GMA NETWORK, INC., et al v.
COMMISSION ON ELECTIONS constitutional guaranty of freedom of expression, of speech and of the
G.R.Nos. 205357, 205374, 205592, 205852, and 206360, 2 September
2014, EN BANC, (Peralta, J.)
Political speech is one of the most important expressions protected
by the Fundamental Law. “Freedom of speech, of expression, and of the
press are at the core of civil liberties and have to be protected at all costs for
the sake of democracy.” The “aggregate-based” airtime limits is
unreasonable and arbitrary as it unduly restricts and constrains the ability of
candidates and political parties to reach out and communicate with the
people.
Resolution 9615 of the Commission on Elections (COMELEC)
changed the airtime limitations for political campaign from “per station” basis,
as used during the 2007 and 2010 elections, to a “total aggregate” basis for
the 2013. Various broadcast networks such as ABS-CBN, ABC, GMA, MBC,
NBN, RMN and KBP questioned the interpretation of the COMELEC on the
ground that the provisions are oppressive and violative of the constitutional
guarantees of freedom of expression and of the press.
Collectively, they question the constitutionality of Section 9 (a),
which provides for an “aggregate total” airtime instead of the previous “per
station” airtime for political campaigns or advertisements, and also required
prior COMELEC approval for candidates' television and radio guestings and
appearances. Petitioners claim that Section 9(a) limits the computation of
“aggregate total” airtime and imposes unreasonable burden on broadcast
media of monitoring a candidate’s or political party’s aggregate airtime. On
the other hand, COMELEC alleges that the broadcast networks do not have
locus standi, as the limitations are imposed on candidates, not on media
outlets.
Comelec maintains that the per candidate rule or total aggregate
airtime limit is in accordance with the Fair Election Act as this would truly
give life to the constitutional objective to equalize access to media during
elections. It sees this as a more effective way of "levelling the playing field"
between candidates/political parties with enormous resources and those
without much.
ISSUES:
1. Does Section 9(a) of Comelec Resolution No. 9615 on airtime limit violate
the
press?
2. Does resolution No. 9165 impose unreasonable burden on the broadcast
industry?
RULING:
1. Yes, Section 9(a) of COMELEC Resolution No. 9615, with its
adoption of the “aggregate-based” airtime limits unreasonably restricts
the guaranteed freedom of speech and of the press.
Political speech is one of the most important expressions protected
by the Fundamental Law. “Freedom of speech, of expression, and of the
press are at the core of civil liberties and have to be protected at all costs for
the sake of democracy.”
GMA came up with its analysis of the practical effects of such a
regulation: Given the reduction of a candidate’s airtime minutes in the New
Rules, petitioner GMA estimates that a national candidate will only have 120
minutes to utilize for his political advertisements in television during the
whole campaign period of 88 days, or will only have 81.81 seconds per day
TV exposure allotment. If he chooses to place his political advertisements in
the 3 major TV networks in equal allocation, he will only have 27.27 seconds
of airtime per network per day. This barely translates to 1 advertisement spot
on a 30-second spot basis in television.
The Court agrees. The assailed rule on “aggregate-based” airtime
limits is unreasonable and arbitrary as it unduly restricts and constrains the
ability of candidates and political parties to reach out and communicate with
the people. Here, the adverted reason for imposing the “aggregate-based”
airtime limits – leveling the playing field – does not constitute a compelling
state interest which would justify such a substantial restriction on the
freedom of candidates and political parties to communicate their ideas,
philosophies, platforms and programs of government.
2. No, Resolution No. 9615 does not impose an unreasonable
burden on the broadcast industry.
The Court cannot agree with the contentions of GMA. The
apprehensions of COMELEC appear more to be the result of a
misappreciation of the real import of the regulation rather than a real and
present threat to its broadcast activities. The Court is more in agreement
with COMELEC when it explained that the legal duty of monitoring lies with
the COMELEC. Broadcast stations are merely required to submit certain
documents to aid the COMELEC in ensuring that candidates are not sold
airtime in excess of the allowed limits. There is absolutely no duty on the
broadcast stations to do monitoring, much less monitoring in real time. GMA
grossly exaggerates when it claims that the non-existent duty would require
them to hire and train an astounding additional 39,055 personnel working on
eight-hour shifts all over the country.
Macalintal vs. COMELEC
G.R. No. 157013. July 10, 2003 Suffrage, Overseas Absentee Voting
JANUARY 27, 2018
FACTS:
This is a petition for certiorari and prohibition filed by Romulo B.
Macalintal, a member of the Philippine Bar, seeking a declaration that certain
provisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of
2003) suffer from constitutional infirmity. Claiming that he has actual and
material legal interest in the subject matter of this case in seeing to it that
public funds are properly and lawfully used and appropriated, petitioner filed
the instant petition as a taxpayer and as a lawyer.
Petitioner posits that Section 5(d) is unconstitutional because it
violates Section 1, Article V of the 1987 Constitution which requires that the
voter must be a resident in the Philippines for at least one year and in the
place where he proposes to vote for at least six months immediately
preceding an election. Petitioner cites the ruling of the Court in Caasi vs.
Court of Appeals to support his claim. In that case, the Court held that a
green card holder immigrant to the United States is deemed to have
abandoned his domicile and residence in the Philippines.
Petitioner further argues that Section 1, Article V of the Constitution
does not allow provisional registration or a promise by a voter to perform a
condition to be qualified to vote in a political exercise; that the legislature
should not be allowed to circumvent the requirement of the Constitution on
the right of suffrage by providing a condition thereon which in effect amends
or alters the aforesaid residence requirement to qualify a Filipino abroad to
vote. He claims that the right of suffrage should not be granted to anyone
who, on the date of the election, does not possess the qualifications
provided for by Section 1, Article V of the Constitution.
ISSUE:
Is RA 9189 [Overseas Absentee Voting Act of 2003], valid &
constitutional?
RULING:
Contrary to petitioner’s claim that Section 5(d) circumvents the
Constitution, Congress enacted the law prescribing a system of overseas
absentee voting in compliance with the constitutional mandate. Such
mandate expressly requires that Congress provide a system of absentee
voting that necessarily presupposes that the “qualified citizen of the
Philippines abroad” is not physically present in the country.
The petition was partly GRANTED. The following portions of R.A.
No. 9189 are declared VOID for being UNCONSTITUTIONAL:
a) The phrase in the first sentence of the first paragraph of Section 17.1, to
wit: “subject to the approval of the Joint Congressional Oversight
Committee;”
b) The portion of the last paragraph of Section 17.1, to wit: “only upon review
and approval of the Joint Congressional Oversight Committee;”
c) The second sentence of the first paragraph of Section 19, to wit: “The
Implementing Rules and Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue of this Act for prior
approval;” and
d) The second sentence in the second paragraph of Section 25, to wit: “It
shall review, revise, amend and approve the Implementing Rules and
Regulations promulgated by the Commission” of the same law;
for being repugnant to Section 1, Article IX-A of the Constitution mandating
the independence of constitutional commission, such as COMELEC.
Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said
law continues to be in full force and effect.
TOLENTINO & MOJICA vs. COMELEC, RECTO & HONASAN
G.R. No. 148334
January 21, 2004
This is a petition for prohibition to set aside Resolution No. NBC 01-
005 dated 5 June 2001 (“Resolution No. 01-005”) and Resolution No. NBC
01-006 dated 20 July 2001 (“Resolution No. 01-006”) of respondent
Commission on Elections (“COMELEC”). Resolution No. 01-005 proclaimed
the 13 candidates elected as Senators in the 14 May 2001 elections while
Resolution No. 01-006 declared “official and final” the ranking of the 13
Senators proclaimed in Resolution No. 01-005.
Facts:
Following the appointment of Senator Teofisto Guingona as Vice-
President of the Philippines, the Senate on February 8, 2001 passed
Resolution No. 84, calling on COMELEC to fill the vacancy through a special
election to be held simultaneously with the regular elections on May 14,
2001. Twelve senators, with 6-year term each, were due to be elected in that
election. The resolution further provides that the “Senatorial candidate
garnering the 13th highest number of votes shall serve only for the unexpired
term of former Senator Teofisto Guingona, Jr. which ends on June 30, 2004.
On June 5, 2001, after canvassing the election results, the
COMELEC proclaimed 13 candidates as the elected Senators, with the first
12 Senators to serve the unexpired term of 6 years and the 13th Senator to
serve the full term of 3 years of Senator Teofisto Guingona, Jr. Gregorio
Honasan ranked 13th.
Petitioners Arturo Tolentino and Arturo Mojica, as voters and
taxpayers, filed the instant petition for prohibition, praying for the nullification
of Resolution No. 01-005. They contend that COMELEC issued Resolution
01-005 without jurisdiction because: (1) it failed to notify the electorate of the
position to be filled in the special election as required under Section 2 of RA
6645; (2) it failed to require senatorial candidates to indicate in their
certificates of candidacy whether they seek election under the special or
regular elections as allegedly required under Section 73 of BP 881; and,
consequently, (3) it failed to specify in the Voters Information Sheet the
candidates seeking election under the special or regular senatorial elections
as purportedly required under Section 4, paragraph 4 of RA 6646. Tolentino
and Mojica add that because of these omissions, COMELEC canvassed all
the votes cast for the senatorial candidates in the 14 May 2001 elections
without distinction such that “there were no two separate Senate elections
held simultaneously but just a single election for thirteen seats, irrespective
of term.” Tolentino and Mojica sought the issuance of a temporary
restraining order during the pendency of their petition. Without issuing any
restraining order, the Supreme Court required COMELEC to Comment on
the petition. Honasan questioned Tolentino’s and Mojica's standing to bring
the instant petition as taxpayers and voters because they do not claim that
COMELEC illegally disbursed public funds; nor claim that they sustained
personal injury because of the issuance of Resolutions 01-005 and 01-006.
Issue:
WON the Special Election held on May 14, 2001 should be nullified:
(1) for failure to give notice by the body empowered to and
(2) for not following the procedure of filling up the vacancy pursuant to R.A.
6645.
Decision:
WHEREFORE, we DISMISS the petition for lack of merit.
Ratio Decidendi:
(1) Where the law does not fix the time and place for holding a special
election but empowers some authority to fix the time and place after the
happening of a condition precedent, the statutory provision on the giving of
notice is considered mandatory, and failure to do so will render the election a
nullity.
The test in determining the validity of a special election in relation to
the failure to give notice of the special election is whether want of notice has
resulted in misleading a sufficient number of voters as would change the
result of special election. If the lack of official notice misled a substantial
number of voters who wrongly believed that there was no special election to
fill vacancy, a choice by small percentage of voters would be void.
(2) There is no basis in the petitioners’ claim that the manner by which
the COMELEC conducted the special Senatorial election on May 14, 2001 is
a nullity because the COMELEC failed to document separately the
candidates and to canvass separately the votes cast for the special election.
No such requirement exists in our election laws. What is mandatory under
Section 2 of R.A. 6645 is that the COMELEC “fix the date of election,” if
necessary, and state among others, the office/s to be voted for.
Significantly, the method adopted by the COMELEC in conducting
the special election on May 14, 2001 merely implemented the procedure
specified by the Senate in Resolution No. 84. Initially, the original draft of
said resolution as introduced by Senator Francisco Tatad made no mention
of the manner by which the seat vacated by former Senator Guingona would
be filled. However, upon the suggestion of Senator Raul Roco, the Senate
agreed to amend the resolution by providing as it now appears, that “the
senatorial cabdidate garnering the 13th highest number of votes shall serve
only for the unexpired term of former Senator Teofisto Giongona, Jr.”
Article VI, Sec. 9 (Special Election)
TOLENTINO v. COMELEC
GR 1488334 (01/21/04)
Facts:
Pres. GMA, after her succession to the presidency in 2001,
nominated Senator Guingona as Vice-President, thus, leaving a vacancy in
the Senate. The Senate passed Res. 84 calling on COMELEC to fill the said
vacancy through a special election to be held SIMULTANEOUSLY with the
regular elections on May the same year. 12 senators each with a 6-yr term
were to be elected. Res. 84 provided that the candidate with the 13 th highest
number of votes shall serve for the unexpired term of former Sen. Guingona
(3 years).
Gregorio Honasan ranked 13th in the polls. COMELEC issued Res.
01-005 provisionally proclaiming the 12 senators (with 6-yr terms) and the
13th senator (for the unexpired term).
Petitioners (Tolentino and Mojica) filed a petition for prohibition
against COMELEC, enjoining them from the final proclamation the 13th
senator, and prayed for the nullification of Res. 01-005.
Issues:
1. Procedural: WON petition is actually for quo warranto to be decided by the
Senate Electoral tribunal (and not the SC)
2. On the merits: WON the special election was held validly:
a. WON Comelec’s failure to give notice as to the time of the
special election negate the calling of said election
b. WON Comelec’s failure to give notice of office to be filled and the
manner of determining the winner misled voters
c. WON separate canvassing and documentation for the special
election was required
Held:
1. No. The petitioner does not seek to determine Honasan’sright in the
exercise of his office in the Senate. What the petitioners allege is
COMELEC’s failure to comply with certain requirements pertaining to the
conduct of the special election. Hence, the court has jurisdiction.
2. Yes. Special election was held validly. Hence, petition has no merit.
a. No. Sec. 2 of RA 6645 (which was passed to implement
art 6, sec. 9 of the constitution), EXPRESSLY PROVIDES that in
case of a vacancy in the Senate, the special election shall be held
simultaneously with the next succeeding regular election. In a special
election, the rule is that if a statute expressly provides that an election to fill
the vacancy shall be held at the next regular election, the statute FIXES the
date, hence, the election is NOT INVALIDATED by the fact that the body
charged by law with the duty (in this case, COMELEC) failed to do so. (as
opposed to if the law does not fix the time and place but empowers some
authority to fix those, the statutory provision on the giving of notice is
considered mandatory and failure to do so will make election void) The
law then charges the voters with knowledge of the statutory notice and
COMELEC’s failure to give additional notice does not negate the election.
b. No. The test in determining the validity of a special
election in relation to the failure to give notice is whether the lack of notice
resulted in misleading a sufficient number of voters. The petitioners were
not able to prove that COMELEC’s failure to give the notice misled a
sufficient number of voters as would change the result of the vote.
 c. No. No such requirements exist. What is mandatory under
RA 6645 is for COMELEC to fix the date if necessary and state the
office/s to be voted for. The method adopted by COMELEC merely
implemented RA No.84 that “the senatorial candidate garnering the 13th
highest number of votes shall serve only for the unexpired term of
former Sen. Guingona” (an amendment introduced by Sen. Roco)
“WHEREFORE, we DIMISS the petition for lack of merit. So
ordered.”
(Note however, that SC reminded COMELEC to comply strictly with all the
requirements under applicable laws relative to the conduct of elections)
______________
A quo warranto proceeding is one that determines the right of a public officer
in the exercise of his office
BANAT v. COMELEC
August 7, 2009
Facts:
This is a petition for Prohibition with a prayer for the issuance of a
temporary restraining order or a writ of preliminary injunction filed by
petitioner Barangay Association for National Advancement and
Transparency (BANAT) Party List (petitioner) assailing the constitutionality of
Republic Act No. 9369 (RA 9369) and enjoining respondent Commission on
Elections (COMELEC) from implementing the statute.
RA 9369 is a consolidation of Senate Bill No. 2231 and House Bill
No. 5352 passed by the Senate on 7 December 2006 and the House of
Representatives on 19 December 2006.On 23 January 2007, less than four
months before the 14 May 2007 local elections.
On 7 May 2007, petitioner, a duly accredited multi-sectoral
organization, filed this petition for prohibition alleging that RA 9369 violated
Section 26(1), Article VI of the Constitution. Petitioner also assails the
constitutionality of Sections 34, 37, 38, and 43 of RA 9369.According to
petitioner, these provisions are of questionable application and doubtful
validity for failing to comply with the provisions of the Constitution.
Petitioner argues the following:
1. the title of RA 9369 is misleading because it speaks of poll automation but
contains substantial provisions dealing with the manual canvassing of
election returns. Petitioner also alleges that Sections 34, 37, 38, and 43are
neither embraced in the title nor germane to the subject matter of RA 9369.
2. Sections 37 and 38 violate the Constitution by impairing the powers of the
Presidential Electoral Tribunal (PET) and the Senate Electoral Tribunal
(SET). According to petitioner, under the amended provisions, Congress as
the National Board of Canvassers for the election of President and Vice
President (Congress), and the COMELEC en banc as the National Board of
Canvassers (COMELEC en banc), for the election of Senators may now
entertain pre-proclamation cases in the election of the President, Vice
President, and Senators. Petitioner concludes that in entertaining pre-
proclamation cases, Congress and the COMELEC en banc undermine the
independence and encroach upon the jurisdiction of the PET and the SET.
3. Section 43 is unconstitutional because it gives the other prosecuting arms
of the government concurrent power with the COMELEC to investigate and
prosecute election offenses.
4. Section 34 which fixes the per diem of poll watchers of the dominant
majority and dominant minority parties at Pon election day. Petitioner argues
that this violates the freedom of the parties to contract and their right to fix
the terms and conditions of the contract they see as fair, equitable and just.
Petitioner adds that this is a purely private contract using private funds which
cannot be regulated by law.
Issue/s:
1. Whether or not RA 9369 is unconstitutional.
2. Sections 37 and 38 violate Section 17, Article VI and Paragraph 7, Section
4, Article VII of the Constitution;
3. Section 43 violates Section 2(6), Article IX-C of the Constitution
4. Section 34 violates Section 10, Article III of the Constitution
Ruling: The petition is denied. RA 9369 is constitutional.
1. RA 9369 is an amendatory act entitled An Act Amending Republic
Act No. 8436, Entitled An Act Authorizing the Commission on Elections to
Use an Automated Election System in the May 11, 1998 National or Local
Elections and in Subsequent National and Local Electoral Exercises, to
Encourage Transparency, Credibility, Fairness and Accuracy of Elections,
Amending for the Purpose Batas Pambansa Blg. 881, as Amended,
Republic Act No. 7166 and Other Related Election Laws, Providing Funds
Therefor and For Other Purposes. Clearly, the subject matter of RA 9369
covers the amendments to RA 8436, Batas Pambansa Blg. 881 (BP 881),
Republic Act No. 7166 (RA 7166), and other related election laws to achieve
its purpose of promoting transparency, credibility, fairness, and accuracy in
the elections. The provisions of RA 9369 assailed by petitioner deal with
amendments to specific provisions of RA 7166 and BP 881, specifically: (1)
Sections 34, 37 and 38 amend Sections 26, 30 and 15 of RA 7166,
respectively; and(2) Section 43 of RA 9369 amends Section 265 of BP
881.Therefore, the assailed provisions are germane to the subject matter of
RA 9369 which is to amend RA 7166 and BP 881, among others.
2. The COMELEC maintains that the amendments introduced by
Section 37 pertain only to the adoption and application of the procedures on
pre-proclamation controversies in case of any discrepancy, incompleteness,
erasure or alteration in the certificates of canvass. The COMELEC adds that
Section 37 does not provide that Congress and the COMELEC en banc may
now entertain pre-proclamation cases for national elective posts.
3. Section 2(6), Article IX-C of the Constitution vests in the COMELEC
the power to investigate and, where appropriate, prosecute cases of
violations of election laws, including acts or omissions constituting election
frauds, offenses, and malpractices. COMELEC has the exclusive power to
conduct preliminary investigations and prosecute election offenses, it
likewise authorizes the COMELEC to avail itself of the assistance of other
prosecuting arms of the government. In the 1993 COMELEC Rules of
Procedure, the authority of the COMELEC was subsequently qualified and
explained.
4. The OSG argues that petitioner erroneously invoked the non-
impairment clause because this only applies to previously perfected
contracts. In this case, there is no perfected contact and, therefore, no
obligation will be impaired. Both the COMELEC and the OSG argue that the
law is a proper exercise of police power and it will prevail over a contract.
According to the COMELEC, poll watching is not just an ordinary contract
but is an agreement with the solemn duty to ensure the sanctity of votes.
The role of poll watchers is vested with public interest which can be
regulated by Congress in the exercise of its police power. The OSG further
argues that the assurance that the poll watchers will receive fair and
equitable compensation promotes the general welfare. The OSG also states
that this was a reasonable regulation considering that the dominant majority
and minority parties will secure a copy of the election returns and are given
the right to assign poll watchers inside the polling precincts.
Note/s:
1. Section 34 which provides:
SEC. 34. Sec. 26 of Republic Act No. 7166 is hereby amended to
cralawread as follows:
SEC. 26. Official Watchers. - Every registered political party or coalition of
political parties, and every candidate shall each be entitled to one watcher in
every polling place and canvassing center: Provided That, candidates for the
Sangguniang Panlalawigan, Sangguniang Panlunsod, or Sangguniang
Bayan belonging to the same slate or ticket shall collectively be entitled to
only one watcher.
The dominant majority party and dominant minority party, which the
Commission shall determine in accordance with law, shall each be entitled to
one official watcher who shall be paid a fixed per diem of four hundred pesos
(400.00)
There shall also recognized six principal watchers, representing the six
accredited major political parties excluding the dominant majority and
minority parties, who shall be designated by the Commission upon
nomination of the said parties. These political parties shall be determined by
the Commission upon notice and hearing on the basis of the following
circumstances:
(a) The established record of the said parties, coalition of groups that now
composed them, taking into account, among other things, their showing in
past election;
(b) The number of incumbent elective officials belonging to them ninety
cralaw(90) days before the date of election;
(c) Their identifiable political organizations and strengths as evidenced by
their organized/chapters;
(d) The ability to fill a complete slate of candidates from the municipal level
to the position of President; and
(e) Other analogous circumstances that may determine their relative
organizations and strengths.
Section 37 which provides:
SEC. 37.Section 30 of Republic Act No. 7166 is hereby amended to read as
follows:
SEC. 30. Congress as the National Board of Canvassers for the Election of
President and Vice President: The Commission en banc as the National
Board of Canvassers for the election of senators: Determination of
Authenticity and Due Execution of Certificates of Canvass. Congress and the
Commission en banc shall determine the authenticity and due execution of
the certificate of canvass for president and vice president and senators,
respectively, as accomplished and transmitted to it by the local boards of
canvassers, on a showing that: (1) each certificate of canvass was executed,
signed and thumbmarked by the chairman and members of the board of
canvassers and transmitted or caused to be transmitted to Congress by
them; (2) each certificate of canvass contains the names of all of the
candidates for president and vice president or senator, as the case may be,
and their corresponding votes in words and their corresponding votes in
words and in figures; (3) there exits no discrepancy in other authentic copies
of the certificates of canvass or any of its supporting documents such as
statement of votes by city/municipality/by precinct or discrepancy in the
votes of any candidate in words and figures in the certificate; and (4) there
exist no discrepancy in the votes of any candidate in words and figures in the
certificates of canvass against the aggregate number of votes appearing in
the election returns of precincts covered by the certificate of canvass:
Provided, That certified print copies of election returns or certificates of
canvass may be used for the purpose of verifying the existence of the
discrepancy.
When the certificate of canvass, duly certified by the board of canvassers of
each province, city of district, appears to be incomplete, the Senate
President or the Chairman of the Commission, as the case may be, shall
require the board of canvassers concerned to transmit by personal delivery,
the election returns form polling places that were not included in the
certificate of canvass and supporting statements. Said election returns shall
be submitted by personal delivery within two (2) days from receipt of notice.
When it appears that any certificate of canvass or supporting statement of
votes by city/municipality or by precinct bears erasures or alteration which
may cast doubt as to the veracity of the number of votes stated herein and
may affect the result of the election, upon requested of the presidential, vice
presidential or senatorial candidate concerned or his party, Congress or the
Commission en banc, as the case may be shall, for the sole purpose of
verifying the actual number of votes cast for president, vice president or
senator, count the votes as they appear in the copies of the election returns
submitted to it.
In case of any discrepancy, incompleteness, erasure or alteration as
mentioned above, the procedure on pre-proclamation controversies shall be
adopted and applied as provided in Section 17,18,19 and 20.
Any person who present in evidence a simulated copy of an election return,
certificate of canvass or statement of votes, or a printed copy of an election
return, certificate of canvass or statement of votes bearing a simulated
certification or a simulated image, shall be guilty of an election offense shall
be penalized in accordance with Batas Pambansa Blg. 881. cralaw
Section 38 which provides:
38. Section 15 of Republic Act No. 7166 is hereby amended to read as
follows:
15. Pre-proclamation Cases in Elections for President, Vice President,
Senator, and Member of the House of Representatives. - For purposes of
the elections for president, vice president, senator, and member of the
House of Representatives, no pre-proclamation cases shall be allowed on
matters relating to the preparation, transmission, receipt, custody and
appreciation of election returns or the certificates of canvass, as the case
may be, except as provided for in Section 30 hereof.However, this does not
preclude the authority of the appropriate canvassing body motu proprio or
upon written complaint of an interested person to correct manifest errors in
the certificate of canvass or election returns before it.
Questions affecting the composition or proceedings of the board
ofcanvassers may be initiated in the board or directly with the Commission in
accordance with Section 19 hereof.
Any objection on the election returns before the city or municipal board of
canvassers, or on the municipal certificates of canvass before the provincial
board of canvassers or district board of canvassers in Metro Manila Area,
shall be specifically noticed in the minutes of the respective proceedings.
Section 43 which provides:
43. Section 265 of Batas Pambansa Blg. 881 is hereby amended to read as
follows:
SEC. 265. Prosecution. The Commission shall, through its duly authorized
legal officers, have the power, concurrent with the other prosecuting arms of
the government, to conduct preliminary investigation of all election offenses
punishable under this Code, and to prosecute the same.
CENTER FOR PEOPLE EMPOWERMENT IN GOVERNANCE (CenPEG),
Petitioner, vs. COMMISSION ON ELECTIONS (COMELEC), Respondent.
Nature of the case:
This case concerns the duty of the Commission on Elections
(COMELEC) to disclose the source code for the Automated Election System
(AES) technologies it used in the 2010 national and local elections
Petitioner:
On May 26, 2009 petitioner Center for People Empowerment in
Governance (CenPEG), a non-government organization,1 wrote respondent
COMELEC, requesting a copy of the source code of the Precinct Count
Optical Scan (PCOS) programs, the Board of Canvassers
Consolidation/Canvassing System (BOC CCS) programs for the municipal,
provincial, national, and congressional canvass, the COMELEC server
programs, and the source code of the in-house COMELEC programs called
the Data Capturing System (DCS) utilities.
CenPEG invoked the following pertinent portion of Section 12 of
Republic Act (R.A.) 9369, which provides:
“Once an AES technology is selected for implementation, the
Commission shall promptly make the source code of that
technology available and open to any interested political party or
groups which may conduct their own review thereof.”
COMELEC claimed, reiterating what it said in its August 26, 2009
letter to CenPEG, that it would make the source code available for review by
the end of February 2010 "under a controlled environment." “Apparently, this
review had not taken place and was overtaken by the May 10, 2010
elections.”
Comelec failed to provide plaintiffs with the source code of
identified canvass machines despite repeated requests and demands.
CenPEG is now praying for the issuance of a writ of mandamus, despite the
lapse of the May 2010 elections, claiming that the source code remained
important and relevant "not only for compliance with the law, and the
purpose thereof, but especially in the backdrop of numerous admissions of
errors and claims of fraud.”.
Respondent:
On August 26, 2009 COMELEC replied that the source code
CenPEG wanted did not yet exist for the following reasons:

1) that it had not yet received the baseline source code of the
provider, Smartmatic, since payment to it had been withheld as a result
of a pending suit;
2) its customization of the baseline source code was targeted for
completion in November 2009 yet; 3) under Section 11 of R.A. 9369, the
customized source code still had to be reviewed by "an established
international certification entity," which review was expected to be
completed by the end of February 2010; and 4) only then would the
AES be made available for review under a controlled environment.

COMELEC claimed in its comment that CenPEG did not have a

clear, certain, and well-defined right that was enforceable by mandamus
because COMELEC’s duty to make the source code available presupposed
that it already had the same.

Court:
The Court finds the petition and this last manifestation meritorious.

The pertinent portion of Section 12 of R.A. 9369 is clear in that

"once an AES technology is selected for implementation, the Commission
shall promptly make the source code of that technology available and open
to any interested political party or groups which may conduct their own
review thereof." The COMELEC has offered no reason not to comply with
this requirement of the law. Indeed, its only excuse for not disclosing the
source code was that it was not yet available when CenPEG asked for it
and, subsequently, that the review had to be done, apparently for security
reason, "under a controlled environment." The elections had passed and that
reason is already stale.

WHEREFORE, the Court GRANTS the petition for mandamus and

DIRECTS the COMELEC to make the source codes for the AES
technologies it selected for implementation pursuant to R.A. 9369
immediately available to CenPEG and all other interested political parties or
groups for independent review.