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EN BANC

G.R. No. 159139 June 15, 2005

INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, MA. CORAZON M. AKOL, MIGUEL UY,
EDUARDO H. LOPEZ, AUGUSTO C. LAGMAN, REX C. DRILON, MIGUEL HILADO, LEY SALCEDO, and
MANUEL ALCUAZ JR., Petitioners,
vs.
COMMISSION ON ELECTIONS; COMELEC CHAIRMAN BENJAMIN ABALOS SR.; COMELEC BIDDING and
AWARD COMMITTEE CHAIRMAN EDUARDO D. MEJOS and MEMBERS GIDEON DE GUZMAN, JOSE F.
BALBUENA, LAMBERTO P. LLAMAS, and BARTOLOME SINOCRUZ JR.; MEGA PACIFIC eSOLUTIONS, INC.;
and MEGA PACIFIC CONSORTIUM, Respondents.

RESOLUTION

PANGANIBAN, J.:

Our Decision1 in the present case voided the Contract entered into by the Commission on Elections (Comelec) for
the supply of automated counting machines (ACMs) because of "clear violation of law and jurisprudence" and
"reckless disregard of [Comelec’s] own bidding rules and procedure." Moreover, "Comelec awarded this billion-dollar
undertaking with inexplicable haste, without adequately checking and observing mandatory financial, technical and
legal requirements. x x x. The illegal, imprudent and hasty actions of the Commission have not only desecrated legal
and jurisprudential norms, but have also cast serious doubts upon the poll body’s ability and capacity to conduct
automated elections." As a result, the ACMs illegally procured and improvidently paid for by Comelec were not used
during the 2004 national elections.

In its present Motion, the poll body expressly admits that the Decision "has become final and executory," and that
"COMELEC and MPC-MPEI are under obligation to make mutual restitution." Otherwise stated, this admission
implies that the ACMs are to be returned to MPC-MPEI, and that the sum of over one billion pesos illegally paid for
them be refunded to the public purse.2 In short, ownership of the ACMs never left MPC-MPEI and the money paid
for them still belongs, and must be returned, to the government.

Consequently, the ACMs, which "admittedly failed to pass legally mandated technical requirements" cannot be used
during the forthcoming elections in the Autonomous Region for Muslim Mindanao (ARMM). Apart from formidable
legal, jurisprudential, technical and financial obstacles, the use of the machines would expose the ARMM elections
to the same electoral pitfalls and frauds pointed out in our Decision. If the ACMs were not good enough for the 2004
national elections, why should they be good enough now for the 2005 ARMM elections, considering that nothing has
been done by Comelec to correct the legal, jurisprudential and technical flaws underscored in our final and
executory Decision?

The Motion

Before us is the Commission on Election’s "Most Respectful Motion for Leave to Use the Automated
Counting Machines in [the] Custody of the Commission on Elections for use (sic) in the August 8, 2005
Elections in the Autonomous Region for Muslim Mindanao (ARMM)," dated December 9, 2004. In its
January 18, 2005 Resolution, the Court required the parties to comment. After careful deliberation on
all pleadings at hand, we now resolve the Motion.

Background Information

At the outset, we stress that the Decision in the present case, promulgated on January 13, 2004, has
long attained finality.3 In our February 17, 2004 Resolution, we denied with finality Comelec’s Motion
for Reconsideration dated January 28, 2004, as well as private respondents’ Omnibus Motion dated
January 26, 2004. The Decision was recorded in the Book of Entries of Judgments on March 30, 2004.

Recall that our Decision declared Comelec to have acted with grave abuse of discretion when, by way of its
Resolution No. 6074, it awarded the Contract for the supply of automated counting machines (ACMs) to private
respondents. It did so, not only in clear violation of law and jurisprudence, but also with inexplicable haste and
reckless disregard of its own bidding rules and procedures; particularly the mandatory financial, technical and legal
requirements. It further manifested such grave abuse of discretion when it accepted the subject computer hardware
and software even though, at the time of the award, these had patently failed to pass eight critical requirements
designed to safeguard the integrity of the elections. Consequently, this Court was constrained to exercise its
constitutional duty by voiding the assailed Resolution No. 6074 awarding the Contract to Mega Pacific Consortium,
as well as the subject Contract itself executed between Comelec and Mega Pacific eSolutions, Inc.

Comelec was further ordered to refrain from implementing any other contract or agreement it had entered into with
regard to the said project. We also declared that, as a necessary consequence of such nullity and illegality, the
purchase of the ACMs and the software, along with all payments made for them, had no basis in law. Hence, the

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public funds spent must be recovered from the payees and/or the persons who made the illegal disbursements
possible, without prejudice to possible criminal prosecutions against them.4

Likewise, our February 17, 2004 Resolution denying reconsideration found movants to have raised the same
procedural and substantive issues already exhaustively discussed and definitively passed upon in our Decision. In
that Resolution, we emphasized (and we reiterate here) that the Decision did not prohibit automation of the
elections. Neither did the Court say that it was opposed to such project (or the use of ACMs) as a general
proposition. We repeated our explanation that the reason for voiding the assailed Resolution and the subject
Contract was the grave abuse of discretion on the part of Comelec; as well as its violations of law -- specifically RA
9184, RA 8436, and RA 6955 as amended by RA 7718; prevailing jurisprudence (the latest of which was Agan v.
Philippine International Air Terminals Co., Inc.5); and the bidding rules and policies of the Commission itself.

Comelec’s Claims

Notwithstanding our Decision and Resolution, the present Motion claims, inter alia, that the ARMM elections are
slated to be held on August 8, 2005, and are mandated by RA 9333 to be automated; that the government has no
available funds to finance the automation of those elections; that considering its present fiscal difficulties, obtaining a
special appropriation for the purpose is unlikely; that, on the other hand, there are in Comelec’s custody at present
1,991 ACMs, which were previously delivered by private respondents; that these machines would deteriorate and
become obsolete if they remain idle and unused; that they are now being stored in the Comelec Maxilite Warehouse
along UN Avenue, at "storage expenses of ₱329,355.26 a month, or ₱3,979,460.24 annually."

The Motion further alleges that "information technology experts," who purportedly supervised all stages of the
software development for the creation of the final version to be used in the ACMs, have unanimously confirmed that
this undertaking is in line with the internationally accepted standards (ISO/IEC 12207) for software life cycle
processes, "with its quality assurance that it would be fit for use in the elections x x x."

Comelec also points out that the process of "enhancement" of the counting and canvassing software has to be
commenced at least six (6) months prior to the August 8, 2005 ARMM elections, in order to be ready by then. It
asserts that its Motion is (a) without prejudice to the ongoing Civil Case No. 04-346 pending before the Regional
Trial Court of Makati City, Branch 59, entitled "Mega Pacific eSolutions, Inc. v. Republic of the Philippines
(represented by the Commission on Elections)," for the collection of a purported ₱200 million balance due from
Comelec under the voided Contract; and (b) with a continuing respectful recognition of the finality and legal effects
of our aforesaid Decision. At bottom, Comelec prays that it be granted leave to use the ACMs in its custody during
the said ARMM elections.

Private Respondents’ Contentions

Commenting on the present Motion, private respondents take the position that, since the subject ACMs have
already been delivered to, paid for and used by Comelec, the Republic of the Philippines is now their owner, without
prejudice to Mega Pacific eSolutions, Inc.’s claim for damages in the case pending before the RTC of Makati; and
that, consequently, as far as private respondents are concerned, the question of using the subject ACMs for the
ARMM elections is dependent solely on the discretion of the owner, the Republic of the Philippines.

Petitioners’ Comment

On the other hand, petitioners contend that Comelec is asking this Court to render an advisory opinion, in
contravention of the constitutional provision6 that explicitly states that the exercise of judicial power is confined to (1)
settling actual controversies involving rights that are legally demandable and enforceable; and (2) determining
whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of government.

Petitioners assert that there is no longer any live case or controversy to speak of -- an existing case or controversy
that is appropriate or ripe for determination, not merely conjectural or anticipatory; and that Comelec’s allegations in
its Motion do not amount to an actual case or controversy that would require this Court to render a decision or
resolution in the legitimate exercise of its judicial power. This lack of actual controversy is clearly seen in the relief
prayed for in the Motion: the grant of a leave to use the ACMs during the ARMM elections. Obviously, Comelec
merely seeks an advisory opinion from this Court on whether its proposal to use the ACMs during the said elections
might be in violation of this Court’s Decision dated January 13, 2004, and Resolution dated February 17, 2004.

Assuming arguendo that the present Motion might somehow be justified by the government’s fiscal difficulties,
petitioners further argue that permitting Comelec to use the ACMs would nevertheless allow it to do indirectly what it
was not permitted by this Court to do directly. They argue that the instant Motion is merely a subterfuge on the poll
body’s part to resurrect a lost case via a request for an advisory opinion.

The OSG’s Comment

The Office of the Solicitor General (OSG) declares in its Comment that, in compliance with this Court’s directive for it
to "take measures to protect the government and vindicate public interest from the ill effects of the illegal
disbursements of public funds made by reason of the void [Comelec] Resolution and Contract," it filed on behalf of
the Republic on July 7, 2004, an Answer with Counterclaim in Civil Case No. 04-346. The OSG prayed for the return
of all payments made by Comelec to Mega Pacific under the void Contract, amounting to ₱1,048,828,407.

The OSG also manifests that it received a copy of the Complaint-Affidavit dated September 15, 2004, filed with the
Office of the Ombudsman by the Bantay Katarungan Foundation and the Kilosbayan Foundation against the
Comelec commissioners who had awarded the Contract for the ACMs; and the private individuals involved,
including the incorporators and officers of Mega Pacific eSolutions, Inc. This Complaint-Affidavit was for violation of
the Anti-Plunder Law (RA 7030), the Anti-Graft and Corrupt Practices Act (RA 3019 as amended), and the Code of
Conduct and Ethical Standards for Public Officials and Employees (RA 6713).

The complainants alleged immense kickbacks and horrendous overpricing involved in the purchase of the 1,991
ACMs. Based on the OSG’s available records, it appears that Comelec withdrew from Land Bank ₱1.03 billion, but
actually paid Mega Pacific only ₱550.81 million. Furthermore, commercial invoices and bank applications for
documentary credits reveal that each ACM cost only ₱276,650.00, but that Comelec agreed to pay Mega Pacific
₱430,394.17 per unit -- or a differential of ₱153,744.17 per unit or an aggregate differential of ₱306.10 million.
Moreover, Mega Pacific charged ₱83.924 million for value-added taxes (VAT) and ₱81.024 million more for customs

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duties and brokerage fees, when in fact -- under the nullified Contract -- it was supposed to be exempt from VAT,
customs duties and brokerage fees. Lastly, Comelec agreed to peg the ACM price at the exchange rate of ₱58 to
$1, when the exchange rate was ₱55 to $1 at the time of the bidding, resulting in additional losses for the
government amounting to about ₱30 million.

The OSG hews to the view that the automation of elections, if properly carried out, is a desirable objective, but is
mindful of the need for mutual restitution by the parties as a result of the final Decision nullifying the Contract for the
ACMs. Nevertheless, in apparent response to Comelec’s clamor to use the ACMs in the ARMM elections, the OSG
manifests that it has no objection to the proposal to use the machines, provided however that (1) Comelec should
show with reasonable certainty that the hardware and software of the ACMs can be effectively used for the intended
purpose; (2) Mega Pacific should be made to return to the Republic at least a substantial portion of the overprice
they charged for the purchase of the ACMs; and (3) the use of these machines, if authorized by this Court, should
be without prejudice to the prosecution of the related criminal cases pending before the Office of the Ombudsman
(OMB).

The OMB’s Manifestation

For its part, the Office of the Ombudsman manifested that as a result of the nullification of the Contract, various fact-
finding investigations had been conducted, and criminal and administrative charges filed before it against the
persons who appeared to be responsible for the anomalous Contract; and that the various cases had been
consolidated, and preliminary investigation conducted in respect of the non-impeachable Comelec officials and co-
conspirators/private individuals. Furthermore, the OMB is in the process of determining whether a verified
impeachment complaint may be filed against the poll body’s impeachable officials concerned.

A Supplemental Complaint prepared and filed by the Field Investigation Office of the Ombudsman reveals that the
ACMs were overpriced by about ₱162,000.00 per unit; that, additionally, Mega Pacific unduly benefited by including
VAT and import duties amounting to ₱194.60 million in its bid price for the ACMs, despite Section 8 of RA 8436
exempting such equipment from taxes and duties; that Comelec nonetheless awarded the Contract to Mega Pacific
at the same bid price of ₱1.249 billion, inclusive of VAT, import duties and so on; and that the Commission allowed
Mega Pacific to peg the ACM price using an exchange rate of ₱58 to $1 instead of ₱53 to $1, which further inflated
Mega Pacific’s windfall.

The foregoing notwithstanding, the OMB had allegedly prepared a comment on the present Motion, stating its
position on the issue of utilizing the ACMs, but upon further reflection decided not to file that comment. It came to
the conclusion that ventilating its position on the matter might engender certain impressions that it had already
resolved factual and/or legal issues closely intertwined with the elements of the offenses charged in the criminal and
administrative cases pending before it. "For one, utilizing illegally procured goods or the intentional non-return
thereof to the supplier may have a bearing on the determination of evident bad faith or manifest partiality, an
essential element in any prosecution under the anti-graft law, and may, at the same time, be constitutive of
misconduct penalized under relevant disciplinary laws."

Consequently, out of prudential considerations, the OMB prayed to be excused from commenting on the merits of
the present Motion, to avoid any perception of prejudgment, bias or partiality on its part, in connection with the
criminal and administrative cases pending before it.

The Court’s Ruling

Decision Subverted by the Motion

There are several reasons why the present Motion must be denied. First, although it professes utmost respect for
the finality of our Decision of January 13, 2004 -- an inescapable and immutable fact from which spring equally
ineludible consequences -- granting it would have the effect of illegally reversing and subverting our final
Decision. Plainly stated, our final Decision bars the grant of the present Motion.

To stress, as a direct result of our January 13, 2004 Decision, the Contract for the supply of the subject ACMs was
voided, and the machines were not used in the 2004 national elections. Furthermore, the OSG was directed "to take
measures to protect the government and vindicate public interest from the ill-effects of the illegal disbursements of
public funds made by reason of the void Resolution." Accordingly, in Civil Case No. 04-346, the government counsel
has prayed for mutual restitution; and for the "return of all payments, amounting to ₱1,048,828,407.00 made by
Comelec to Mega Pacific under the void Contract."

In the meantime, Comelec has done nothing -- at least, nothing has been reported in the present Motion -- to abide
by and enforce our Decision. Apparently, it has not done anything to rectify its violations of laws, jurisprudence and
its own bidding rules referred to in our judgment. Neither has it reported any attempt to correct and observe the
"mandatory financial, technical and legal requirements" needed to computerize the elections.

Apparently, it has simply filed the present Motion asking permission to do what it has precisely been prohibited from
doing under our final and executory Decision. If law and jurisprudence bar it from using the subject ACMs during the
last elections, why should it even propose to use these machines in the forthcoming ARMM elections? True, these
elections are important. But they cannot be more important than the 2004 national elections. Note that the factual
premises and the laws involved in the procurement and use of the ACMs have not changed. Indeed, Comelec has
not even alleged, much less proven, any supervening factual or legal circumstances to justify its Motion.

Basic and primordial is the rule that when a final judgment becomes executory, it thereby becomes immutable and
unalterable. In other words, such a judgment may no longer undergo any modification, much less any reversal, even
if it is meant to correct what is perceived to be an erroneous conclusion of fact or law; and even if it is attempted by
the court rendering it or by this Court.7 Equally well-entrenched is the doctrine that what is not permitted to be done
directly may not be done indirectly either. In the instant case, it is unarguable that the inexorable result of granting
the present Motion will precisely be a subversion of the Decision, or at least a modification that would render the
latter totally ineffective and nugatory.

To support its present Motion, Comelec appended as Annex 1 a letter dated January 22, 2004. Addressed to its
chairman, the Annex was signed by four8 self-proclaimed "information technology experts,"9 who had gratuitously
contended that this Court’s Decision was "one of the most inopportune rulings ever to come out of the hallowed halls
of that High Tribunal"; blame the Decision for supposedly forcing our people "to entrust their votes to a manual
system of counting and canvassing that have been proven to be prone to massive fraud in the past"; and mouth

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legal/technical arguments that have already been repeatedly debunked in the Decision and Resolution here. The
letter also included a long-winded, tortuous discussion of the software development life cycle.

A quick check of the case records confirmed our suspicion. The very same letter dated January 22, 2004 had
previously been appended as Annex 2 to private respondents’ "Omnibus Motion A) for reconsideration of the
Decision dated 13 January 2004; b) to admit exhibits in refutation of the findings of fact of the Court; c) to have the
case set for hearing and/or reception of evidence if deemed necessary by the Court." The only difference is that this
time around, Comelec overlooked or failed to photocopy the last page (page 17) of the letter, bearing the signatures
of the four other purported "information technology experts."10 In other words, to support its present Motion, it
merely recycled an earlier exhibit that had already been used in seeking reconsideration of our aforesaid Decision.

While expressing utmost reverence for the finality of the Decision, Comelec implicitly seeks, nevertheless, to have
this Court take up anew matters that have already been passed upon and disposed of with finality.

It is a hornbook doctrine that courts are presumed to have passed upon all points that were raised by the parties in
their various pleadings, and that form part of the records of the case. Our Resolution, disposing of respondents’
arguments on reconsideration, did not explicitly and specifically address all of the matters raised in the said letter of
January 22, 2004. It is presumed however, that all matters within an issue raised in a case were passed upon by the
Court,11 as indeed they were in the instant case. And as we have held elsewhere,12 courts will refuse to reopen
what has been decided; they will not allow the same parties or their privies to litigate anew a question that has been
considered and decided with finality.

Besides, the letter of January 22, 2004, laden as it is with technical jargon and impressive concepts, does not serve
to alter by even the minutest degree our finding of grave abuse of discretion by Comelec, on account of its clear
violations of law and jurisprudence and its unjustifiable and reckless disregard of its own bidding rules and
procedures.

Furthermore, the letter would obviously not contain anything that might serve to persuade us that the situation
obtaining in January 2004 has so changed in the interim as to justify the use of the ACMs in August 2005.

The Commission seems to think that it can resurrect the dead case by waving at this Court a letter replete with
technical jargon, much like a witch doctor muttering unintelligible incantations to revive a corpse.

In its main text, the Motion concedes that our Decision "has become final and executory," and that all that remains to
be done is "to make mutual restitution."13 So, what is the relevance of all these useless argumentations and
pontifications in Annex 1 by the Commission’s self-proclaimed "experts"? For its own illegal acts, imprudence and
grave abuse of discretion, why blame this Court? For Comelec to know immediately which culprit should bear full
responsibility for its miserable failure to automate our elections, it should simply face the mirror.

Recovery of Government Funds Barred by the Motion

Second, the grant of the Motion will bar or jeopardize the recovery of government funds improvidently paid to
private respondents, funds that to date the OSG estimates to be over one billion pesos. At the very least, granting
the Motion will be antagonistic to the directive in our Decision for the OSG to recover the "illegal disbursements of
public funds made by reason of the void Resolution and Contract."

Indeed, if the government is conned into not returning the ACMs but instead keeping and utilizing them, there would
be no need for Mega Pacific to refund the payments made by Comelec. In fact, such recovery will no longer be
possible. Consequently, all those who stood to benefit (or have already benefited) financially from the deal would no
longer be liable for the refund. They can argue that there was nothing wrong with the voided Resolution and
Contract, nothing wrong with the public bidding, nothing wrong with the machines and software, since the
government has decided to keep and utilize them. This argument can be stretched to abate the criminal
prosecutions pending before the OMB and the impeachment proceedings it is considering. After all, "reasonable
doubt" is all that is needed to secure acquittal in a criminal prosecution.

In brief, the poll body’s Motion not only asks for what is legally impossible to do (to reverse and subvert a final and
executory Decision of the highest court of the land), but also prevents the Filipino people from recovering illegally
disbursed public funds running into billions of pesos. Verily, by subverting the Decision of this Court, the Motion
would be unduly favoring and granting virtual immunity from criminal prosecution to the parties responsible for the
illegal disbursement of scarce public funds.

Use of the ACMs and Software Detrimental to ARMM Elections

Third, the use of the unreliable ACMs and the nonexistent software that is supposed to run them will expose the
ARMM elections to the same electoral ills pointed out in our final and executory Decision. Be it remembered that this
Court expressly ruled that the proffered hardware and software had undeniably failed to pass eight critical
requirements designed to safeguard the integrity of elections, especially the following three items:

"· They failed to achieve the accuracy rating criterion of 99.9995 percent set up by the Comelec itself.

"· They were not able to detect previously downloaded results at various canvassing or consolidation levels and to
prevent these from being inputted again.

"· They were unable to print the statutorily required audit trails of the count/canvass at different levels without any
loss of data."14

The Motion has not at all demonstrated that these technical requirements have been addressed from the time our
Decision was issued up to now. In fact, Comelec is merely asking for leave to use the machines, without mentioning
any specific manner in which the foregoing requirements have been satisfactorily met.

Equally important, we stressed in our Decision that "[n]othing was said or done about the software -- the deficiencies
as to detection and prevention of downloading and entering previously downloaded data, as well as the capability to
print an audit trail. No matter how many times the machines were tested and retested, if nothing was done about the
programming defects and deficiencies, the same danger of massive electoral fraud remains."15

Other than vaguely claiming that its four so-called "experts" have "unanimously confirmed that the software
development which the Comelec undertook, [was] in line with the internationally accepted standards (ISO/IEC
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12207) [for] software life cycle processes," the present Motion has not shown that the alleged "software
development" was indeed extant and capable of addressing the "programming defects and deficiencies" pointed out
by this Court.

At bottom, the proposed use of the ACMs would subject the ARMM elections to the same dangers of massive
electoral fraud that would have been inflicted by the projected automation of the 2004 national elections.

Motion Inadequate and Vague

Fourth, assuming arguendo that the foregoing formidable legal, financial and technical obstacles could be
overcome or set aside, still, the Motion cannot be granted because it is vague; it does not contain enough details to
enable this Court to act appropriately.

The sham nature of the Motion is evident from the following considerations. While Comelec asserts a pressing need
for the ACMs to be used in the ARMM elections, strangely enough, it has not bothered to determine the number of
units that will be required for the purpose, much less tried to justify such quantification. It contracted for a total of
1,991 ACMs, intended for use throughout the entire country during the 2004 elections. Are we to believe that all
1,991 units would be utilized to count and canvass the votes cast in the ARMM elections? Such a scenario is highly
unlikely, even ridiculous.

A genuine, bona fide proposal for the utilization of the ACMs would naturally have included a well-thought-out plan
of action, indicating the number of units to be deployed, places of utilization, number of operators and other
personnel required, methods/periods of deployment and recovery or retrieval, assessments of costs and risks
involved in implementing the proposal, and concomitant justifications, among other things. Now, either "The Plan" is
being kept absolutely top secret, or it is completely nonexistent.

Furthermore, once the ACMs are deployed and utilized, they will no longer be in the same condition as when they
were first delivered to Comelec. In fact, it is quite probable that by the time election day comes around, some of the
machines would have been mishandled and damaged, maybe even beyond repair. What steps has the poll body
taken to make certain that such eventualities, if not altogether preventable, can at least be minimized so as to
ensure the eventual return of the ACMs and the full recovery of the payments made for them? A scrutiny of the 4-
page Motion16 ends in futility. It is all too clear that a failure or inability of Comelec to return the machines sans
damage would most assuredly be cited as a ground to refuse the refund of the moneys paid. Yet, if Comelec has
given any thought at all to this or any other contingency, such fact has certainly not been made evident to us.

ARMM Elections Not Jeopardized by Nonuse of ACMs

Fifth, there is no basis for the claim that unless the subject ACMs are used, the ARMM elections would not be held.

At the outset, if such elections are not held, the blame must be laid squarely at the doorstep of Comelec. To stress,
had it not gravely abused its discretion, the automation of the vote counting and canvassing processes would have
already become a reality over a year ago, and the ACMs that would have been used in the 2004 national elections
would now be available for the ARMM elections.

In any event, the Commission in its Motion argues that the government, given its present fiscal difficulties, has no
available funds to finance the automation of the ARMM elections. Without even asking under what authority it has
assumed the role of Treasury spokesman, we emphasize that there would not now be any lack of funds for election
automation had it not improvidently turned over ₱1 billion of taxpayers’ moneys to Mega Pacific’s bank accounts.

Nevertheless, had the poll body been honestly and genuinely intent on implementing automated counting and
canvassing for the ARMM elections, it ought to have informed Congress of the non-availability of the subject ACMs
due to our Decisions and of the need for special appropriations, instead of wasting this Court’s time on its
unmeritorious Motion. In fact, if only it had taken proper heed of our Decision of January 13, 2004, it could have
conducted an above-board public bidding for the supply of acceptable ACMs.

Certainly, this option or course of action was not foreclosed by our Decision. Moreover, there was sufficient time
within which to conduct the public bidding process. RA 9333, which set the second Monday of August 2005 (August
8, 2005) as the date of the ARMM elections, was enacted on September 21, 2004. Undoubtedly, Comelec was
made aware of the proposed date of the ARMM elections way before the passage of RA 9333. Thus, the poll body
had about ten (10) months at the very least (between the end of September 2004, when RA 9333 came into force
and effect, and August 8, 2005) to lobby Congress, properly conduct a public bidding, award the appropriate
contracts, deliver and test the new machines, and make final preparations for the election.

Even assuming that a new public bidding for ACMs was not a viable option, still, Comelec has had more than
sufficient lead time -- about ten months counted from the end of September 2004 until August 8, 2005 -- to prepare
for manual counting and canvassing in the ARMM elections. It publicly declared, sometime in late January 2004,
that notwithstanding our Decision nullifying the Mega Pacific Contract, it would still be able to implement such
manualization for the May 10, 2004 national elections. It made this declaration even though it had a mere three
months or so to set up the mechanics. In this present instance involving elections on a much smaller scale, it will
definitely be able to implement manual processes if it wants to.

There is therefore absolutely no basis for any apprehension that the ARMM elections would not push through simply
because the present Motion cannot pass muster. More to the point, it would be ridiculous to regard the grant of
permission to use the subject ACMs as the conditio sine qua non for the holding of the ARMM elections.

What is most odious is the resort to the present Motion seeking the use of the subject ACMs despite the availability
of viable alternative courses of action17 that will not tend to disturb or render this Court’s final Decision ineffectual.
Thus, the present Motion is wholly unnecessary and unwarranted. Upon it, however has Comelec pinned all its
hopes, instead of focusing on what the poll body can and ought to do under the circumstances. The consequences
of granting its lamentable Motion, we repeat, will indubitably subvert and thwart the Decision of this Court in the
instant case.

Equally reprehensible is the attempt of the Commission to pass the onus of its mismanagement problems on to this
Court. For instance, the Motion quotes the cost of storage of the ACMs in its Maxilite Warehouse at ₱329,355.26
per month or ₱3,979,460.24 per annum. Assuming for the nonce that the machines have to be held in storage
pending the decision in the civil case (as it would simply not do to throw the machines out into the streets), why must
it assume the cost of storage? Per our Decision, the machines are to be returned to Mega Pacific. If it refuses to
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accept them back, it does not follow that Comelec must pick up the tab. Instead of further wasting the taxpayers’
money, it can simply send the bill to Mega Pacific for collection.

It would be entirely improper, bordering on unmitigated contempt of court, for the Commission to try to pass on the
problem to this Court through its Motion.

No Actual Case or Controversy

Finally, the Motion presents no actual justiciable case or controversy over which this Court can exercise its judicial
authority. It is well-established in this jurisdiction that "x x x for a court to exercise its power of adjudication, there
must be an actual case or controversy -- one which involves a conflict of legal rights, an assertion of opposite legal
claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other
similar considerations not cognizable by a court of justice. x x x [C]ourts do not sit to adjudicate mere academic
questions to satisfy scholarly interest, however intellectually challenging."18 The controversy must be justiciable --
definite and concrete, touching on the legal relations of parties having adverse legal interests.19 In other words, the
pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the
other; that is, it must concern a real and not a merely theoretical question or issue.20 There ought to be an actual
and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from
an opinion advising what the law would be upon a hypothetical state of facts.21

A perusal of the present Motion will readily reveal the utter absence of a live case before us, involving a clash of
legal rights or opposing legal claims. At best, it is merely a request for an advisory opinion, which this Court has no
jurisdiction to grant.22

EPILOGUE

We close this Resolution by repeating the last two paragraphs of our final and executory Decision:

"True, our country needs to transcend our slow, manual and archaic electoral process. But before it can do so, it
must first have a diligent and competent electoral agency that can properly and prudently implement a well-
conceived automated election system.

"At bottom, before the country can hope to have a speedy and fraud-free automated election, it must first be able to
procure the proper computerized hardware and software legally, based on a transparent and valid system of public
bidding. As in any democratic system, the ultimate goal of automating elections must be achieved by a legal, valid
and above-board process of acquiring the necessary tools and skills therefor. Though the Philippines needs an
automated electoral process, it cannot accept just any system shoved into its bosom through improper and illegal
methods. As the saying goes, the end never justifies the means. Penumbral contracting will not produce enlightened
results."23

Comelec must follow and not skirt our Decision. Neither may it short-circuit our laws and jurisprudence. It should
return the ACMs to MPC-MPEI and recover the improvidently disbursed funds. Instead of blaming this Court for its
illegal actions and grave abuse of discretion, the Commission should, for a change, devise a legally and technically
sound plan to computerize our elections and show our people that it is capable of managing the transition from an
archaic to a modern electoral system.

WHEREFORE, the Motion is hereby DENIED for utter lack of merit.

SO ORDERED.

ARTEMIO V. PANGANIBAN
Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.

Chief Justice

REYNATO S. PUNO LEONARDO A. QUISUMBING

Associate Justice Associate Justice

CONSUELO YNARES-SANTIAGO ANGELINA SANDOVAL-GUTIERREZ

Associate Justice Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice Associate Justice

ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

CANCIO C. GARCIA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.
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HILARIO G. DAVIDE, JR.

Chief Justice

Footnotes

1 419 SCRA 141, January 13, 2004.

2 "As a necessary consequence of such nullity and illegality, the purchase of the machines and all
appurtenances thereto including the still-to-be-produced (or in Comelec’s words, to be ‘reprogrammed’)
software, as well as all the payments made therefor, have no basis whatsoever in law. The public funds
expended pursuant to the void Resolution and Contract must therefore be recovered from the payees and/or
from the persons who made possible the illegal disbursements, without prejudice to possible criminal
prosecutions against them.

"Furthermore, Comelec and its officials concerned must bear full responsibility for the failed bidding and
award, and held accountable for the electoral mess wrought by their grave abuse of discretion in the
performance of their functions. The State, of course, is not bound by the mistakes and illegalities of its
agents and servants." (Id., pp. 203-204.)
3 The Comelec Motion expressly recognizes this fact on page 2, which we quote:

"Since the Decision has become final and executory, COMELEC and MPC-MPEI are under obligation
to make mutual restitution."
4 The dispositive portion of our Decision reads:

"WHEREFORE, the Petition is GRANTED. The Court hereby declares NULL and VOID Comelec
Resolution No. 6074 awarding the contract for Phase II of the AES [Automated Election System] to
Mega Pacific Consortium (MPC). Also declared null and void is the subject Contract executed between
Comelec and Mega Pacific eSolutions (MPEI). Comelec is further ORDERED to refrain from
implementing any other contract or agreement entered into with regard to this project.

"Let a copy of this Decision be furnished the Office of the Ombudsman which shall determine the
criminal liability, if any, of the public officials (and conspiring private individuals, if any) involved in the
subject Resolution and Contract. Let the Office of the Solicitor General also take measures to protect
the government and vindicate public interest from the ill effects of the illegal disbursements of public
funds made by reason of the void Resolution and Contract."
5 402 SCRA 612, May 5, 2003 and 420 SCRA 575, January 21, 2004.

6 Art. VIII, Sec. 1, par. 2, 1987 Constitution.

7 Philippine Veterans Bank v. Estrella, 405 SCRA 168, June 27, 2003. While there are recognized exceptions
to the rule -- viz., the correction of clerical errors, nunc pro tunc entries that cause no prejudice to any party,
and of course when the judgment is void -- movants have not claimed or shown that any such exceptions
apply here.

8 There are actually more than four signatories, as will be explained presently.

9 They are Nelson J. Celis, Ma. Elena P. Van Tooren, Antonio G. Tinsay and Carlos Manuel.

10 The latter four are Romeo Monteclaro, Allan Borra, Ma. Leonora Padero and Alfonso Palpal-latoc Jr.

11 Rule 131, Sec. 3(o) of the Rules of Court. See Toh v. Solid Bank Corporation, 408 SCRA 544, August 7,
2003.

12 Vide Heirs of De Leon vda. de Roxas v. CA, 422 SCRA 101, February 6, 2004 (citing Buaya v. Stronghold
Insurance Co., Inc., 342 SCRA 576, October 11, 2000.)

13 Comelec Motion, p. 2.

14 Decision, supra, p. 148.

15 Id., p. 193; italics in the original.

16 The text of the main Motion contains only four pages, not counting the annexes thereof.

17 For instance, during the 13th International Judicial Conference held in Kiev, Ukraine, on May 25-27, 2005,
Carlos Velloso, president of the Superior Electoral Tribunal of Brazil, publicly offered the free use of the
automated counting machines that had been successfully utilized in the automation of the elections in that
country, which has many more voters than the Philippines.
18 Republic v. Tan, 426 SCRA 485, March 30, 2004, per Carpio Morales, J.

19 See Aetna Life Insurance Co. v. Hayworth, 300 U.S. 227 (1937).

20 Vide: De Lumen v. Republic, 50 OG No. 2, February 14, 1952, p. 578.

21 Aetna Life Insurance Co. v. Hayworth, supra.

22 See also Automotive Industry Workers Alliance v. Romulo, GR No. 157509, January 18, 2005.

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23 Decision, supra, p. 204.

The Lawphil Project - Arellano Law Foundation

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