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.