ROQUE

VS

COMELEC

Petitioners Roque, et al., as movants

herein, seek a reconsideration of the
September 10, 2009 Decision on the
following

Facts:

issues

or

grounds:

This case is a motion for

reconsideration filed by the petitioners of
the September 10, 2009 ruling of the
Supreme

Court,

which

denied

the

petition of H. Harry L. Roque, Jr., et al.

for certiorari, prohibition,
award of the 2010 Election Automation
Project to the joint venture of Total
Information Management Corporation
(TIM) and Smartmatic International
(Smartmatic).

In this MR, petitioners Roque, et al. are

again before the Supreme Court asking
that the contract award be declared null
and void on the stated ground that it was
made in violation of the Constitution,
statutes, and jurisprudence. Intervening
petitioner also interposed a similar
motion, but only to pray that the Board
of Election Inspectors be ordered to
manually count the ballots after the
printing and electronic transmission of
the

election

The

Comelecs

public

pronouncements show that there is a

"high probability" that there will be
failure

of

automated

elections;

2. Comelec abdicated its constitutional

and mandamus to nullify the contract-

Corporation

1.

returns.

functions in favor of Smartmatic;

3. There is no legal framework to guide
the Comelec in appreciating automated
ballots in case the PCOS machines fail;
4. Respondents cannot comply with the
requirements of RA 8436 for a source
code

review;

5. Certifications submitted by private

respondents as to the successful use of
the machines in elections abroad do not
fulfill the requirement of Sec. 12 of RA
8436;
6. Private respondents will not be able to
provide telecommunications facilities
that will assure 100% communications
coverage at all times during the conduct
of

the

2010

elections;

and

7. Subcontracting the manufacture of

that the use of PCOS machines in the

PCOS machines to Quisdi violates the

May 2010 elections will result in failure

Comelecs

rules.

of elections"; "the unaddressed logistical

Note: (This digest would only

nightmaresand the lack of contingency

deal with the procedural aspect of the

plans that should have been crafted as a

MR.

result of a pilot testmake an automated

bidding

Only

those

issues

or

failure of elections very probable"; and

grounds

the

"COMELEC committed grave abuse of

Court made a ruling re: procedure

discretion when it signed x x x the

would

here.)

contract for full automation x x x despite

Issue: Is the motion for reconsideration

the likelihood of a failure of elections."

be

wherein

discussed

meritorious?
Ruling:

Speculations and conjectures are not

No.

equivalent to proof; they have little, if

Upon taking a second hard look into the

any, probative value and, surely, cannot

issues in the case at bar and the

be the basis of a sound judgment.

arguments earnestly pressed in the

instant motions, the Court cannot grant

Petitioners, to support their speculative

the

venture vis--vis the possibility of

desired

reconsideration.

Comelec going manual, have attributed

Petitioners threshold argument delves

certain

statements

on possibilities, on matters that may or

Comelec Chairman Melo, citing for the

may not occur. The conjectural and

purpose a news item on Inquirer.net,

speculative nature of the first issue

posted

September

to

respondent

16,

2009.

raised is reflected in the very manner of

its formulation and by statements, such

Reacting to the attribution, however,

as "the public pronouncements of public

respondents TIM and Smartmatic, in

respondent COMELEC x x x clearly

their comment, described the Melo

show that there is a high probability that

pronouncements as made in the context

there will be automated failure of

of

elections"; "there is a high probability

Petitioners,

Comelecs

contingency

however,

the

plan.
same

respondents added, put a misleading

spin to the Melo pronouncements by

machines nationwide and of the 2,000

reproducing part of the news item, but

reserved unitshave been discussed in

omitting to make reference to his

some detail in the Decision subject of

succeeding statements to arrive at a

this recourse. The Court need not

clearer

belabor

and

true

picture.

them

again.

Private respondents observation is well-

While a motion for reconsideration may

taken. Indeed, it is easy to selectively

tend to dwell on issues already resolved

cite portions of what has been said,

in the decision sought to be reconsidered

sometimes out of their proper context, in

and this should not be an obstacle for

order

misleading

a reconsiderationthe hard reality is

conclusion. The effect can be dangerous.

that petitioners have failed to raise

Improper meaning may be deliberately

matters

attached to innocent views or even

compellingly persuasive to warrant the

occasional

desired

to

assert

crude

comments by

the

substantially
course

plausible
of

or

action.

simple expediency of lifting them out of

context

from

any

publication.

Significantly, petitioners, in support of

their position on the lack-of-legal-

Petitioners posture anent the third issue,

framework issue, invoke the opinion of

i.e, there no is legal framework to guide

Associate, later Chief, Justice Artemio

Comelec

of

Panganiban in Loong v. Comelec, where

automated ballots or to govern manual

he made the following observations:

count should PCOS machines fail,

"Resort to manual appreciation of the

cannot be accorded cogency. First, it

ballots is precluded by the basic features

glosses over the continuity and back-up

of the automated election system," and

plans that would be implemented in case

"the rules laid down in the Omnibus

the PCOS machines falter during the

Election

2010 elections. The overall fallback

appreciation and counting of ballots cast

strategy and options to address even the

in a manual election x x x are

worst-case

scenariothe

inappropriate, if not downright useless,

breakdown

of

in

the

the

appreciation

wholesale

80,000

needed

Code

(OEC)

for

the

to the proper appreciation and reading of

the ballots used in the automated

petitioners. As it is, private respondents

system." Without delving on its wisdom

have even questioned the reliability of

and

Justice

the website24 whence petitioners base

Panganiban thus cited came by way of a

their assertion, albeit the former, citing

dissenting opinion. As such, it is without

the same website, state that the Image

binding effect, a dissenting opinion

Cast Precinct tabulation device refers to

being

the

validity, the

mere

view

of

expression

of

the

Dominions

PCOS

machines.

matter

of

individual view of a member of the

Court or other collegial adjudicating

Moreover, as

body,

the

established practice, points of law,

majority.

theories, issues, and arguments not

while

conclusion

disagreeing

held

by

with

the

sound

raised in the original proceedings cannot

And going to another but recycled issue,

be

petitioners

Court

considerations of fair play impel this

invalidate the automation contract on the

rule. The imperatives of orderly, if not

ground that the certifications submitted

speedy, justice frown on a piecemeal

by Smartmatic during the bidding,

presentation of evidence and on the

showing that the PCOS technology has

practice of parties of going to trial

been used in elections abroad, do not

haphazardly.

would

have

the

brought

out

on

review. Basic

comply with Sec. 1222 of RA 8436.

Presently, petitioners assert that the

Moving still to another issue, petitioners

system certified as having been used in

claim that "there are very strong

New York was the Dominion Image

indications that Private Respondents will

Cast,

not

ballot

marking

device.

be

able

to

provide

for

telecommunication facilities for areas

Petitioners have obviously inserted, at

without these facilities." This argument,

this stage of the case, an entirely new

being

factual dimension to their cause. This we

without evidentiary value and hardly

cannot allow for compelling reasons. For

provides a ground for the Court to

starters, the Court cannot plausibly

nullify the automation contract.Surely, a

validate

possible

this

factual

assertion

of

again

highly

breach

of

speculative,

is

contractual

stipulation is not a legal reason to

prematurely rescind, much less annul,
the

contract.

Finally, petitioners argue that, based on

news reports,28 the TIM-Smartmatic
joint venture has entered into a new
contract with Quisdi, a Shanghai-based
company, to manufacture on its behalf
the needed PCOS machines to fully
automate the 2010 elections.29 This
arrangement, petitioners aver, violates
the bid rules proscribing sub-contracting
of

significant

components

automation

of

the

project.

The argument is untenable, based as it is

again on news reports. Surely, petitioners
cannot expect the Court to act on
unverified reports foisted on it.
AKBAYAN

AQUINO

Facts:
The signing of the Japan-Philippines
Economic
Partnership
Agreement
(JPEPA) at the sidelines of the AsiaEurope
Summit
in
Helsinki
in
September 2006 was hailed by both
Japanese Prime Minister Junichiro
Koizumi and Philippine President Gloria
Macapagal Arroyo as a milestone in
the
continuing
cooperation
and
collaboration, setting a new chapter of
strategic
partnership
for
mutual

opportunity
countries).

and

growth

(for

both

JPEPA which has been referred to as a

mega treaty is a comprehensive plan
for opening up of markets in goods
and services as well as removing
barriers
and
restrictions
on
investments. It is a deal that
encompasses even our commitments
to
the
WTO.
The complexity of JPEPA became all
the more evident at the Senate
hearing conducted by the Committee
on
Trade
and
Commerce
last
November 2006. The committee,
chaired by Senator Mar Roxas, heard
differing views and perspectives on
JPEPA. On one hand the committee
heard Governments rosy projections
on the economic benefits of JPEPA and
on the other hand the views of
environmental and trade activists who
raised there very serious concerns
about the country being turned into
Japans toxic waste basket. The
discussion in the Senate showed that
JPEPA is not just an issue concerning
trade and economic relations with
Japan but one that touches on broader
national
development
concerns.
Issues:
1. Do the petitioners have standing to
bring this action for mandamus in their
capacity as citizens of the Republic, as
taxpayers, and as members of the
Congress
2. Can this Honorable Court exercise
primary jurisdiction of this case and
take cognizance of the instant petition.
3. Are the documents and information
being requested in relation to the
JPEPA exempted from the general
rules on transparency and full public
disclosure such that the Philippine
government is justified in denying
access
thereto.

Ruling:
The
Supreme
Court
en
banc
promulgated last July 16, 2008 its
ruling on the case of Akbayan Citizens
Action Party et al vs. Thomas G.
Aquino et al (G.R. No. 170516). The
Highest Tribunal dismissed the Petition
for mandamus and prohibition, which
sought
to
compel
respondents
Department of Trade Industry (DTI)
Undersecretary Thomas Aquino et al to
furnish petitioners the full text of the
Japan-Philippines
Economic
Partnership Agreement (JPEPA) and
the lists of the Philippine and Japanese
offers submitted during the negotiation
process and all pertinent attachments
and
annexes
thereto.
In its Decision, the Court noted that
the full text of the JPEPA has been
made accessible to the public since 11
September 2006, and thus the
demand to be furnished with copy of
the said document has become moot
and academic. Notwithstanding this,
however, the Court lengthily discussed
the substatives issues, insofar as they
impinge on petitioners' demand for
access to the Philippine and Japanese
offers
in
the
course
of
the
negotiations.
The
Court
held:
Applying
the
principles
adopted
in
PMPF
v.
Manglapus, it is clear that while the
final text of the JPEPA may not be kept
perpetually confidential since there
should be 'ample opportunity for
discussion
before
[a
treaty]
is
approved' the offers exchanged by

the parties during the negotiations

continue to be privileged even after
the JPEPA is published. It is reasonable
to
conclude
that
the
Japenese
representatives submitted their offers
with the understanding that 'historic
confidentiality' would govern the same.
Disclosing these offers could impair the
ability of the Philippines to deal not
only with Japan but with other foreign
governments in future negotiations.
It also reasoned out that opening for
public scrutiny the Philippine offers in
treaty negotiations would discourage
future Philippine representatives from
frankly expressing their views during
negotiations. The Highest Tribunal
recognized that treaty negotiations
normally involve a process of quid pro
quo, where negotiators would willingly
grant concessions in an area of lesser
importance in order to obtain more
favorable terms in an area of greater
national
interest.
In the same Decision, the Court took
time to address the dissent of Chief
Justice Reynato S. Puno. It said: We
are aware that behind the dissent of
the Chief Justice lies a genuine zeal to
protect
our
people's
right
to
information against any abuse of
executive privilege. It is a zeal that We
fully share. The Court, however, in its
endeavour to guard against the abuse
of executive privilege, should be
careful not to veer towards the
opposite extreme, to the point that it
would strike down as invalid even a
legitimate exercise thereof.