G.R. No. 188456 - Roque, Jr. vs. Commission on Elections

Case Summary (G.R. No. 188456)

Court’s Prior Disposition and Grounds Affirmed on Reconsideration

The Court previously dismissed the original petition and the petition-in-intervention. The principal grounds upheld on reconsideration include: (1) RA 8436, as amended, does not require that an AES must have been pilot-tested in the 2007 Philippine election if its capability has been demonstrated in prior electoral use abroad; (2) COMELEC’s technical evaluation of PCOS compliance with statutory minimum capabilities was properly performed and entitled to respect absent grave abuse of discretion; (3) COMELEC retained constitutional supervision, oversight, and control of the electoral process despite contracting technical services; and (4) continuity and contingency plans for machine failure were provided for in the contract documents.

Standard on Speculation, Conjecture, and Judicial Relief

The Court rejected petitioners’ threshold contention premised largely on speculation and conjecture about a “high probability” of automated election failure. The Court emphasized that speculative assertions lack probative value and cannot justify nullification of the contract; factual and legal challenges must be grounded in proof rather than conjectural predictions of harm.

Contextualization of COMELEC Statements and Contingency Planning

Petitioners relied on selective quotations of public statements by COMELEC officials to argue likely failure; the Court examined the source material and found the statements to be contextualized within contingency planning (including readiness for manual polls in remote areas) rather than admissions of abdication or inevitable failure. The Court cautioned against selective citation that distorts the context of public pronouncements.

Abdication of COMELEC Functions and Contract Allocation of Technical Duties

Petitioners argued that Article 3.3 of the automation contract and related provisions represented an unlawful surrender of COMELEC’s constitutional duty to decide all questions affecting elections (Article IX‑C, Sec. 2 of the 1987 Constitution) and to establish an IT department under Sec. 26 of RA 8436. The Court reaffirmed its prior finding that the contract assigns limited, specific technical tasks to the provider (Smartmatic) while preserving COMELEC’s exclusive supervision and control. Article 6.7 of the contract expressly provides that voting, counting, transmission, consolidation, and canvassing shall be conducted by COMELEC personnel and that final responsibility is shared, thereby preserving COMELEC’s constitutional and statutory responsibilities.

Continuity and Back-up Plans, and Legal Framework for Ballot Appreciation

The Court found petitioners’ claim of lack of legal framework for appreciating automated ballots or for manual counting in the event of machine failure to be unpersuasive. The record reflects continuity and contingency plans for addressing system breakdowns, and RA 9369’s continuity plan provision requires published and furnished continuity plans. The Court also observed that COMELEC is the primary administrative body for elections and has discretion to devise means and methods to discharge its mandate; judicial preemption of COMELEC’s initiative was unwarranted absent compelling proof of abuse.

Source Code Review under Section 14 of RA 8436

Petitioners alleged likely noncompliance with the statutory obligation to make the system source code available for review. The Court treated the contention as speculative because the absence of an express schedule item for source code review in COMELEC’s published activities does not demonstrate an intent to disobey statute. COMELEC represented that it would make the source code available under controlled conditions to protect proprietary rights while allowing review. In the absence of proof to the contrary, the Court afforded COMELEC the presumption of good faith in implementing Sec. 14.

Compliance with Section 12: Demonstrated Capability via Foreign Electoral Use

Petitioners challenged certifications relied upon by COMELEC, contending the certifications did not directly pertain to TIM–Smartmatic and therefore failed to satisfy Sec. 12’s “demonstrated capability” requirement. The Court sustained its prior resolution that the AES chosen had been deployed in prior electoral exercises abroad (e.g., Ontario, Canada; New York, USA), and that Smartmatic held licensing arrangements permitting use of the system. The Court rejected petitioners’ late factual assertion distinguishing the specific foreign device as a different instrument (Dominion ImageCast) as procedurally improper and unsupported by verified evidence within the original record.

Telecommunications and Operational Capacity Concerns

Petitioners advanced speculative assertions that private respondents would be unable to provide telecommunications facilities ensuring 100% coverage. The Court reiterated that such speculative risks do not constitute a legal basis to annul a properly awarded contract; possible breaches of contractual obligations are not grounds for premature rescission absent proof of grave abuse.

Subcontracting Allegations and Use of Unverified News Reports

Petitioners alleged,

Case Syllabus (G.R. No. 188456)

Procedural History

Petitioners H. Harry L. Roque, Jr., et al. originally filed a petition for certiorari, prohibition, and mandamus to nullify Comelec's contract award of the 2010 Election Automation Project to the joint venture of Total Information Management Corporation (TIM) and Smartmatic International Corporation (Smartmatic).
By Decision dated September 10, 2009, the Court denied the original petition and the petition-in-intervention of Pete Q. Quadra; the denial rested on multiple grounds addressing statutory interpretation, Comelec discretion, supervision and control, and contingency measures.
Petitioners filed a motion for reconsideration, as supplemented, renewing their prayer to declare the contract award null and void for alleged violations of the Constitution, statutes, and jurisprudence.
Intervening petitioner Pete Q. Quadra filed a similar motion seeking an order that the Board of Election Inspectors manually count ballots after printing and electronic transmission of election returns.
Public and private respondents (Comelec, DBM, TIM, Smartmatic) filed separate comments and oppositions to the motions.
The Court, upon consideration of the motions and oppositions, denied the motions for reconsideration and the intervenor’s motion.

Parties and Roles

Petitioners: 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.
Respondents: Commission on Elections (Comelec), represented by Chairman Jose Melo; Comelec Special Bids and Awards Committee, represented by Chairman Ferdinand Rafanan; Department of Budget and Management, represented by Rolando Andaya; Total Information Management Corporation; Smartmatic International Corporation.
Petitioner-in-intervention: Pete Quirino-Quadra.
Movant-intervenor: Senate of the Philippines, represented by its President, Juan Ponce Enrile.

Subject Matter and Underlying Contract

The contested subject is the Comelec award of the 2010 Election Automation Project to the TIM-Smartmatic joint venture, involving procurement and deployment of a Precinct Count Optical Scan (PCOS) automated election system (AES).
The petition challenged non-compliance with pilot-testing requirements of RA 9369 (amending RA 8436), alleged failure to meet minimum system capabilities of the AES, and initially raised non-submission of joint venture documentation (later abandoned or not earnestly pursued).
The automation contract contains provisions allocating certain technical tasks to Smartmatic and recognizing Comelec’s supervisory role; Art. 6.7 of the contract expressly states that the entire process of voting, counting, transmission, consolidation and canvassing shall be conducted by Comelec personnel and that performance and final results shall be the shared responsibility of Comelec and the provider.

Core Legal Provisions Quoted or Invoked

RA 8436, as amended by RA 9369:
- Sec. 12 (Procurement of Equipment and Materials): “With respect to the May 10, 2010 elections and succeeding electoral exercises, the system procured must have demonstrated capability and been successfully used in prior electoral exercise here or abroad. Participation in the 2007 pilot exercise shall not be conclusive of the system’s fitness.”
- Sec. 14 (Examination and Testing of Equipment or Device of the AES and Opening of the Source Code of Review): mandates that once AES technology is selected, the Commission shall promptly make the source code available and open to any interested political party or groups which may conduct their own review thereof.
- Sec. 26 (Supervision and control): “The System shall be under the exclusive supervision and control of the [Comelec]. For this purpose, there is hereby created an information technology department in the Commission to carry out the full administration and implementation of the System.”
Automation contract clause cited (Article 3.3 and Art. 6.7):
- Article 3.3 (as quoted): SMARTMATIC “shall be in charge of the technical aspects of the counting and canvassing software and hardware, including transmission configuration and system integration. SMARTMATIC shall also be primarily responsible for preventing and troubleshooting technical problems that may arise during the election.”
- Art. 6.7 (as quoted): “Subject to the provisions of the General Instructions to be issued by the Commission En Banc, the entire process of voting, counting, transmission, consolidation and canvassing of votes shall [still] be conducted by COMELEC's personnel and officials ... and final results ... shall be the shared responsibility of COMELEC and the PROVIDER.”
RA 9369 amendment relating to continuity plans for AES (quoted in the Decision): Sec. 13. Continuity Plan — requires AES to include a continuity plan in case of systems breakdown; activation of measures to be undertaken in presence of representatives of political parties and citizen's arm, publication and posting of continuity plan.

Issues Presented in Motion for Reconsideration

Petitioners alleged (as grounds for reconsideration):
- Public pronouncements by Comelec indicate a “high probability” of failure of automated elections in 2010.
- Comelec abdicated its constitutional functions to Smartmatic, contrary to Sec. 26 of RA 8436.
- There is no legal framework to guide Comelec in appreciating automated ballots or managing manual counts should PCOS machines fail.
- Respondents cannot comply with the statutory requirement to open the source code for review (Sec. 14).
- Certifications submitted by private respondents as to prior use of the machines abroad do not fulfill Sec. 12’s requirement.
- Private respondents may be unable to provide telecommunications facilities ensuring 100% coverage for transmission during the 2010 elections.
- Subcontracting manufacture of PCOS machines to Quisdi (Shanghai-based) violates Comelec bidding rules and amounts to unlawful subcontracting under procurement rules.
Intervenor Quadra sought an order that Board of Election Inspectors manually count ballots after printing and transmission of election returns (auditability concern).

Court’s Disposition

The Court DENIED the separate motions for reconsideration of petitioners and the intervenor.
The Court reaffirmed its September 10, 2009 Decision dismissing the original petitions and petition-in-intervention.
Opinions: Puno, C.J., Corona, Nachura, Leonardo‑De Castro, Brion, Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr., Perez, and Mendoza, JJ., concurred. Carpio, J., reiterated his dissent of September 10, 2009. Carpio Morales, J., maintained concurrence with the dissent.

Main Holdings and Legal Reasoning (as set out in the Decision)

Statutory interpretation of pilot-testing requirement:
- RA 8436, as amended, does not mandate that an AES used for the 2010 nationwide elections must have been pilot-tested in the 2007 Philippine election; it is sufficient that the chosen AES’s capability has been demonstrated in an electoral exercise abroad.
Evaluation and discretion of Comelec:
- Comelec adopted a rigid technical evaluation mechanism to ensure compliance with the minimum capability standards prescribed by RA 8436, as amended; the Comelec’s determination in this regard is to be respected absent grave abuse of discretion.
Supervision and control:
- Comelec retains exclusive supervision, oversight, and control under the automation arrangement; by contracting the provider, Comelec did not abdicate its constitutional duty to enforce and administer election laws and to decide questions affecting elections.
- Art. 6.7 of the automation contract recognizes Comelec’s constitutional and statutory responsibilities while recognizing the tech