. 5(1), Article VI, of the 1987 Constitution fixes the
maximum number of members of the HoR at 250, but expressly allows for an increase in the
number provided a law is enacted for this purpose, whether piecemeal or otherwise.
Same; Same; Same: An increase in the number of legislative districts automatically increases
the number of seats available for party-list representatives. Specifically, for every four (4)
additional legislative districts, Sec. 5(2), Article VI, of the 1987 Constitution mandates that
there shall be one party-list representative.
Same; Same; Party-List System: Filling-up of party-list seats is not mandatory, actual
occupancy depends on conditions such as the number of participants and the law governing
the party-list system.
Same; Same; Same: The 2% threshold for the first round of seat allocation is constitutional,
but applying it for the second round was struck down by the Court.
Same; Same; Same: The 1987 Constitution does not require absolute proportionality, it only
applies to those elected from legislative districts.
Same; Same; Powers: The Legislature enjoys discretion in the allocation of seats for its
members elected through the party-list system.
Same; Suffrage; Election Law: The COMELEC was correct in deferring the proclamation of
BATAS and ALIF as they had pending cases before the COMELEC, the decisions of which
might affect the final composition of party-list representatives.
Atong Paglaum v. COMELEC, G.R. No. 203766, 02 April 2013
This case partially abandoned the rulings in Ang Bagong Bayani vs COMELEC and BANAT vs
COMELEC.
Atong Paglaum, Inc. and 51 other parties were disqualified by the Commission on Elections
in the May 2013 party-list elections for various reasons but primarily for not being qualified
as representatives for marginalized or underrepresented sectors.
Atong Paglaum et al then filed a petition for certiorari against COMELEC alleging grave abuse
of discretion on the part of COMELEC in disqualifying them.
ISSUE: Whether or not the COMELEC committed grave abuse of discretion in disqualifying
the said party-lists.
HELD: No. The COMELEC merely followed the guidelines set in the cases of Ang Bagong
Bayani and BANAT. However, the Supreme Court remanded the cases back to the COMELEC
as the Supreme Court now provides for new guidelines which abandoned some principles
established in the two aforestated cases. The new guidelines are as follows:
I. Parameters. In qualifying party-lists, the COMELEC must use the following parameters:
1. Three different groups may participate in the party-list system: (1) national parties or
organizations, (2) regional parties or organizations, and (3) sectoral parties or
organizations.
2. National parties or organizations and regional parties or organizations do not need to
organize along sectoral lines and do not need to represent any “marginalized and
underrepresented” sector.
3. Political parties can participate in party-list elections provided they register under the
party-list system and do not field candidates in legislative district elections. A political party,
whether major or not, that fields candidates in legislative district elections can participate in
party-list elections only through its sectoral wing that can separately register under the
party-list system. The sectoral wing is by itself an independent sectoral party, and is linked
to a political party through a coalition.
4. Sectoral parties or organizations may either be “marginalized and underrepresented” or
lacking in “well-defined political constituencies.” It is enough that their principal advocacy
pertains to the special interest and concerns of their sector. The sectors that are
“marginalized and underrepresented” include labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, handicapped, veterans, and overseas workers. The sectors
that lack “well-defined political constituencies” include professionals, the elderly, women,
and the youth.
5. A majority of the members of sectoral parties or organizations that represent the
“marginalized and underrepresented” must belong to the “marginalized and
underrepresented” sector they represent. Similarly, a majority of the members of sectoral
parties or organizations that lack “well-defined political constituencies” must belong to the
sector they represent. The nominees of sectoral parties or organizations that represent the
“marginalized and underrepresented,” or that represent those who lack “well-defined
political constituencies,” either must belong to their respective sectors, or must have a track
record of advocacy for their respective sectors. The nominees of national and regional
parties or organizations must be bona-fide members of such parties or organizations.
6. National, regional, and sectoral parties or organizations shall not be disqualified if some
of their nominees are disqualified, provided that they have at least one nominee who remains
qualified.
II. In the BANAT case, major political parties are disallowed, as has always been the practice,
from participating in the party-list elections. But, since there’s really no constitutional
prohibition nor a statutory prohibition, major political parties can now participate in the
party-list system provided that they do so through their bona fide sectoral wing (see
parameter 3 above).
Allowing major political parties to participate, albeit indirectly, in the party-list elections
will encourage them to work assiduously in extending their constituencies to the
“marginalized and underrepresented” and to those who “lack well-defined political
constituencies.”
Ultimately, the Supreme Court gave weight to the deliberations of the Constitutional
Commission when they were drafting the party-list system provision of the Constitution. The
Commissioners deliberated that it was their intention to include all parties into the party-
list elections in order to develop a political system which is pluralistic and multiparty. (In
the BANAT case, Justice Puno emphasized that the will of the people should defeat the intent
of the framers; and that the intent of the people, in ratifying the 1987 Constitution, is that the
party-list system should be reserved for the marginalized sectors.)
III. The Supreme Court also emphasized that the party-list system is NOT RESERVED for the
“marginalized and underrepresented” or for parties who lack “well-defined political
constituencies”. It is also for national or regional parties. It is also for small ideology-based
and cause-oriented parties who lack “well-defined political constituencies”. The common
denominator however is that all of them cannot, they do not have the machinery – unlike
major political parties, to field or sponsor candidates in the legislative districts but they can
acquire the needed votes in a national election system like the party-list system of elections.
If the party-list system is only reserved for marginalized representation, then the system
itself unduly excludes other cause-oriented groups from running for a seat in the lower
house.
As explained by the Supreme Court, party-list representation should not be understood to
include only labor, peasant, fisherfolk, urban poor, indigenous cultural communities,
handicapped, veterans, overseas workers, and other sectors that by their nature
are economically at the margins of society. It should be noted that Section 5 of Republic Act
7941 includes, among others, in its provision for sectoral representation groups of
professionals, which are not per se economically marginalized but are still qualified as
“marginalized, underrepresented, and do not have well-defined political constituencies” as
they are ideologically marginalized.
ROQUE V.COMELEC (2009)
EN BANC
[ G.R. No. 188456, September 10, 2009 ]
H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. BAGARES, ALLAN JONES F.
LARDIZABAL, GILBERT T. ANDRES, IMMACULADA D. GARCIA, ERLINDA T. MERCADO,
FRANCISCO A. ALCUAZ, MA. AZUCENA P. MACEDA, AND ALVIN A. PETERS, PETITIONERS,
VS. COMMISSION ON ELECTIONS, REPRESENTED BY HON. CHAIRMAN JOSE MELO,
COMELEC SPECIAL BIDS AND AWARDS COMMITTEE, REPRESENTED BY ITS CHAIRMAN
HON. FERDINAND RAFANAN, DEPARTMENT OF BUDGET AND MANAGEMENT,
REPRESENTED BY HON. ROLANDO ANDAYA, TOTAL INFORMATION MANAGEMENT
CORPORATION AND SMARTMATIC INTERNATIONAL CORPORATION, RESPONDENTS.
PETE QUIRINO-QUADRA, PETITIONER-IN-INTERVENTION.
SENATE OF THE PHILIPPINES, REPRESENTED BY ITS PRESIDENT, JUAN PONCE ENRILE,
MOVANT-INTERVENOR.
VELASCO JR., J.:
Facts:
On 23 January 2007, Congress passed RA 9369 amending the first automated election law,
RA 8436.[2] Section 5 of RA 8436, as amended by RA 9369, which amendment took effect
on 10 February 2007, authorized the COMELEC to:
Use an automated election system or systems in the same election in different provinces,
whether paper-based or a direct recording automated 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: Provided, that
for the regular national and local election, which shall be held immediately after effectivity
of this Act, the AES shall be used in at least two highly urbanized cities and two provinces
each in Luzon, Visayas and Mindanao, to be chosen by the Commission x x x x In succeeding
regular national or local elections, the AES shall be implemented nationwide. (Emphasis
supplied)
The COMELEC did not use any automated election system in the 14 May 2007 elections, the
national and local elections held after RA 9369 took effect.
On 10 July 2009, the COMELEC, on the one hand, and TIM and Smartmatic (Provider), on
the other, signed the Contract for the automated tallying and recording of votes cast
nationwide in the 10 May 2010 elections. For P7,191,484,739.48, the COMELEC leased for
use in the 10 May 2010 elections 82,200 optical scanners (and related equipment) and
hired ancillary services of the Provider.
On 9 July 2009, petitioners, as taxpayers and citizens, filed this petition[4] to enjoin the
signing of the Contract or its implementation and to compel disclosure of the terms of the
Contract and other agreements between the Provider and its subcontractors.[5]Petitioners
sought the Contract's invalidation for non-compliance with the requirement in Section 5 of
RA 8436, as amended, mandating the partial use of an automated election system before
deploying it nationwide. To further support their claim on the Contract's invalidity,
petitioners alleged that (1) the optical scanners leased by the COMELEC do not satisfy the
minimum systems capabilities" under RA 8436, as amended and (2) the Provider not only
failed to submit relevant documents during the bidding but also failed to show "community
of interest" among its constituent corporations as required in Information Technology
Foundation of the Philippines v. COMELEC (Infotech).
Issue
Whether or not, the COMELEC gravely abuse its discretion when it entered to contract
with Smartmatic TIM Corporation and assailing to an automated election.
Ruling
Assayed against the provisions of the Constitution, the enabling automation law, RA 8436,
as amended by RA 9369, the RFP and even the Anti-Dummy Law, which petitioners
invoked as an afterthought, the Court finds the project award to have complied with legal
prescriptions, and the terms and conditions of the corresponding automation contract in
question to be valid. No grave abuse of discretion, therefore, can be laid on the doorsteps of
respondent COMELEC. And surely, the winning joint venture should not be faulted for
having a foreign company as partner.
The COMELEC is an independent constitutional body with a distinct and pivotal role in our
scheme of government. In the discharge of its awesome functions as overseer of fair
elections, administrator and lead implementor of laws relative to the conduct of elections,
it should not be stymied with restrictions that would perhaps be justified in the case of an
organization of lesser responsibility.[103] It should be afforded ample elbow room and
enough wherewithal in devising means and initiatives that would enable it to accomplish
the great objective for which it was created--to promote free, orderly, honest and peaceful
elections. This is as it should be for, too often, COMELEC has to make decisions under
difficult conditions to address unforeseen events to preserve the integrity of the election
and in the process the voice of the people. Thus, in the past, the Court has steered away
from interfering with the COMELEC’s exercise of its power which, by law and by the nature
of its office properly pertain to it. Absent, therefore, a clear showing of grave abuse of
discretion on comelec’s part, as here, the Court should refrain from utilizing the corrective
hand of certiorari to review, let alone nullify, the acts of that body.
There are no ready-made formulas for solving public problems. Time and experience are
necessary to evolve patterns that will serve the ends of good government. In the matter of
the administration of the laws relative to the conduct of elections, x x x we must not by any
excessive zeal take away from the comelec the initiative which by constitutional and legal
mandates properly belongs to it. Due regard to the independent character of the
Commission x x x requires that the power of this court to review the acts of that body
should, as a general proposition, be used sparingly, but firmly in appropriate cases.
.This independent constitutional commission, it is true, possesses extraordinary powers
and enjoys a considerable latitude in the discharge of its functions. The road, however,
towards successful 2010 automation elections would certainly be rough and bumpy. The
comelec is laboring under very tight timelines. It would accordingly need the help of all
advocates of orderly and honest elections, of all men and women of goodwill, to smoothen
the way and assist comelec personnel address the fears expressed about the integrity of the
system. Like anyone else, the Court would like and wish automated elections to succeed,
credibly.
WHEREFORE, the instant petition is hereby DENIED.
Capalla vs. Comelec, GR No. 201112, June 13, 2012
Facts: On July 10, 2009, the Comelec and Smartmatic-TIM entered into a Contract for the
Provision of an Automated Election System for the May 10, 2010 Synchronized National
and Local Elections,(AES Contract). The contract between the Comelec and Smartmatic-TIM
was one of “lease of the AES with option to purchase (OTP) the goods listed in the
contract.” In said contract, the Comelec was given until December 31, 2010 within which to
exercise the option. In September 2010, the Comelec partially exercised its OTP 920 units
of PCOS machines with corresponding canvassing/consolidation system (CCS) for the
special elections in certain areas in the provinces of Basilan, Lanao del Sur and Bulacan. In a
letter dated December 18, 2010, Smartmatic-TIM, through its Chairman Flores, proposed a
temporary extension of the option period on the remaining PCOS machines until March 31,
2011, waiving the storage costs and covering the maintenance costs. The Comelec did not
exercise the option within the extended period. Several extensions were given for the
Comelec to exercise the OTP until its final extension on March 31, 2012.
On March 29, 2012, the Comelec issued a Resolution resolving to accept Smartmatic-TIM’s
offer to extend the period to exercise the OTP until March 31, 2012 and to authorize
Chairman Brillantes to sign for and on behalf of the Comelec the Agreement on the
Extension of the OTP Under the AES Contract (Extension Agreement). Comelec again issued
a Resolution resolving to approve the Deed of Sale between the Comelec and Smartmatic-
TIM to purchase the latter’s PCOS machines to be used in the upcoming May 2013 elections
and to authorize Chairman Brillantes to sign the Deed of Sale for and on behalf of the
Comelec. The Deed of Sale was forthwith executed.
Petitioners assail the constitutionality of the Comelec Resolutions on the grounds that the
option period provided for in the AES contract had already lapsed; that the extension of the
option period and the exercise of the option without competitive public bidding contravene
the provisions of RA 9184; and that the Comelec purchased the machines in contravention
of the standards laid down in RA 9369. On the other hand, respondents argue on the
validity of the subject transaction based on the grounds that there is no prohibition either
in the contract or provision of law for it to extend the option period; that the OTP is not an
independent contract in itself, but is a provision contained in the valid and existing AES
contract that had already satisfied the public bidding requirements of RA 9184; and that
exercising the option was the most advantageous option of the Comelec.
Issue: Whether or not there was grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Comelec in issuing the assailed Resolutions and in executing
the assailed Extension Agreement and Deed.
Held: No. A reading of the other provisions of the AES contract would show that the parties
are given the right to amend the contract which may include the period within which to
exercise the option. There is, likewise, no prohibition on the extension of the period,
provided that the contract is still effective. The Comelec still retains P50M of the amount
due Smartmatic-TIM as performance security, which indicates that the AES contract is still
effective and not yet terminated. Consequently, pursuant to Article 19 of the contract, the
provisions thereof may still be amended by mutual agreement of the parties provided said
amendment is in writing and signed by the parties. Considering, however, that the AES
contract is not an ordinary contract as it involves procurement by a government agency,
the rights and obligations of the parties are governed not only by the Civil Code but also by
RA 9184. A winning bidder is not precluded from modifying or amending certain
provisions of the contract bidded upon. However, such changes must not constitute
substantial or material amendments that would alter the basic parameters of the contract
and would constitute a denial to the other bidders of the opportunity to bid on the same
terms.
The conclusions held by the Court in Power Sector Assets and Liabilities Management
Corporation (PSALM) v. Pozzolanic Philippines Incorporated and Agan, Jr. v. Philippine
International Air Terminals Co., Inc., (PIATCO) cannot be applied in the present case. First,
Smartmatic-TIM was not granted additional right that was not previously available to the
other bidders. The bidders were apprised that aside from the lease of goods and purchase
of services, their proposals should include an OTP the subject goods. Second, the
amendment of the AES contract is not substantial. The approved budget for the contract
was P11,223,618,400.00 charged against the supplemental appropriations for election
modernization. Bids were, therefore, accepted provided that they did not exceed said
amount. The competitive public bidding conducted for the AES contract was sufficient. A
new public bidding would be a superfluity. Lastly, the amendment of the AES contract is
more advantageous to the Comelec and the public because the P7,191,484,739.48 rentals
paid for the lease of goods and purchase of services under the AES contract was considered
part of the purchase price. For the Comelec to own the subject goods, it was required to pay
only P2,130,635,048.15. If the Comelec did not exercise the option, the rentals already paid
would just be one of the government expenses for the past election and would be of no use
to future elections.
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