Session 14

EN BANC

[G.R. No. 132601. October 12, 1998]

LEO ECHEGARAY y PILO, petitioner, vs. THE SECRETARY OF JUSTICE and THE DIRECTOR OF THE BUREAU OF CORRECTIONS, THE EXECUTIVE JUDGE OF THE REGIONAL TRIAL COURT OF QUEZON CITY AND THE PRESIDING JUDGE OF REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 104, respondents.

D E C I S I O N

PER CURIAM:

On June 25, 1996, this Court affirmed[1] the conviction of petitioner Leo Echegaray y Pilo for the crime of rape of the 10 year-old daughter of his common-law spouse and the imposition upon him of the death penalty for the said crime.

Petitioner duly filed a Motion for Reconsideration raising mainly factual issues, and on its heels, a Supplemental Motion for Reconsideration raising for the first time the issue of the constitutionality of Republic Act No. 7659[2] (the death penalty law) and the imposition of the death penalty for the crime of rape.

On February 7, 1998, this Court denied[3] petitioner's Motion for Reconsideration and Supplemental Motion for Reconsideration with a finding that Congress duly complied with the requirements for the reimposition of the death penalty and therefore the death penalty law is not unconstitutional.

In the meantime, Congress had seen it fit to change the mode of execution of the death penalty from electrocution to lethal injection,[4] and passed Republic Act No. 8177, AN ACT DESIGNATING DEATH BY LETHAL INJECTION AS THE METHOD OF CARRYING OUT CAPITAL PUNISHMENT, AMENDING FOR THE PURPOSE ARTICLE 81 OF THE REVISED PENAL CODE, AS AMENDED BY SECTION 24 OF REPUBLIC ACT NO. 7659.[5] Pursuant to the provisions of said law, the Secretary of Justice promulgated the Rules and Regulations to Implement Republic Act No. 8177 ("implementing rules")[6] and directed the Director of the Bureau of Corrections to prepare the Lethal Injection Manual.[7]

On March 2, 1998, petitioner filed a Petition[8] for Prohibition, Injunction and/or Temporary Restraining Order to enjoin respondents Secretary of Justice and Director of the Bureau of Prisons from carrying out the execution by lethal injection of petitioner under R.A. No. 8177 and its implementing rules as these are unconstitutional and void for being: (a) cruel, degrading and inhuman punishment per seas well as by reason of its being (b) arbitrary, unreasonable and a violation of due process, (c) a violation of the Philippines' obligations under international covenants, (d) an undue

delegation of legislative power by Congress, (e) an unlawful exercise by respondent Secretary of the power to legislate, and (f) an unlawful delegation of delegated powers by the Secretary of Justice to respondent Director.

On March 3, 1998, petitioner, through counsel, filed a Motion for Leave of Court [9] to Amend and Supplement Petition with the Amended and Supplemental Petition[10] attached thereto, invoking the additional ground of violation of equal protection, and impleading the Executive Judge of the Regional Trial Court of Quezon City and the Presiding Judge of the Regional Trial Court, Branch 104, in order to enjoin said public respondents from acting under the questioned rules by setting a date for petitioner's execution.

On March 3, 1998, the Court resolved, without giving due course to the petition, to require the respondents to COMMENT thereon within a non-extendible period of ten (10) days from notice, and directed the parties "to MAINTAIN the status quo prevailing at the time of the filing of this petition."

On March 10, 1998, the Court granted the Motion for Leave of Court to Amend and Supplement Petition, and required respondents to COMMENT thereon within ten (10) days from notice.

On March 16, 1998, petitioner filed a Very Urgent Motion (1) To clarify Status Quo Order, and (2) For the Issuance of a Temporary Restraining Order expressly enjoining public respondents from taking any action to carry out petitioner's execution until the petition is resolved.

On March 16, 1998, the Office of the Solicitor General [11] filed a Comment (On the Petition and the Amended Supplemental Petition)[12] stating that (1) this Court has already upheld the constitutionality of the Death Penalty Law, and has repeatedly declared that the death penalty is not cruel, unjust, excessive or unusual punishment; (2) execution by lethal injection, as authorized under R.A. No. 8177 and the questioned rules, is constitutional, lethal injection being the most modern, more humane, more economical, safer and easier to apply (than electrocution or the gas chamber); (3) the International Covenant on Civil and Political Rights does not expressly or impliedly prohibit the imposition of the death penalty; (4) R.A. No. 8177 properly delegated legislative power to respondent Director; and that (5) R.A. No. 8177 confers the power to promulgate the implementing rules to the Secretary of Justice, Secretary of Health and the Bureau of Corrections.

On March 17, 1998, the Court required the petitioner to file a REPLY thereto within a non-extendible period of ten days from notice.

On March 25, 1998, the Commission on Human Rights[13] filed a Motion for Leave of Court to Intervene and/or Appear as Amicus Curiae[14] with the attached Petition to

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Intervene and/or Appear asAmicus Curiae[15] alleging that the death penalty imposed under R.A. No. 7659 which is to be implemented by R.A. No. 8177 is cruel, degrading and outside the limits of civil society standards, and further invoking (a) Article II, Section 11 of the Constitution which provides: "The State values the dignity of every human person and guarantees full respect for human rights."; (b) Article III of the Universal Declaration of Human Rights which states that "Everyone has the right to life, liberty and security of person," and Article V thereof, which states that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."; (c) The International Covenant on Civil and Political Rights, in particular, Article 6 thereof, and the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming At The Abolition of the Death Penalty; (d) Amnesty International statistics showing that as of October 1996, 58 countries have abolished the death penalty for all crimes, 15 countries have abolished the death penalty for ordinary crimes, and 26 countries are abolitionists de facto, which means that they have retained the death penalty for ordinary crimes but are considered abolitionists in practice that they have not executed anyone during the past ten (10) years or more, or in that they have made an international commitment not to carry out executions, for a total of 99 countries which are total abolitionists in law or practice, and 95 countries as retentionists;[16] and (e) Pope John Paul II's encyclical, "Evangelium Vitae." In a Resolution dated April 3, 1998, the Court duly noted the motion.

On March 27, 1998, petitioner filed a Reply[17] stating that (1) this Court is not barred from exercising judicial review over the death penalty per se, the death penalty for rape and lethal injection as a mode of carrying out the death penalty; (2) capital punishment is a cruel, degrading and inhuman punishment; (3) lethal injection is cruel, degrading and inhuman punishment, and that being the "most modern" does not make it less cruel or more humane, and that the Solicitor General's "aesthetic" criteria is short-sighted, and that the lethal injection is not risk free nor is it easier to implement; and (4) the death penalty violates the International Covenant on Civil and Political Rights considering that the Philippines participated in the deliberations of and voted for the Second Optional Protocol.

After deliberating on the pleadings, the Court gave due course to the petition, which it now resolves on the merits.

In the Amended and Supplemental Petition, petitioner assails the constitutionality of the mode of carrying out his death sentence by lethal injection on the following grounds:[18]

I. DEATH BY LETHAL INJECTION IS UNCONSTITUTIONAL FOR BEING A CRUEL, DEGRADING AND INHUMAN PUNISHMENT.

II. THE DEATH PENALTY VIOLATES THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, WHICH IS PART OF THE LAW OF THE LAND.

III. LETHAL INJECTION, AS AUTHORIZED UNDER REPUBLIC ACT NO. 8177 AND THE QUESTIONED RULES, IS UNCONSTITUTIONAL BECAUSE IT IS AN UNNECESSARY AND WANTON INFLICTION OF PAIN ON A PERSON AND IS, THUS, A CRUEL, DEGRADING, AND INHUMAN PUNISHMENT.

IV. REPUBLIC ACT NO. 8177 UNDULY DELEGATES LEGISLATIVE POWER TO RESPONDENT DIRECTOR.

V. RESPONDENT SECRETARY UNLAWFULLY DELEGATED THE LEGISLATIVE POWERS DELEGATED TO HIM UNDER REPUBLIC ACT NO. 8177 TO RESPONDENT DIRECTOR.

VI. RESPONDENT SECRETARY EXCEEDED THE AUTHORITY DELEGATED TO HIM UNDER REPUBLIC ACT NO. 8177 AND UNLAWFULLY USURPED THE POWER TO LEGISLATE IN PROMULGATING THE QUESTIONED RULES.

VII. SECTION 17 OF THE QUESTIONED RULES IS UNCONSTITUTIONAL FOR BEING DISCRIMINATORY AS WELL AS FOR BEING AN INVALID EXERCISE BY RESPONDENT SECRETARY OF THE POWER TO LEGISLATE.

VIII. INJUCTION MUST ISSUE TO PREVENT IRREPARABLE DAMAGE AND INJURY TO PETITIONER'S RIGHTS BY REASON OF THE EXISTENCE, OPERATION AND IMPLEMENTATION OF AN UNCONSTITUTIONAL STATUTE AND EQUALLY INVALID AND IMPLEMENTING RULES.

Concisely put, petitioner argues that R.A. No. 8177 and its implementing rules do not pass constitutional muster for: (a) violation of the constitutional proscription against cruel, degrading or inhuman punishment, (b) violation of our international treaty obligations, (c) being an undue delegation of legislative power, and (d) being discriminatory.

The Court shall now proceed to discuss these issues in seriatim.

I. LETHAL INJECTION, NOT CRUEL, DEGRADING OR INHUMAN PUNISHMENT UNDER SECTION 19, ARTICLE III OF THE 1987 CONSTITUTION.

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The main challenge to R.A. 8177 and its implementing rules is anchored on Article III, Section 19 (1) of the 1987 Constitution which proscribes the imposition of "cruel, degrading or inhuman" punishment. "The prohibition in the Philippine Bill against cruel and unusual punishments is an Anglo-Saxon safeguard against governmental oppression of the subject, which made its first appearance in the reign of William and Mary of England in 'An Act declaring the rights and liberties of the subject, and settling the succession of the crown,' passed in the year 1689. It has been incorporated into the Constitution of the United States (of America) and into most constitutions of the various States in substantially the same language as that used in the original statute. The exact language of the Constitution of the United States is used in the Philippine Bill."[19] "The counterpart of Section 19 (1) in the 1935 Constitution reads: 'Excessive fines shall not be imposed, nor cruel and inhuman punishment inflicted.' xxx In the 1973 Constitution the phrase became 'cruel or unusual punishment.' The Bill of Rights Committee of the 1986 Constitutional Commission read the 1973 modification as prohibiting 'unusual' punishment even if not 'cruel.' It was thus seen as an obstacle to experimentation in penology. Consequently, the Committee reported out the present text which prohibits 'cruel, degrading or inhuman punishment' as more consonant with the meaning desired and with jurisprudence on the subject."[20]

Petitioner contends that death by lethal injection constitutes cruel, degrading and inhuman punishment considering that (1) R.A. No. 8177 fails to provide for the drugs to be used in carrying out lethal injection, the dosage for each drug to be administered, and the procedure in administering said drug/s into the accused; (2) R.A. No. 8177 and its implementing rules are uncertain as to the date of the execution, time of notification, the court which will fix the date of execution, which uncertainties cause the greatest pain and suffering for the convict; and (3) the possibility of "botched executions" or mistakes in administering the drugs renders lethal injection inherently cruel.

Before the Court proceeds any further, a brief explanation of the process of administering lethal injection is in order.

In lethal injection, the condemned inmate is strapped on a hospital gurney and wheeled into the execution room. A trained technician inserts a needle into a vein in the inmate's arm and begins an intravenous flow of saline solution. At the warden's signal, a lethal combination of drugs is injected into the intravenous line. The deadly concoction typically includes three drugs: (1) a nonlethal dose of sodium thiopenthotal, a sleep inducing barbiturate; (2) lethal doses of pancuronium bromide, a drug that paralyzes the muscles; and (3) potassium chloride, which stops the heart within seconds. The first two drugs are commonly used during surgery to put the patient to sleep and relax muscles; the third is used in heart bypass surgery.[21]

Now it is well-settled in jurisprudence that the death penalty per se is not a cruel, degrading or inhuman punishment.[22] In the oft-cited case of Harden v. Director of Prisons,[23] this Court held that "[p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life." Would the lack in particularity then as to the details involved in the execution by lethal injection render said law "cruel, degrading or inhuman"? The Court believes not. For reasons hereafter discussed, the implementing details of R.A. No. 8177 are matters which are properly left to the competence and expertise of administrative officials.[24]

Petitioner contends that Sec. 16[25] of R.A. No. 8177 is uncertain as to which "court" will fix the time and date of execution, and the date of execution and time of notification of the death convict. As petitioner already knows, the "court" which designates the date of execution is the trial court which convicted the accused, that is, after this Court has reviewed the entire records of the case[26] and has affirmed the judgment of the lower court. Thereupon, the procedure is that the "judgment is entered fifteen (15) days after its promulgation, and 10 days thereafter, the records are remanded to the court below including a certified copy of the judgment for execution.[27] Neither is there any uncertainty as to the date of execution nor the time of notification. As to the date of execution, Section 15 of the implementing rules must be read in conjunction with the last sentence of Section 1 of R.A. No. 8177 which provides that the death sentence shall be carried out "not earlier than one (1) year nor later then eighteen (18) months from the time the judgment imposing the death penalty became final and executory, without prejudice to the exercise by the President of his executive clemency powers at all times." Hence, the death convict is in effect assured of eighteen (18) months from the time the judgment imposing the death penalty became final and executory[28] wherein he can seek executive clemency[29] and attend to all his temporal and spiritual affairs.[30]

Petitioner further contends that the infliction of "wanton pain" in case of possible complications in the intravenous injection, considering and as petitioner claims, that respondent Director is an untrained and untested person insofar as the choice and administration of lethal injection is concerned, renders lethal injection a cruel, degrading and inhuman punishment. Such supposition is highly speculative and unsubstantiated.

First. Petitioner has neither alleged nor presented evidence that lethal injection required the expertise only of phlebotomists and not trained personnel and that the drugs to be administered are unsafe or ineffective.[31] Petitioner simply cites situations in the United States wherein execution by lethal injection allegedly resulted in

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prolonged and agonizing death for the convict,[32] without any other evidence whatsoever.

Second. Petitioner overlooked Section 1, third paragraph of R.A. No. 8177 which requires that all personnel involved in the execution proceedings should be trained prior to the performance of such task. We must presume that the public officials entrusted with the implementation of the death penalty (by lethal injection) will carefully avoid inflicting cruel punishment.[33]

Third. Any infliction of pain in lethal injection is merely incidental in carrying out the execution of death penalty and does not fall within the constitutional proscription against cruel, degrading and inhuman punishment. "In a limited sense, anything is cruel which is calculated to give pain or distress, and since punishment imports pain or suffering to the convict, it may be said that all punishments are cruel. But of course the Constitution does not mean that crime, for this reason, is to go unpunished." [34] The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.[35] Numerous federal and state courts of the United States have been asked to review whether lethal injections constitute cruel and unusual punishment. No court has found lethal injections to implicate prisoner's Eighth Amendment rights. In fact, most courts that have addressed the issue state in one or two sentences that lethal injection clearly is a constitutional form of execution. [36] A few jurisdictions, however, have addressed the merits of the Eighth Amendment claims. Without exception, these courts have found that lethal injection does not constitute cruel and unusual punishment. After reviewing the medical evidence that indicates that improper doses or improper administration of the drugs causes severe pain and that prison officials tend to have little training in the administration of the drugs, the courts have found that the few minutes of pain does not rise to a constitutional violation.[37]

What is cruel and unusual "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice" and "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."[38] Indeed, "[o]ther (U.S.) courts have focused on 'standards of decency' finding that the widespread use of lethal injections indicates that it comports with contemporary norms."[39] the primary indicator of society's standard of decency with regard to capital punishment is the response of the country's legislatures to the sanction.[40] Hence, for as long as the death penalty remains in our statute books and meets the most stringent requirements provided by the Constitution, we must confine our inquiry to the legality of R.A. No. 8177, whose constitutionality we duly sustain in the face of petitioner's challenge. We find that the legislature's substitution of the

mode of carrying out the death penalty from electrocution to lethal injection infringes no constitutional rights of petitioner herein.

II. REIMPOSITION OF THE DEATH PENALTY LAW DOES NOT VIOLATE INTERNATIONAL TREATY OBLIGATIONS

Petitioner assiduously argues that the reimposition of the death penalty law violates our international obligations, in particular, the International Covenant on Civil And Political Rights, which was adopted by the General Assembly of the United Nations on December 16, 1996, signed and ratified by the Philippines on December 19, 1966 and October 23, 1986,[41] respectively.

Article 6 of the International Covenant on Civil and Political Rights provides:

"1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court." (emphasis supplied)

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all-cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State. Party to the present Covenant."

Indisputably, Article 6 of the Covenant enshrines the individual's right to life. Nevertheless, Article 6 (2) of the Covenant explicitly recognizes that capital punishment is an allowable limitation on the right to life, subject to the limitation that it be imposed for the "most serious crimes". Pursuant to Article 28 of the Covenant, a Human Rights Committee was established and under Article 40 of theCovenant, State parties to the Covenant are required to submit an initial report to the Committee on the measures they have adopted which give effect to the rights recognized within

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the Covenant and on the progress made on the enjoyment of those rights one year of its entry into force for the State Party concerned and thereafter, after five years. On July 27, 1982, the Human Rights Committee issued General Comment No. 6 interpreting Article 6 of the Covenant stating that "(while) it follows from Article 6 (2) to (6) that State parties are not obliged to abolish the death penalty totally, they are obliged to limit its use and, in particular, to abolish it for other than the 'most serious crimes.' Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the death penalty to the most serious crimes.' The article strongly suggests (pars. 2 (2) and (6) that abolition is desirable. xxx The Committee is of the opinion that the expression 'most serious crimes' must be read restrictively to mean that the death penalty should be a quite exceptional measure." Further, the Safeguards Guaranteeing Protection of Those Facing the Death Penalty[42] adopted by the Economic and Social Council of the United Nations declare that the ambit of the term 'most serious crimes' should not go beyond intentional crimes, with lethal or other extremely grave consequences.

The Optional Protocol to the International Covenant on Civil and Political Rights was adopted by the General Assembly of the United Nations on December 16, 1966, and signed and ratified by the Philippines on December 19, 1966 and August 22, 1989,[43] respectively. The Optional Protocol provides that the Human Rights Committee shall receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant.

On the other hand, the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty was adopted by the General Assembly on December 15, 1989. The Philippines neither signed nor ratified said document.[44] Evidently, petitioner's assertion of our obligation under the Second Optional Protocol is misplaced.

III. THERE IS NO UNDUE DELEGATION OF LEGISLATIVE POWER IN R.A. NO. 8177 TO THE SECRETARY OF JUSTICE AND THE DIRECTOR OF BUREAU OF CORRECTIONS, BUT SECTION 19 OF THE RULES AND REGULATIONS TO IMPLEMENT R.A. NO. 8177 IS INVALID.

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in the framing of our Constitution. Each department of the government has exclusive cognizance of matters placed within its jurisdiction, and is supreme within its own sphere. [45] Corollary to the doctrine of separation of powers is the principle of non-delegation of powers. "The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas delegata non delegari potest."[46] The recognized exceptions to the rule are as follows:

(1) Delegation of tariff powers to the President under Section 28 (2) of Article VI of the Constitution;

(2) Delegation of emergency powers to the President under Section 23 (2) of Article VI of the Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies.[47]

Empowering the Secretary of Justice in conjunction with the Secretary of Health and the Director of the Bureau of Corrections, to promulgate rules and regulations on the subject of lethal injection is a form of delegation of legislative authority to administrative bodies.

The reason for delegation of authority to administrative agencies is the increasing complexity of the task of government requiring expertise as well as the growing inability of the legislature to cope directly with the myriad problems demanding its attention. The growth of society has ramified its activities and created peculiar and sophisticated problems that the legislature cannot be expected to attend to by itself. Specialization even in legislation has become necessary. On many problems involving day-to-day undertakings, the legislature may not have the needed competence to provide the required direct and efficacious, not to say, specific solutions. These solutions may, however, be expected from its delegates, who are supposed to be experts in the particular fields assigned to them.[48]

Although Congress may delegate to another branch of the Government the power to fill in the details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself - it must set forth therein the policy to be executed, carried out or implemented by the delegate[49] - and (b) fix a standard - the limits of which are sufficiently determinate or determinable - to which the delegate must conform in the performance of his functions.[50]

Considering the scope and the definiteness of R.A. No. 8177, which changed the mode of carrying out the death penalty, the Court finds that the law sufficiently describes what job must be done, who is to do it, and what is the scope of his authority.[51]

R.A. No. 8177 likewise provides the standards which define the legislative policy, mark its limits, map out its boundaries, and specify the public agencies which will apply it. it indicates the circumstances under which the legislative purpose may be carried out.[52] R.A. No. 8177 specifically requires that "[t]he death sentence shall be executed under the authority of the Director of the Bureau of Corrections, endeavoring

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so far as possible to mitigate the sufferings of the person under the sentence during the lethal injection as well as during the proceedings prior to the execution."[53]Further, "[t]he Director of the Bureau of Corrections shall take steps to ensure that the lethal injection to be administered is sufficient to cause the instantaneous death of the convict."[54] The legislature also mandated that "all personnel involved in the administration of lethal injection shall be trained prior to the performance of such task."[55] The Court cannot see that any useful purpose would be served by requiring greater detail.[56] The question raised is not the definition of what constitutes a criminal offense,[57] but the mode of carrying out the penalty already imposed by the Courts. In this sense, R.A. No. 8177 is sufficiently definite and the exercise of discretion by the administrative officials concerned is, to use the words of Justice Benjamin Cardozo, canalized within banks that keep it from overflowing.

Thus, the Court finds that the existence of an area for exercise of discretion by the Secretary of Justice and the Director of the Bureau of Corrections under delegated legislative power is proper where standards are formulated for the guidance and the exercise of limited discretion, which though general, are capable of reasonable application.[58]

It is also noteworthy that Article 81 of the Revised Penal Code which originally provided for the death penalty by electrocution was not subjected to attack on the ground that it failed to provide for details such as the kind of chair to be used, the amount of voltage, volume of amperage or place of attachment of electrodes on the death convict. Hence, petitioner's analogous argument with respect to lethal injection must fail.

A careful reading of R.A. No. 8177 would show that there is no undue delegation of legislative power from the Secretary of Justice to the Director of the Bureau of Corrections for the simple reason that under the Administrative Code of 1987, the Bureau of Corrections is a mere constituent unit of the Department of Justice.[59] Further, the Department of Justice is tasked, among others, to take charge of the "administration of the correctional system."[60] Hence, the import of the phraseology of the law is that the Secretary of Justice should supervise the Director of the Bureau of Corrections in promulgating the Lethal Injection Manual, in consultation with the Department of Health.[61]

However, the Rules and Regulations to Implement Republic Act No. 8177 suffer serious flaws that could not be overlooked. To begin with, something basic appears missing in Section 19 of the implementing rules which provides:

"SEC. 19. EXECUTION PROCEDURE. - Details of the procedure prior to, during and after administering the lethal injection shall be set forth in a manual to be prepared by the Director. The manual shall contain details of, among others, the sequence of

events before and after execution; procedures in setting up the intravenous line; the administration of the lethal drugs; the pronouncement of death; and the removal of the intravenous system.

Said manual shall be confidential and its distribution shall be limited to authorized prison personnel."

Thus, the Courts finds in the first paragraph of Section 19 of the implementing rules a veritable vacuum. The Secretary of Justice has practically abdicated the power to promulgate the manual on the execution procedure to the Director of the Bureau of Corrections, by not providing for a mode of review and approval thereof. Being a mere constituent unit of the Department of Justice, the Bureau of Corrections could not promulgate a manual that would not bear the imprimatur of the administrative superior, the Secretary of Justice as the rule-making authority under R.A. No. 8177. Such apparent abdication of departmental responsibility renders the said paragraph invalid.

As to the second paragraph of section 19, the Court finds the requirement of confidentiality of the contents of the manual even with respect to the convict unduly suppressive. It sees no legal impediment for the convict, should he so desire, to obtain a copy of the manual. The contents of the manual are matters of public concern "which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen."[62] Section 7 of Article III of the 1987 Constitution provides:

"SEC. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transaction, or decisions, as well as to government research data used as a basis for policy development, shall be afforded the citizen, subject to such limitation as may be provided by law."

The incorporation in the Constitution of a guarantee of access to information of public concern is a recognition of the essentiality of the free flow of ideas and information in a democracy.[63] In the same way that free discussion enables members of society to cope with the exigencies of their time,[64] access to information of general interest aids the people in democratic decision-making[65] by giving them a better perspective of the vital issues confronting the nation.[66]

D. SECTION 17 OF THE RULES AND REGULATIONS TO IMPLEMENT R.A. NO. 8177 IS INVALID FOR BEING DISCRIMINATORY AND CONTRARY TO LAW.

Even more seriously flawed than Section 19 is Section of the implementing rules which provides:

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"SEC. 17. SUSPENSION OF THE EXECUTION OF THE DEATH SENTENCE. Execution by lethal injection shall not be inflicted upon a woman within the three years next following the date of the sentence or while she is pregnant, nor upon any person over seventy (70) years of age. In this latter case, the death penalty shall be commuted to the penalty of reclusion perpetua with the accessory penalties provided in Article 40 of the Revised Penal Code."

Petitioner contends that Section 17 is unconstitutional for being discriminatory as well as for being an invalid exercise of the power to legislate by respondent Secretary. Petitioner insists that Section 17 amends the instances when lethal injection may be suspended, without an express amendment of Article 83 of the Revised Penal Code, as amended by section 25 of R.A. No. 7659.

Article 83 f the Revised Penal Code, as amended by section 25 of R.A. No. 7659 now reads as follows:

"ART. 83, Suspension of the execution of the death sentence.- The death sentence shall not be inflicted upon a woman while she is pregnant or within one (1) year after delivery, nor upon any person over seventy years of age. In this last case, the death sentence shall be commuted to the penalty of reclusion perpetua with the accessory penalty provided in Article 40. x x x".

On this point, the Courts finds petitioner's contention impressed with merit. While Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659, suspends the implementation of the death penalty while a woman is pregnant or within one (1) year after delivery, Section 17 of the implementing rules omits the one (1) year period following delivery as an instance when the death sentence is suspended, and adds a ground for suspension of sentence no longer found under Article 83 of the Revised Penal Code as amended, which is the three-year reprieve after a woman is sentenced. This addition is, in petitioner's view, tantamount to a gender-based discrimination sans statutory basis, while the omission is an impermissible contravention of the applicable law.

Being merely an implementing rule, Section 17 aforecited must not override, but instead remain consistent and in harmony with the law it seeks to apply and implement. Administrative rules and regulations are intended to carry out, neither to supplant nor to modify, the law."[67] An administrative agency cannot amend an act of Congress.[68] In case of discrepancy between a provision of statute and a rule or regulation issued to implement said statute, the statutory provision prevails. Since the cited clause in Section 17 which suspends the execution of a woman within the three (3) years next following the date of sentence finds no supports in Article 83 of the Revised Penal Code as amended, perforce Section 17 must be declared invalid.

One member of the Court voted to declare Republic Act. No. 8177 as unconstitutional insofar as it delegates the power to make rules over the same subject matter to two persons (the Secretary of Justice and the Director of the Bureau of Corrections) and constitutes a violation of the international norm towards the abolition of the death penalty. One member of the Court, consistent with his view in People v. Echegaray, 267 SCRA 682, 734-758 (1997) that the death penalty law (Republic Act. No. 7659) is itself unconstitutional, believes that Republic Act No. 8177 which provides for the means of carrying out the death sentence, is likewise unconstitutional. Two other members of the court concurred in the aforesaid Separate Opinions in that the death penalty law (Republic Act No. 7659) together with the assailed statute (Republic Act No. 8177) are unconstitutional. In sum, four members of the Court voted to declare Republic Act. No. 8177 as unconstitutional. These Separate Opinions are hereto annexed, infra.

WHEREFORE, the petition is DENIED insofar as petitioner seeks to declare the assailed statute (Republic Act No. 8177) as unconstitutional; but GRANTED insofar as Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are concerned, which are hereby declared INVALID because (a) Section 17 contravenes Article 83 of the Revised Penal Code, as amended by Section 25 of the Republic Act No. 7659; and (b) Section 19 fails to provide for review and approval of the Lethal Injection Manual by the Secretary of Justice, and unjustifiably makes the manual confidential, hence unavailable to interested parties including the accused/convict and counsel. Respondents are hereby enjoined from enforcing and implementing Republic Act No. 8177 until the aforesaid Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are appropriately amended, revised and/or corrected in accordance with this Decision.

NO COSTS.

SO ORDERED.

SESSION XIV | 7



EN BANC

G.R. No. L-37878 November 25, 1932

MANILA ELECTRIC COMPANY, petitioner, vs.PASAY TRANSPORTATION COMPANY, INC., ET AL., respondents.

MALCOLM, J.:

The preliminary and basic question presented by the petition of the Manila Electric Company, requesting the members of the Supreme Court, sitting as a board of arbitrators, to fix the terms upon which certain transportation companies shall be permitted to use the Pasig bridge of the Manila Electric Company and the compensation to be paid to the Manila Electric Company by such transportation companies, relates to the validity of section 11 of Act No. 1446 and to the legal right of the members of the Supreme Court, sitting as a board of arbitrators, to act on the petition. Act No. 1446 above referred to is entitled. "An Act granting a franchise to Charles M. Swift to construct, maintain, and operate an electric railway, and to construct, maintain, and operate an electric light, heat, and power system from a point in the City of Manila in an easterly direction to the town of Pasig, in the Province of Rizal." Section 11 of the Act provides: "Whenever any franchise or right of way is granted to any other person or corporation, now or hereafter in existence, over portions of the lines and tracks of the grantee herein, the terms on which said other person or corporation shall use such right of way, and the compensation to be paid to the grantee herein by such other person or corporation for said use, shall be fixed by the members of the Supreme Court, sitting as a board of arbitrators, the decision of a majority of whom shall be final."

When the petition of the Manila Electric Company was filed in this court, it was ordered that the petitioner be required to serve copies on the Attorney-General and the transportation companies affected by the petition. Thereafter, the Attorney-General disclaimed any interest in the proceedings, and opposition was entered to the petition by a number of public utility operators. On the submission of memoranda after an oral hearing, the petition was made ready for resolution.

Examining the statutory provision which is here invoked, it is first noted that power is attempted to be granted to the members of the Supreme Court sitting as a board of arbitrators and to the Supreme Court as an entity. It is next seen that the decision of a majority of the members of the Supreme Court is made final. And it is finally observed that the franchise granted the Manila Electric Company by the Government of the Philippine Islands, although only a contract between the parties to it, is now made to effect the rights of persons not signatories to the covenant.

The law calls for arbitration which represents a method of the parties' own choice. A submission to arbitration is a contract. The parties to an arbitration agreement may not oust the courts of jurisdiction of the matters submitted to arbitration. These are familiar rules which find support in articles 1820 and 1821 of the Civil Code. Citation of authority is hardly necessary, except that it should be recalled that in the Philippines, and in the United States for that matter, it has been held that a clause in a contract, providing that all matters in dispute between the parties shall be referred to arbitrators and to them alone, is contrary to public policy and cannot oust the courts of jurisdiction (Wahl and Wahl vs. Donaldson, Sims & Co. [1903], 2 Phil., 301; Puentebella vs. Negros Coal Co. [1927], 50 Phil., 69; Vega vs. San Carlos Milling Co. [1924], 51 Phil., 908; District of Columbia vs. Bailey [1897], 171 U. S., 161.)

We would not be understood as extending the principles governing arbitration and award too far. Unless the arbitration agreement is such as absolutely to close the doors of the courts against the parties, the courts should look with favor upon such amicable arrangements. We can also perceive a distinction between a private contract for submission to arbitration and agreements to arbitrate falling within the terms of a statute enacted for such purpose and affecting others than the parties to a particular franchise. Here, however, whatever else may be said in extenuation, it remains true that the decision of the board of arbitrators is made final, which if literally enforced would leave a public utility, not a party to the contract authorized by Act No. 1446, without recourse to the courts for a judicial determination of the question in dispute.

Counsel for the petitioner rely principally on the case of Tallassee Falls Mfg. Co. vs. Commissioner's Court [1908], 158 Ala., 263. It was there held that an Act of a state legislature authorizing the commissioners' court of a certain county to regulate and fix the rate of toll to be charged by the owners of a bridge is not unconstitutional as delegating legislative power to the courts. But that is not the question before us. Here the question is not one of whether or not there has been a delegation of legislative authority to a court. More precisely, the issue concerns the legal right of the members of the Supreme Court, sitting as a board of arbitrators the decision of a majority of whom shall be final, to act in that capacity.

We run counter to this dilemma. Either the members of the Supreme Court, sitting as a board of arbitrators, exercise judicial functions, or the members of the Supreme Court, sitting as board of arbitrators, exercise administrative orquasi judicial functions. The first case would appear not to fall within the jurisdiction granted the Supreme Court. Even conceding that it does, it would presuppose the right to bring the matter in dispute before the courts, for any other construction would tend to oust the courts of jurisdiction and render the award a nullity. But if this be the proper construction, we would then have the anomaly of a decision by the members of the Supreme Court, sitting as a board of arbitrators, taken therefrom to the courts and eventually coming

SESSION XIV | 8

before the Supreme Court, where the Supreme Court would review the decision of its members acting as arbitrators. Or in the second case, if the functions performed by the members of the Supreme Court, sitting as a board of arbitrators, be considered as administrative or quasi judicial in nature, that would result in the performance of duties which the members of the Supreme Court could not lawfully take it upon themselves to perform. The present petition also furnishes an apt illustration of another anomaly, for we find the Supreme Court as a court asked to determine if the members of the court may be constituted a board of arbitrators, which is not a court at all.lawphil.net

The Supreme Court of the Philippine Islands represents one of the three divisions of power in our government. It is judicial power and judicial power only which is exercised by the Supreme Court. Just as the Supreme Court, as the guardian of constitutional rights, should not sanction usurpations by any other department of the government, so should it as strictly confine its own sphere of influence to the powers expressly or by implication conferred on it by the Organic Act. The Supreme Court and its members should not and cannot be required to exercise any power or to perform any trust or to assume any duty not pertaining to or connected with the administering of judicial functions.

The Organic Act provides that the Supreme Court of the Philippine Islands shall possess and exercise jurisdiction as heretofore provided and such additional jurisdiction as shall hereafter be prescribed by law (sec. 26). When the Organic Act speaks of the exercise of "jurisdiction" by the Supreme Court, it could not only mean the exercise of "jurisdiction" by the Supreme Court acting as a court, and could hardly mean the exercise of "jurisdiction" by the members of the Supreme Court, sitting as a board of arbitrators. There is an important distinction between the Supreme Court as an entity and the members of the Supreme Court. A board of arbitrators is not a "court" in any proper sense of the term, and possesses none of the jurisdiction which the Organic Act contemplates shall be exercised by the Supreme Court.lawph!l.net

In the last judicial paper from the pen of Chief Justice Taney, it was said:

The power conferred on this court is exclusively judicial, and it cannot be required or authorized to exercise any other. . . . Its jurisdiction and powers and duties being defined in the organic law of the government, and being all strictly judicial, Congress cannot require or authorize the court to exercise any other jurisdiction or power, or perform any other duty. . . . The award of execution is a part, and an essential part of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. It would be merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and

pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this court, in the exercise of its appellate jurisdiction; yet it is the whole power that the court is allowed to exercise under this act of Congress. . . . And while it executes firmly all the judicial powers entrusted to it, the court will carefully abstain from exercising any power that is not strictly judicial in its character, and which is not clearly confided to it by the Constitution. . . . (Gordon vs. United States [1864], 2 Wall., 561; 117 U. S., 697 Appendix.)

Confirming the decision to the basic question at issue, the Supreme Court holds that section 11 of Act No. 1446 contravenes the maxims which guide the operation of a democratic government constitutionally established, and that it would be improper and illegal for the members of the Supreme Court, sitting as a board of arbitrators, the decision of a majority of whom shall be final, to act on the petition of the Manila Electric Company. As a result, the members of the Supreme Court decline to proceed further in the matter.

SESSION XIV | 9

EN BANC

[G.R. No. 159139. January 13, 2004]

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.

D E C I S I O N

PANGANIBAN, J.:

There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or jurisprudence;[1] or (2) when it is executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias.[2] In the present case, the Commission on Elections approved the assailed Resolution and awarded the subject Contract not only in clear violation of law and jurisprudence, but also in reckless disregard of its own bidding rules and procedure. For the automation of the counting and canvassing of the ballots in the 2004 elections, Comelec awarded the Contract to “Mega Pacific Consortium” an entity that had not participated in the bidding. Despite this grant, the poll body signed the actual automation Contract with “Mega Pacific eSolutions, Inc.,” a company that joined the bidding but had not met the eligibility requirements.

Comelec awarded this billion-peso undertaking with inexplicable haste, without adequately checking and observing mandatory financial, technical and legal requirements. It also accepted the proferred computer hardware and software even if, at the time of the award, they 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 criteria 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

Because of the foregoing violations of law and the glaring grave abuse of discretion committed by Comelec, the Court has no choice but to exercise its solemn “constitutional duty”[3] to void the assailed Resolution and the subject Contract. 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. Truly, the pith and soul of democracy -- credible, orderly, and peaceful elections -- has been put in jeopardy by the illegal and gravely abusive acts of Comelec.

The Case

Before us is a Petition[4] under Rule 65 of the Rules of Court, seeking (1) to declare null and void Resolution No. 6074 of the Commission on Elections (Comelec), which awarded “Phase II of the Modernization Project of the Commission to Mega Pacific Consortium (MPC);” (2) to enjoin the implementation of any further contract that may have been entered into by Comelec “either with Mega Pacific Consortium and/or Mega Pacific eSolutions, Inc. (MPEI);” and (3) to compel Comelec to conduct a re-bidding of the project.

The Facts

The following facts are not disputed. They were culled from official documents, the parties’ pleadings, as well as from admissions during the Oral Argument on October 7, 2003.

On June 7, 1995, Congress passed Republic Act 8046,[5] which authorized Comelec to conduct a nationwide demonstration of a computerized election system and allowed the poll body to pilot-test the system in the March 1996 elections in the Autonomous Region in Muslim Mindanao (ARMM).

On December 22, 1997, Congress enacted Republic Act 8436[6] authorizing Comelec to use an automated election system (AES) for the process of voting, counting votes and canvassing/consolidating the results of the national and local elections. It also mandated the poll body to acquire automated counting machines (ACMs), computer equipment, devices and materials; and to adopt new electoral forms and printing materials.

Initially intending to implement the automation during the May 11, 1998 presidential elections, Comelec -- in its Resolution No. 2985 dated February 9, 1998 [7] -- eventually decided against full national implementation and limited the automation to the Autonomous Region in Muslim Mindanao (ARMM). However, due to the failure of the machines to read correctly some automated ballots in one town, the poll body later ordered their manual count for the entire Province of Sulu.[8]

SESSION XIV | 10

In the May 2001 elections, the counting and canvassing of votes for both national and local positions were also done manually, as no additional ACMs had been acquired for that electoral exercise allegedly because of time constraints.

On October 29, 2002, Comelec adopted in its Resolution 02-0170 a modernization program for the 2004 elections. It resolved to conduct biddings for the three (3) phases of its Automated Election System; namely, Phase I - Voter Registration and Validation System; Phase II - Automated Counting and Canvassing System; and Phase III - Electronic Transmission.

On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172, which allocated the sum of P2.5 billion to fund the AES for the May 10, 2004 elections. Upon the request of Comelec, she authorized the release of an additional P500 million.

On January 28, 2003, the Commission issued an “Invitation to Apply for Eligibility and to Bid,” which we quote as follows:

“INVITATION TO APPLY FOR ELIGIBILITY AND TO BID

The Commission on Elections (COMELEC), pursuant to the mandate of Republic Act Nos. 8189 and 8436, invites interested offerors, vendors, suppliers or lessors to apply for eligibility and to bid for the procurement by purchase, lease, lease with option to purchase, or otherwise, supplies, equipment, materials and services needed for a comprehensive Automated Election System, consisting of three (3) phases: (a) registration/verification of voters, (b) automated counting and consolidation of votes, and (c) electronic transmission of election results, with an approved budget of TWO BILLION FIVE HUNDRED MILLION (Php2,500,000,000) Pesos.

Only bids from the following entities shall be entertained:

a. Duly licensed Filipino citizens/proprietorships;

b. Partnerships duly organized under the laws of the Philippines and of which at least sixty percent (60%) of the interest belongs to citizens of the Philippines;

c. Corporations duly organized under the laws of the Philippines, and of which at least sixty percent (60%) of the outstanding capital stock belongs to citizens of the Philippines;

d. Manufacturers, suppliers and/or distributors forming themselves into a joint venture, i.e., a group of two (2) or more manufacturers, suppliers and/or distributors that intend to be jointly and severally responsible or liable for a particular contract, provided that Filipino ownership thereof shall be at least sixty percent (60%); and

e. Cooperatives duly registered with the Cooperatives Development Authority.

Bid documents for the three (3) phases may be obtained starting 10 February 2003, during office hours from the Bids and Awards Committee (BAC) Secretariat/Office of Commissioner Resurreccion Z. Borra, 7th Floor, Palacio del Governador, Intramuros, Manila, upon payment at the Cash Division, Commission on Elections, in cash or cashier’s check, payable to the Commission on Elections, of a non-refundable amount of FIFTEEN THOUSAND PESOS (Php15,000.00) for each phase. For this purpose, interested offerors, vendors, suppliers or lessors have the option to participate in any or all of the three (3) phases of the comprehensive Automated Election System.

A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at the Session Hall, Commission on Elections, Postigo Street, Intramuros, Manila. Should there be questions on the bid documents, bidders are required to submit their queries in writing to the BAC Secretariat prior to the scheduled Pre-Bid Conference.

Deadline for submission to the BAC of applications for eligibility and bid envelopes for the supply of the comprehensive Automated Election System shall be at the Session Hall, Commission on Elections, Postigo Street, Intramuros, Manila on 28 February 2003 at 9:00 a.m.

The COMELEC reserves the right to review the qualifications of the bidders after the bidding and before the contract is executed. Should such review uncover any misrepresentation made in the eligibility statements, or any changes in the situation of the bidder to materially downgrade the substance of such statements, the COMELEC shall disqualify the bidder upon due notice without any obligation whatsoever for any expenses or losses that may be incurred by it in the preparation of its bid.”[9]

On February 11, 2003, Comelec issued Resolution No. 5929 clarifying certain eligibility criteria for bidders and the schedule of activities for the project bidding, as follows:

“1.) Open to Filipino and foreign corporation duly registered and licensed to do business and is actually doing business in the Philippines, subject to Sec. 43 of RA 9184 (An Act providing In the Modernization Standardization and Regulation of the Procurement Activities of the Government and for other purposes etc.)

2.) Track Record:

a) For counting machines – should have been used in at least one (1) political exercise with no less than Twenty Million Voters;

b) For verification of voters – the reference site of an existing data base installation using Automated Fingerprint Identification System (AFIS) with at least Twenty Million.

SESSION XIV | 11

3.) Ten percent (10%) equity requirement shall be based on the total project cost; and

4.) Performance bond shall be twenty percent (20%) of the bid offer.

RESOLVED moreover, that:

1) A. Due to the decision that the eligibility requirements and the rest of the Bid documents shall be released at the same time, and the memorandum of Comm. Resurreccion Z. Borra dated February 7, 2003, the documents to be released on Friday, February 14, 2003 at 2:00 o’clock p.m. shall be the eligibility criteria, Terms of Reference (TOR) and other pertinent documents;

B. Pre-Bid conference shall be on February 18, 2003; and

C. Deadline for the submission and receipt of the Bids shall be on March 5, 2003.

2) The aforementioned documents will be available at the following offices:

a) Voters Validation: Office of Comm. Javier

b) Automated Counting Machines: Office of Comm. Borra

c) Electronic Transmission: Office of Comm. Tancangco”[10]

On February 17, 2003, the poll body released the Request for Proposal (RFP) to procure the election automation machines. The Bids and Awards Committee (BAC) of Comelec convened a pre-bid conference on February 18, 2003 and gave prospective bidders until March 10, 2003 to submit their respective bids.

Among others, the RFP provided that bids from manufacturers, suppliers and/or distributors forming themselves into a joint venture may be entertained, provided that the Philippine ownership thereof shall be at least 60 percent. Joint venture is defined in the RFP as “a group of two or more manufacturers, suppliers and/or distributors that intend to be jointly and severally responsible or liable for a particular contract.”[11]

Basically, the public bidding was to be conducted under a two-envelope/two stage system. The bidder’s first envelope or the Eligibility Envelope should establish the bidder’s eligibility to bid and its qualifications to perform the acts if accepted. On the other hand, the second envelope would be the Bid Envelope itself. The RFP outlines the bidding procedures as follows:

“25. Determination of Eligibility of Prospective Bidders

“25.1 The eligibility envelopes of prospective Bidders shall be opened first to determine their eligibility. In case any of the requirements specified in Clause 20 is missing from the first bid envelope, the BAC shall declare said prospective Bidder as

ineligible to bid. Bid envelopes of ineligible Bidders shall be immediately returned unopened.

“25.2 The eligibility of prospective Bidders shall be determined using simple ‘pass/fail’ criteria and shall be determined as either eligible or ineligible. If the prospective Bidder is rated ‘passed’ for all the legal, technical and financial requirements, he shall be considered eligible. If the prospective Bidder is rated ‘failed’ in any of the requirements, he shall be considered ineligible.

“26. Bid Examination/Evaluation

“26.1 The BAC will examine the Bids to determine whether they are complete, whether any computational errors have been made, whether required securities have been furnished, whether the documents have been properly signed, and whether the Bids are generally in order.

“26.2 The BAC shall check the submitted documents of each Bidder against the required documents enumerated under Clause 20, to ascertain if they are all present in the Second bid envelope (Technical Envelope). In case one (1) or more of the required documents is missing, the BAC shall rate the Bid concerned as ‘failed’ and immediately return to the Bidder its Third bid envelope (Financial Envelope) unopened. Otherwise, the BAC shall rate the first bid envelope as ‘passed’.

“26.3 The BAC shall immediately open the Financial Envelopes of the Bidders whose Technical Envelopes were passed or rated on or above the passing score. Only Bids that are determined to contain all the bid requirements for both components shall be rated ‘passed’ and shall immediately be considered for evaluation and comparison.

“26.4 In the opening and examination of the Financial Envelope, the BAC shall announce and tabulate the Total Bid Price as calculated. Arithmetical errors will be rectified on the following basis: If there is a discrepancy between words and figures, the amount in words will prevail. If there is a discrepancy between the unit price and the total price that is obtained by multiplying the unit price and the quantity, the unit price shall prevail and the total price shall be corrected accordingly. If there is a discrepancy between the Total Bid Price and the sum of the total prices, the sum of the total prices prevail and the Total Bid Price shall be corrected accordingly.

“26.5 Financial Proposals which do not clearly state the Total Bid Price shall be rejected. Also, Total Bid Price as calculated that exceeds the approved budget for the contract shall also be rejected.

27. Comparison of Bids

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27.1 The bid price shall be deemed to embrace all costs, charges and fees associated with carrying out all the elements of the proposed Contract, including but not limited to, license fees, freight charges and taxes.

27.2 The BAC shall establish the calculated prices of all Bids rated ‘passed’ and rank the same in ascending order.

x x x x x x x x x

“29. Postqualification

“29.1 The BAC will determine to its satisfaction whether the Bidder selected as having submitted the lowest calculated bid is qualified to satisfactorily perform the Contract.

“29.2 The determination will take into account the Bidder’s financial, technical and production capabilities/resources. It will be based upon an examination of the documentary evidence of the Bidder’s qualification submitted by the Bidder as well as such other information as the BAC deems necessary and appropriate.

“29.3 A bid determined as not substantially responsive will be rejected by the BAC and may not subsequently be made responsive by the Bidder by correction of the non-conformity.

“29.4 The BAC may waive any informality or non-conformity or irregularity in a bid which does not constitute a material deviation, provided such waiver does not prejudice or affect the relative ranking of any Bidder.

“29.5 Should the BAC find that the Bidder complies with the legal, financial and technical requirements, it shall make an affirmative determination which shall be a prerequisite for award of the Contract to the Bidder. Otherwise, it will make a negative determination which will result in rejection of the Bidder’s bid, in which event the BAC will proceed to the next lowest calculated bid to make a similar determination of that Bidder’s capabilities to perform satisfactorily.”[12]

Out of the 57 bidders,[13] the BAC found MPC and the Total Information Management Corporation (TIMC) eligible. For technical evaluation, they were referred to the BAC’s Technical Working Group (TWG) and the Department of Science and Technology (DOST).

In its Report on the Evaluation of the Technical Proposals on Phase II, DOST said that both MPC and TIMC had obtained a number of failed marks in the technical evaluation. Notwithstanding these failures, Comelec en banc, on April 15, 2003, promulgated Resolution No. 6074 awarding the project to MPC. The Commission publicized this Resolution and the award of the project to MPC on May 16, 2003.

On May 29, 2003, five individuals and entities (including the herein Petitioners Information Technology Foundation of the Philippines, represented by its president, Alfredo M. Torres; and Ma. Corazon Akol) wrote a letter[14] to Comelec Chairman Benjamin Abalos Sr. They protested the award of the Contract to Respondent MPC “due to glaring irregularities in the manner in which the bidding process had been conducted.” Citing therein the noncompliance with eligibility as well as technical and procedural requirements (many of which have been discussed at length in the Petition), they sought a re-bidding.

In a letter-reply dated June 6, 2003,[15] the Comelec chairman -- speaking through Atty. Jaime Paz, his head executive assistant -- rejected the protest and declared that the award “would stand up to the strictest scrutiny.”

Hence, the present Petition.[16]

The Issues

In their Memorandum, petitioners raise the following issues for our consideration:

“1. The COMELEC awarded and contracted with a non-eligible entity; x x x

“2. Private respondents failed to pass the Technical Test as required in the RFP. Notwithstanding, such failure was ignored. In effect, the COMELEC changed the rules after the bidding in effect changing the nature of the contract bidded upon.

“3. Petitioners have locus standi.

“4. Instant Petition is not premature. Direct resort to the Supreme Court is justified.”[17]

In the main, the substantive issue is whether the Commission on Elections, the agency vested with the exclusive constitutional mandate to oversee elections, gravely abused its discretion when, in the exercise of its administrative functions, it awarded to MPC the contract for the second phase of the comprehensive Automated Election System.

Before discussing the validity of the award to MPC, however, we deem it proper to first pass upon the procedural issues: the legal standing of petitioners and the alleged prematurity of the Petition.

This Court’s Ruling

The Petition is meritorious.

First Procedural Issue: Locus Standi of Petitioners

Respondents chorus that petitioners do not possess locus standi, inasmuch as they are not challenging the validity or constitutionality of RA 8436. Moreover, petitioners supposedly admitted during the Oral Argument that no law had been violated by the

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award of the Contract. Furthermore, they allegedly have no actual and material interest in the Contract and, hence, do not stand to be injured or prejudiced on account of the award.

On the other hand, petitioners -- suing in their capacities as taxpayers, registered voters and concerned citizens -- respond that the issues central to this case are “of transcendental importance and of national interest.” Allegedly, Comelec’s flawed bidding and questionable award of the Contract to an unqualified entity would impact directly on the success or the failure of the electoral process. Thus, any taint on the sanctity of the ballot as the expression of the will of the people would inevitably affect their faith in the democratic system of government. Petitioners further argue that the award of any contract for automation involves disbursement of public funds in gargantuan amounts; therefore, public interest requires that the laws governing the transaction must be followed strictly.

We agree with petitioners. Our nation’s political and economic future virtually hangs in the balance, pending the outcome of the 2004 elections. Hence, there can be no serious doubt that the subject matter of this case is “a matter of public concern and imbued with public interest”;[18] in other words, it is of “paramount public interest”[19] and “transcendental importance.”[20] This fact alone would justify relaxing the rule on legal standing, following the liberal policy of this Court whenever a case involves “an issue of overarching significance to our society.”[21] Petitioners’ legal standing should therefore be recognized and upheld.

Moreover, this Court has held that taxpayers are allowed to sue when there is a claim of “illegal disbursement of public funds,”[22] or if public money is being “deflected to any improper purpose”;[23] or when petitioners seek to restrain respondent from “wasting public funds through the enforcement of an invalid or unconstitutional law.”[24] In the instant case, individual petitioners, suing as taxpayers, assert a material interest in seeing to it that public funds are properly and lawfully used. In the Petition, they claim that the bidding was defective, the winning bidder not a qualified entity, and the award of the Contract contrary to law and regulation. Accordingly, they seek to restrain respondents from implementing the Contract and,necessarily, from making any unwarranted expenditure of public funds pursuant thereto. Thus, we hold that petitioners possess locus standi.

Second Procedural Issue: Alleged Prematurity Due to Non-Exhaustion of Administrative Remedies

Respondents claim that petitioners acted prematurely, since they had not first utilized the protest mechanism available to them under RA 9184, the Government Procurement Reform Act, for the settlement of disputes pertaining to procurement contracts.

Section 55 of RA 9184 states that protests against decisions of the Bidding and Awards Committee in all stages of procurement may be lodged with the head of the procuring entity by filing a verified position paper and paying a protest fee. Section 57 of the same law mandates that in no case shall any such protest stay or delay the bidding process, but it must first be resolved before any award is made.

On the other hand, Section 58 provides that court action may be resorted to only after the protests contemplated by the statute shall have been completed. Cases filed in violation of this process are to be dismissed for lack of jurisdiction. Regional trial courts shall have jurisdiction over final decisions of the head of the procuring entity, and court actions shall be instituted pursuant to Rule 65 of the 1997 Rules of Civil Procedure.

Respondents assert that throughout the bidding process, petitioners never questioned the BAC Report finding MPC eligible to bid and recommending the award of the Contract to it (MPC). According to respondents, the Report should have been appealed to the Comelec en banc, pursuant to the aforementioned sections of RA 9184. In the absence of such appeal, the determination and recommendation of the BAC had become final.

The Court is not persuaded.

Respondent Comelec came out with its en banc Resolution No. 6074 dated April 15, 2003, awarding the project to Respondent MPC even before the BAC managed to issue its written report and recommendation on April 21, 2003. Thus, how could petitioners have appealed the BAC’s recommendation or report to the head of the procuring entity (the chairman of Comelec), when the Comelec en banc had already approved the award of the contract to MPC even before petitioners learned of the BAC recommendation?

It is claimed[25] by Comelec that during its April 15, 2003 session, it received and approved the verbal report and recommendation of the BAC for the award of the Contract to MPC, and that the BAC subsequently re-affirmed its verbal report and recommendation by submitting it in writing on April 21, 2003. Respondents insist that the law does not require that the BAC Report be in writing before Comelec can act thereon; therefore, there is allegedly nothing irregular about the Report as well as the en banc Resolution.

However, it is obvious that petitioners could have appealed the BAC’s report and recommendation to the head of the procuring entity (the Comelec chair) only upon their discoverythereof, which at the very earliest would have been on April 21, 2003, when the BAC actually put its report in writing and finally released it. Even then, what would have been the use of protesting/appealing the report to the Comelec chair, when

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by that time the Commission en banc (including the chairman himself) had already approved the BAC Report and awarded the Contract to MPC?

And even assuming arguendo that petitioners had somehow gotten wind of the verbal BAC report on April 15, 2003 (immediately after the en banc session), at that point the Commission en banc had already given its approval to the BAC Report along with the award to MPC. To put it bluntly, the Comelec en banc itself made it legally impossible for petitioners to avail themselves of the administrative remedy that the Commission is so impiously harping on. There is no doubt that they had not been accorded the opportunity to avail themselves of the process provided under Section 55 of RA 9184, according to which a protest against a decision of the BAC may be filed with the head of the procuring entity. Nemo tenetur ad impossible,[26] to borrow private respondents’ favorite Latin excuse.[27]

Some Observations on the BAC Report to the Comelec

We shall return to this issue of alleged prematurity shortly, but at this interstice, we would just want to put forward a few observations regarding the BAC Report and the Comelec en banc’s approval thereof.

First, Comelec contends that there was nothing unusual about the fact that the Report submitted by the BAC came only after the former had already awarded the Contract, because the latter had been asked to render its report and recommendation orally during the Commission’s en banc session on April 15, 2003. Accordingly, Comelec supposedly acted upon such oral recommendation and approved the award to MPC on the same day, following which the recommendation was subsequently reduced into writing on April 21, 2003. While not entirely outside the realm of the possible, this interesting and unique spiel does not speak well of the process that Comelec supposedly went through in making a critical decision with respect to a multi-billion-peso contract.

We can imagine that anyone else standing in the shoes of the Honorable Commissioners would have been extremely conscious of the overarching need for utter transparency. They would have scrupulously avoided the slightest hint of impropriety, preferring to maintain an exacting regularity in the performance of their duties, instead of trying to break a speed record in the award of multi-billion-peso contracts. After all, between April 15 and April 21 were a mere six (6) days. Could Comelec not have waited out six more days for the written report of the BAC, instead of rushing pell-mell into the arms of MPC? Certainly, respondents never cared to explain the nature of the Commission’s dire need to act immediately without awaiting the formal, written BAC Report.

In short, the Court finds it difficult to reconcile the uncommon dispatch with which Comelec acted to approve the multi-billion-peso deal, with its claim of having been impelled by only the purest and most noble of motives.

At any rate, as will be discussed later on, several other factors combine to lend negative credence to Comelec’s tale.

Second, without necessarily ascribing any premature malice or premeditation on the part of the Comelec officials involved, it should nevertheless be conceded that this cart-before-the-horse maneuver (awarding of the Contract ahead of the BAC’s written report) would definitely serve as a clever and effective way of averting and frustrating any impending protest under Section 55.

Having made the foregoing observations, we now go back to the question of exhausting administrative remedies. Respondents may not have realized it, but the letter addressed to Chairman Benjamin Abalos Sr. dated May 29, 2003 [28] serves to eliminate the prematurity issue as it was an actual written protest against the decision of the poll body to award the Contract. The letter was signed by/for, inter alia, two of herein petitioners: the Information Technology Foundation of the Philippines, represented by its president, Alfredo M. Torres; and Ma. Corazon Akol.

Such letter-protest is sufficient compliance with the requirement to exhaust administrative remedies particularly because it hews closely to the procedure outlined in Section 55 of RA 9184.

And even without that May 29, 2003 letter-protest, the Court still holds that petitioners need not exhaust administrative remedies in the light of Paat v. Court of Appeals.[29] Paatenumerates the instances when the rule on exhaustion of administrative remedies may be disregarded, as follows:

“(1) when there is a violation of due process,

(2) when the issue involved is purely a legal question,

(3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction,

(4) when there is estoppel on the part of the administrative agency concerned,

(5) when there is irreparable injury,

(6) when the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter,

(7) when to require exhaustion of administrative remedies would be unreasonable,

(8) when it would amount to a nullification of a claim,

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(9) when the subject matter is a private land in land case proceedings,

(10) when the rule does not provide a plain, speedy and adequate remedy, and

(11) when there are circumstances indicating the urgency of judicial intervention.”[30]

The present controversy precisely falls within the exceptions listed as Nos. 7, 10 and 11: “(7) when to require exhaustion of administrative remedies would be unreasonable; (10) when the rule does not provide a plain, speedy and adequate remedy, and (11) when there are circumstances indicating the urgency of judicial intervention.” As already stated, Comelec itself made the exhaustion of administrative remedies legally impossible or, at the very least, “unreasonable.”

In any event, the peculiar circumstances surrounding the unconventional rendition of the BAC Report and the precipitate awarding of the Contract by the Comelec en banc -- plus the fact that it was racing to have its Contract with MPC implemented in time for the elections in May 2004 (barely four months away) -- have combined to bring about the urgent need for judicial intervention, thus prompting this Court to dispense with the procedural exhaustion of administrative remedies in this case.

Main Substantive Issue: Validity of the Award to MPC

We come now to the meat of the controversy. Petitioners contend that the award is invalid, since Comelec gravely abused its discretion when it did the following:

1. Awarded the Contract to MPC though it did not even participate in the bidding

2. Allowed MPEI to participate in the bidding despite its failure to meet the mandatory eligibility requirements

3. Issued its Resolution of April 15, 2003 awarding the Contract to MPC despite the issuance by the BAC of its Report, which formed the basis of the assailed Resolution, only on April 21, 2003[31]

4. Awarded the Contract, notwithstanding the fact that during the bidding process, there were violations of the mandatory requirements of RA 8436 as well as those set forth in Comelec’s own Request for Proposal on the automated election system

5. Refused to declare a failed bidding and to conduct a re-bidding despite the failure of the bidders to pass the technical tests conducted by the Department of Science and Technology

6. Failed to follow strictly the provisions of RA 8436 in the conduct of the bidding for the automated counting machines

After reviewing the slew of pleadings as well as the matters raised during the Oral Argument, the Court deems it sufficient to focus discussion on the following major areas of concernthat impinge on the issue of grave abuse of discretion:

A. Matters pertaining to the identity, existence and eligibility of MPC as a bidder

B. Failure of the automated counting machines (ACMs) to pass the DOST technical tests

C. Remedial measures and re-testings undertaken by Comelec and DOST after the award, and their effect on the present controversy

A. Failure to Establish the Identity, Existence and Eligibility of the

Alleged Consortium as a Bidder

On the question of the identity and the existence of the real bidder, respondents insist that, contrary to petitioners’ allegations, the bidder was not Mega Pacific eSolutions, Inc. (MPEI), which was incorporated only on February 27, 2003, or 11 days prior to the bidding itself. Rather, the bidder was Mega Pacific Consortium (MPC), of which MPEI was but a part. As proof thereof, they point to the March 7, 2003 letter of intent to bid, signed by the president of MPEI allegedly for and on behalf of MPC. They also call attention to the official receipt issued to MPC, acknowledging payment for the bidding documents, as proof that it was the “consortium” that participated in the bidding process.

We do not agree. The March 7, 2003 letter, signed by only one signatory -- “Willy U. Yu, President, Mega Pacific eSolutions, Inc., (Lead Company/ Proponent) For: Mega Pacific Consortium” -- and without any further proof, does not by itself prove the existence of the consortium. It does not show that MPEI or its president have been duly pre-authorized by the other members of the putative consortium to represent them, to bid on their collective behalf and, more important, to commit them jointly and severally to the bid undertakings. The letter is purely self-serving and uncorroborated.

Neither does an official receipt issued to MPC, acknowledging payment for the bidding documents, constitute proof that it was the purported consortium that participated in the bidding. Such receipts are issued by cashiers without any legally sufficient inquiry as to the real identity or existence of the supposed payor.

To assure itself properly of the due existence (as well as eligibility and qualification) of the putative consortium, Comelec’s BAC should have examined the bidding documents submitted on behalf of MPC. They would have easily discovered the following fatal flaws.

Two-Envelope, Two-Stage System

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As stated earlier in our factual presentation, the public bidding system designed by Comelec under its RFP (Request for Proposal for the Automation of the 2004 Election) mandated the use of a two-envelope, two-stage system. A bidder’s first envelope (Eligibility Envelope) was meant to establish its eligibility to bid and its qualifications and capacity to perform the contract if its bid was accepted, while the second envelope would be the Bid Envelope itself.

The Eligibility Envelope was to contain legal documents such as articles of incorporation, business registrations, licenses and permits, mayor’s permit, VAT certification, and so forth;technical documents containing documentary evidence to establish the track record of the bidder and its technical and production capabilities to perform the contract; and financial documents, including audited financial statements for the last three years, to establish the bidder’s financial capacity.

In the case of a consortium or joint venture desirous of participating in the bidding, it goes without saying that the Eligibility Envelope would necessarily have to include a copy of the joint venture agreement, the consortium agreement or memorandum of agreement -- or a business plan or some other instrument of similar import -- establishing the due existence, composition and scope of such aggrupation. Otherwise, how would Comelec know who it was dealing with, and whether these parties are qualified and capable of delivering the products and services being offered for bidding?[32]

In the instant case, no such instrument was submitted to Comelec during the bidding process. This fact can be conclusively ascertained by scrutinizing the two-inch thick “Eligibility Requirements” file submitted by Comelec last October 9, 2003, in partial compliance with this Court’s instructions given during the Oral Argument. This file purports to replicate the eligibility documents originally submitted to Comelec by MPEI allegedly on behalf of MPC, in connection with the bidding conducted in March 2003. Included in the file are the incorporation papers and financial statements of the members of the supposed consortium and certain certificates, licenses and permits issued to them.

However, there is no sign whatsoever of any joint venture agreement, consortium agreement, memorandum of agreement, or business plan executed among the members of the purported consortium.

The only logical conclusion is that no such agreement was ever submitted to the Comelec for its consideration, as part of the bidding process.

It thus follows that, prior the award of the Contract, there was no documentary or other basis for Comelec to conclude that a consortium had actually been formed amongst MPEI, SK C&C and WeSolv, along with Election.com and ePLDT.[33] Neither was

there anything to indicate the exact relationships between and among these firms; their diverse roles, undertakings and prestations, if any, relative to the prosecution of the project, the extent of their respective investments (if any) in the supposed consortium or in the project; and the precise nature and extent of their respective liabilities with respect to the contract being offered for bidding. And apart from the self-serving letter of March 7, 2003, there was not even any indication that MPEI was the lead company duly authorized to act on behalf of the others.

So, it necessarily follows that, during the bidding process, Comelec had no basis at all for determining that the alleged consortium really existed and was eligible and qualified; and that the arrangements among the members were satisfactory and sufficient to ensure delivery on the Contract and to protect the government’s interest.

Notwithstanding such deficiencies, Comelec still deemed the “consortium” eligible to participate in the bidding, proceeded to open its Second Envelope, and eventually awarded the bid to it, even though -- per the Comelec’s own RFP -- the BAC should have declared the MPC ineligible to bid and returned the Second (Bid) Envelope unopened.

Inasmuch as Comelec should not have considered MPEI et al. as comprising a consortium or joint venture, it should not have allowed them to avail themselves of the provision in Section 5.4 (b) (i) of the IRR for RA 6957 (the Build-Operate-Transfer Law), as amended by RA 7718. This provision states in part that a joint venture/consortium proponent shall be evaluated based on the individual or collective experience of the member-firms of the joint venture or consortium and of the contractor(s) that it has engaged for the project. Parenthetically, respondents have uniformly argued that the said IRR of RA 6957, as amended, have suppletory application to the instant case.

Hence, had the proponent MPEI been evaluated based solely on its own experience, financial and operational track record or lack thereof, it would surely not have qualified and would have been immediately considered ineligible to bid, as respondents readily admit.

At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily failing to observe its own rules, policies and guidelines with respect to the bidding process, thereby negating a fair, honest and competitive bidding.

Commissioners Not Aware of Consortium

In this regard, the Court is beguiled by the statements of Commissioner Florentino Tuason Jr., given in open court during the Oral Argument last October 7, 2003. The good commissioner affirmed that he was aware, of his own personal knowledge, that there had indeed been a written agreement among the “consortium” members,

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[34] although it was an internal matter among them,[35] and of the fact that it would be presented by counsel for private respondent.[36]

However, under questioning by Chief Justice Hilario G. Davide Jr. and Justice Jose C. Vitug, Commissioner Tuason in effect admitted that, while he was the commissioner-in-charge of Comelec’s Legal Department, he had never seen, even up to that late date, the agreement he spoke of.[37] Under further questioning, he was likewise unable to provide any information regarding the amounts invested into the project by several members of the claimed consortium.[38] A short while later, he admitted that the Commission had not taken a look at the agreement (if any).[39]

He tried to justify his position by claiming that he was not a member of the BAC. Neither was he the commissioner-in-charge of the Phase II Modernization project (the automated election system); but that, in any case, the BAC and the Phase II Modernization Project Team did look into the aspect of the composition of the consortium.

It seems to the Court, though, that even if the BAC or the Phase II Team had taken charge of evaluating the eligibility, qualifications and credentials of the consortium-bidder, still, in all probability, the former would have referred the task to Commissioner Tuason, head of Comelec’s Legal Department. That task was the appreciation and evaluation of the legal effects and consequences of the terms, conditions, stipulations and covenants contained in any joint venture agreement, consortium agreement or a similar document -- assuming of course that any of these was available at the time. The fact that Commissioner Tuason was barely aware of the situation bespeaks the complete absence of such document, or the utter failure or neglect of the Comelec to examine it -- assuming it was available at all -- at the time the award was made on April 15, 2003.

In any event, the Court notes for the record that Commissioner Tuason basically contradicted his statements in open court about there being one written agreement among all the consortium members, when he subsequently referred[40] to the four (4) Memoranda of Agreement (MOAs) executed by them.[41]

At this juncture, one might ask: What, then, if there are four MOAs instead of one or none at all? Isn’t it enough that there are these corporations coming together to carry out the automation project? Isn’t it true, as respondent aver, that nowhere in the RFP issued by Comelec is it required that the members of the joint venture execute a single written agreement to prove the existence of a joint venture. Indeed, the intention to be jointly and severally liable may be evidenced not only by a single joint venture agreement, but also by supplementary documents executed by the parties signifying such intention. What then is the big deal?

The problem is not that there are four agreements instead of only one. The problem is that Comelec never bothered to check. It never based its decision on documents or other proof that would concretely establish the existence of the claimed consortium or joint venture or agglomeration. It relied merely on the self-serving representation in an uncorroborated letter signed by only one individual, claiming that his company represented a “consortium” of several different corporations. It concluded forthwith that a consortium indeed existed, composed of such and such members, and thereafter declared that the entity was eligible to bid.

True, copies of financial statements and incorporation papers of the alleged “consortium” members were submitted. But these papers did not establish the existence of a consortium, as they could have been provided by the companies concerned for purposes other than to prove that they were part of a consortium or joint venture. For instance, the papers may have been intended to show that those companies were each qualified to be a sub-contractor (and nothing more) in a major project. Those documents did not by themselves support the assumption that a consortium or joint venture existed among the companies.

In brief, despite the absence of competent proof as to the existence and eligibility of the alleged consortium (MPC), its capacity to deliver on the Contract, and the members’ joint and several liability therefor, Comelec nevertheless assumed that such consortium existed and was eligible. It then went ahead and considered the bid of MPC, to which the Contract was eventually awarded, in gross violation of the former’s own bidding rules and procedures contained in its RFP. Therein lies Comelec’s grave abuse of discretion.

Sufficiency of the Four Agreements

Instead of one multilateral agreement executed by, and effective and binding on, all the five “consortium members” -- as earlier claimed by Commissioner Tuason in open court -- it turns out that what was actually executed were four (4) separate and distinct bilateral Agreements.[42] Obviously, Comelec was furnished copies of these Agreements only after the bidding process had been terminated, as these were not included in the Eligibility Documents. These Agreements are as follows:

· A Memorandum of Agreement between MPEI and SK C&C

· A Memorandum of Agreement between MPEI and WeSolv

· A “Teaming Agreement” between MPEI and Election.com Ltd.

· A “Teaming Agreement” between MPEI and ePLDT.

In sum, each of the four different and separate bilateral Agreements is valid and binding only between MPEI and the other contracting party, leaving the other

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“consortium” members total strangers thereto. Under this setup, MPEI dealt separately with each of the “members,” and the latter (WeSolv, SK C&C, Election.com, and ePLDT) in turn had nothing to do with one another, each dealing only with MPEI.

Respondents assert that these four Agreements were sufficient for the purpose of enabling the corporations to still qualify (even at that late stage) as a consortium or joint venture, since the first two Agreements had allegedly set forth the joint and several undertakings among the parties, whereas the latter two clarified the parties’ respective roles with regard to the Project, with MPEI being the independent contractor and Election.com and ePLDT the subcontractors.

Additionally, the use of the phrase “particular contract” in the Comelec’s Request for Proposal (RFP), in connection with the joint and several liabilities of companies in a joint venture, is taken by them to mean that all the members of the joint venture need not be solidarily liable for the entire project or joint venture, because it is sufficient that the lead company and the member in charge of a particular contract or aspect of the joint venture agree to be solidarily liable.

At this point, it must be stressed most vigorously that the submission of the four bilateral Agreements to Comelec after the end of the bidding process did nothing to eliminate the grave abuse of discretion it had already committed on April 15, 2003.

Deficiencies Have Not Been “Cured”

In any event, it is also claimed that the automation Contract awarded by Comelec incorporates all documents executed by the “consortium” members, even if these documents are not referred to therein. The basis of this assertion appears to be the passages from Section 1.4 of the Contract, which is reproduced as follows:

“All Contract Documents shall form part of the Contract even if they or any one of them is not referred to or mentioned in the Contract as forming a part thereof. Each of the Contract Documents shall be mutually complementary and explanatory of each other such that what is noted in one although not shown in the other shall be considered contained in all, and what is required by any one shall be as binding as if required by all, unless one item is a correction of the other.

“The intent of the Contract Documents is the proper, satisfactory and timely execution and completion of the Project, in accordance with the Contract Documents. Consequently, all items necessary for the proper and timely execution and completion of the Project shall be deemed included in the Contract.”

Thus, it is argued that whatever perceived deficiencies there were in the supplementary contracts -- those entered into by MPEI and the other members of the “consortium” as regards their joint and several undertakings -- have been cured. Better still, such

deficiencies have supposedly been prevented from arising as a result of the above-quoted provisions, from which it can be immediately established that each of the members of MPC assumes the same joint and several liability as the other members.

The foregoing argument is unpersuasive. First, the contract being referred to, entitled “The Automated Counting and Canvassing Project Contract,” is between Comelec and MPEI, not the alleged consortium, MPC. To repeat, it is MPEI -- not MPC -- that is a party to the Contract. Nowhere in that Contract is there any mention of a consortium or joint venture, of members thereof, much less of joint and several liability. Supposedly executed sometime in May 2003,[43] the Contract bears a notarization date of June 30, 2003, and contains the signature of Willy U. Yu signing as president of MPEI (not for and on behalf of MPC), along with that of the Comelec chair. It provides in Section 3.2 that MPEI (not MPC) is to supply the Equipment and perform the Services under the Contract, in accordance with the appendices thereof; nothing whatsoever is said about any consortium or joint venture or partnership.

Second, the portions of Section 1.4 of the Contract reproduced above do not have the effect of curing (much less preventing) deficiencies in the bilateral agreements entered into by MPEI with the other members of the “consortium,” with respect to their joint and several liabilities. The term “Contract Documents,” as used in the quoted passages of Section 1.4, has a well-defined meaning and actually refers only to the following documents:

· The Contract itself along with its appendices

· The Request for Proposal (also known as “Terms of Reference”) issued by the Comelec, including the Tender Inquiries and Bid Bulletins

· The Tender Proposal submitted by MPEI

In other words, the term “Contract Documents” cannot be understood as referring to or including the MOAs and the Teaming Agreements entered into by MPEI with SK C&C, WeSolv, Election.com and ePLDT. This much is very clear and admits of no debate. The attempt to use the provisions of Section 1.4 to shore up the MOAs and the Teaming Agreements is simply unwarranted.

Third and last, we fail to see how respondents can arrive at the conclusion that, from the above-quoted provisions, it can be immediately established that each of the members of MPC assumes the same joint and several liability as the other members. Earlier, respondents claimed exactly the opposite -- that the two MOAs (between MPEI and SK C&C, and between MPEI and WeSolv) had set forth the joint and several undertakings among the parties; whereas the two Teaming Agreements clarified the parties’ respective roles with regard to the Project, with

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MPEI being the independent contractor and Election.com and ePLDT the subcontractors.

Obviously, given the differences in their relationships, their respective liabilities cannot be the same. Precisely, the very clear terms and stipulations contained in the MOAs and the Teaming Agreements -- entered into by MPEI with SK C&C, WeSolv, Election.com and ePLDT -- negate the idea that these “members” are on a par with one another and are, as such, assuming the same joint and several liability.

Moreover, respondents have earlier seized upon the use of the term “particular contract” in the Comelec’s Request for Proposal (RFP), in order to argue that all the members of the joint venture did not need to be solidarily liable for the entire project or joint venture. It was sufficient that the lead company and the member in charge of a particular contract or aspect of the joint venture would agree to be solidarily liable. The glaring lack of consistency leaves us at a loss. Are respondents trying to establish the same joint and solidary liability among all the “members” or not?

Enforcement of Liabilities Problematic

Next, it is also maintained that the automation Contract between Comelec and the MPEI confirms the solidary undertaking of the lead company and the consortium member concernedfor each particular Contract, inasmuch as the position of MPEI and anyone else performing the services contemplated under the Contract is described therein as that of an independent contractor.

The Court does not see, however, how this conclusion was arrived at. In the first place, the contractual provision being relied upon by respondents is Article 14, “Independent Contractors,” which states: “Nothing contained herein shall be construed as establishing or creating between the COMELEC and MEGA the relationship of employee and employer or principal and agent, it being understood that the position of MEGA and of anyone performing the Services contemplated under this Contract, is that of an independent contractor.”

Obviously, the intent behind the provision was simply to avoid the creation of an employer-employee or a principal-agent relationship and the complications that it would produce. Hence, the Article states that the role or position of MPEI, or anyone else performing on its behalf, is that of an independent contractor. It is obvious to the Court that respondents arestretching matters too far when they claim that, because of this provision, the Contract in effect confirms the solidary undertaking of the lead company and the consortium member concerned for the particular phase of the project. This assertion is an absolute non sequitur.

Enforcement of Liabilities Under the Civil Code Not Possible

In any event, it is claimed that Comelec may still enforce the liability of the “consortium” members under the Civil Code provisions on partnership, reasoning that MPEI et al. represented themselves as partners and members of MPC for purposes of bidding for the Project. They are, therefore, liable to the Comelec to the extent that the latter relied upon such representation. Their liability as partners is solidary with respect to everything chargeable to the partnership under certain conditions.

The Court has two points to make with respect to this argument. First, it must be recalled that SK C&C, WeSolv, Election.com and ePLDT never represented themselves as partners and members of MPC, whether for purposes of bidding or for something else. It was MPEI alone that represented them to be members of a “consortium” it supposedly headed. Thus, its acts may not necessarily be held against the other “members.”

Second, this argument of the OSG in its Memorandum [44] might possibly apply in the absence of a joint venture agreement or some other writing that discloses the relationship of the “members” with one another. But precisely, this case does not deal with a situation in which there is nothing in writing to serve as reference, leaving Comelec to rely on mere representations and therefore justifying a falling back on the rules on partnership. For, again, the terms and stipulations of the MOAs entered into by MPEI with SK C&C and WeSolv, as well as the Teaming Agreements of MPEI with Election.com and ePLDT (copies of which have been furnished the Comelec) are very clear with respect to the extent and the limitations of the firms’ respective liabilities.

In the case of WeSolv and SK C&C, their MOAs state that their liabilities, while joint and several with MPEI, are limited only to the particular areas of work wherein their services are engaged or their products utilized. As for Election.com and ePLDT, their separate “Teaming Agreements” specifically ascribe to them the role of subcontractor vis-à-vis MPEI as contractor and, based on the terms of their particular agreements, neither Election.com nor ePLDT is, with MPEI, jointly and severally liable to Comelec.[45] It follows then that in the instant case, there is no justification for anyone, much less Comelec, to resort to the rules on partnership and partners’ liabilities.

Eligibility of a Consortium Based on the Collective Qualifications of Its Members

Respondents declare that, for purposes of assessing the eligibility of the bidder, the members of MPC should be evaluated on a collective basis. Therefore, they contend, the failure of MPEI to submit financial statements (on account of its recent incorporation) should not by itself disqualify MPC, since the other members of the “consortium” could meet the criteria set out in the RFP.

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Thus, according to respondents, the collective nature of the undertaking of the members of MPC, their contribution of assets and sharing of risks, and the community of their interest in the performance of the Contract lead to these reasonable conclusions: (1) that their collective qualifications should be the basis for evaluating their eligibility; (2) that the sheer enormity of the project renders it improbable to expect any single entity to be able to comply with all the eligibility requirements and undertake the project by itself; and (3) that, as argued by the OSG, the RFP allows bids from manufacturers, suppliers and/or distributors that have formed themselves into a joint venture, in recognition of the virtual impossibility of a single entity’s ability to respond to the Invitation to Bid.

Additionally, argues the Comelec, the Implementing Rules and Regulations of RA 6957 (the Build-Operate-Transfer Law) as amended by RA 7718 would be applicable, as proponents of BOT projects usually form joint ventures or consortiums. Under the IRR, a joint venture/consortium proponent shall be evaluated based on the individual or the collective experience of the member-firms of the joint venture/consortium and of the contractors the proponent has engaged for the project.

Unfortunately, this argument seems to assume that the “collective” nature of the undertaking of the members of MPC, their contribution of assets and sharing of risks, and the “community” of their interest in the performance of the Contract entitle MPC to be treated as a joint venture or consortium; and to be evaluated accordingly on the basis of the members’ collective qualifications when, in fact, the evidence before the Court suggest otherwise.

This Court in Kilosbayan v. Guingona[46] defined joint venture as “an association of persons or companies jointly undertaking some commercial enterprise; generally, all contribute assets and share risks. It requires a community of interest in the performance of the subject matter, a right to direct and govern the policy in connection therewith, and [a] duty, which may be altered by agreement to share both in profit and losses.”

Going back to the instant case, it should be recalled that the automation Contract with Comelec was not executed by the “consortium” MPC -- or by MPEI for and on behalf of MPC -- but by MPEI, period. The said Contract contains no mention whatsoever of any consortium or members thereof. This fact alone seems to contradict all the suppositions about a joint undertaking that would normally apply to a joint venture or consortium: that it is a commercial enterprise involving a community of interest, a sharing of risks, profits and losses, and so on.

Now let us consider the four bilateral Agreements, starting with the Memorandum of Agreement between MPEI and WeSolv Open Computing, Inc., dated March 5,

2003. The body of the MOA consists of just seven (7) short paragraphs that would easily fit in one page. It reads as follows:

“1. The parties agree to cooperate in successfully implementing the Project in the substance and form as may be most beneficial to both parties and other subcontractors involved in the Project.

“2. Mega Pacific shall be responsible for any contract negotiations and signing with the COMELEC and, subject to the latter’s approval, agrees to give WeSolv an opportunity to be present at meetings with the COMELEC concerning WeSolv’s portion of the Project.

“3. WeSolv shall be jointly and severally liable with Mega Pacific only for the particular products and/or services supplied by the former for the Project.

“4. Each party shall bear its own costs and expenses relative to this agreement unless otherwise agreed upon by the parties.

“5. The parties undertake to do all acts and such other things incidental to, necessary or desirable or the attainment of the objectives and purposes of this Agreement.

“6. In the event that the parties fail to agree on the terms and conditions of the supply of the products and services including but not limited to the scope of the products and services to be supplied and payment terms, WeSolv shall cease to be bound by its obligations stated in the aforementioned paragraphs.

“7. Any dispute arising from this Agreement shall be settled amicably by the parties whenever possible. Should the parties be unable to do so, the parties hereby agree to settle their dispute through arbitration in accordance with the existing laws of the Republic of the Philippines.” (Underscoring supplied.)

Even shorter is the Memorandum of Agreement between MPEI and SK C&C Co. Ltd., dated March 9, 2003, the body of which consists of only six (6) paragraphs, which we quote:

“1. All parties agree to cooperate in achieving the Consortium’s objective of successfully implementing the Project in the substance and form as may be most beneficial to the Consortium members and in accordance w/ the demand of the RFP.

“2. Mega Pacific shall have full powers and authority to represent the Consortium with the Comelec, and to enter and sign, for and in behalf of its members any and all agreement/s which maybe required in the implementation of the Project.

“3. Each of the individual members of the Consortium shall be jointly and severally liable with the Lead Firm for the particular products and/or services supplied by such

SESSION XIV | 21

individual member for the project, in accordance with their respective undertaking or sphere of responsibility.

“4. Each party shall bear its own costs and expenses relative to this agreement unless otherwise agreed upon by the parties.

“5. The parties undertake to do all acts and such other things incidental to, necessary or desirable for the attainment of the objectives and purposes of this Agreement.

“6. Any dispute arising from this Agreement shall be settled amicably by the parties whenever possible. Should the parties be unable to do so, the parties hereby agree to settle their dispute through arbitration in accordance with the existing laws of the Republic of the Philippines.” (Underscoring supplied.)

It will be noted that the two Agreements quoted above are very similar in wording. Neither of them contains any specifics or details as to the exact nature and scope of the parties’ respective undertakings, performances and deliverables under the Agreement with respect to the automation project. Likewise, the two Agreements are quite bereft of pesos-and-centavos data as to the amount of investments each party contributes, its respective share in the revenues and/or profit from the Contract with Comelec, and so forth -- all of which are normal for agreements of this nature. Yet, according to public and private respondents, the participation of MPEI, WeSolv and SK C&C comprises fully 90 percent of the entire undertaking with respect to the election automation project, which is worth about P1.3 billion.

As for Election.com and ePLDT, the separate “Teaming Agreements” they entered into with MPEI for the remaining 10 percent of the entire project undertaking are ironically much longer and more detailed than the MOAs discussed earlier. Although specifically ascribing to them the role of subcontractor vis-à-vis MPEI as contractor, these Agreements are, however, completely devoid of any pricing data or payment terms. Even the appended Schedules supposedly containing prices of goods and services are shorn of any price data. Again, as mentioned earlier, based on the terms of their particular Agreements, neither Election.com nor ePLDT -- with MPEI -- is jointly and severally liable to Comelec.

It is difficult to imagine how these bare Agreements -- especially the first two -- could be implemented in practice; and how a dispute between the parties or a claim by Comelec against them, for instance, could be resolved without lengthy and debilitating litigations. Absent any clear-cut statement as to the exact nature and scope of the parties’ respective undertakings, commitments, deliverables and covenants, one party or another can easily dodge its obligation and deny or contest its liability under the Agreement; or claim that it is the other party that should have delivered but failed to.

Likewise, in the absence of definite indicators as to the amount of investments to be contributed by each party, disbursements for expenses, the parties’ respective shares in the profits and the like, it seems to the Court that this situation could readily give rise to all kinds of misunderstandings and disagreements over money matters.

Under such a scenario, it will be extremely difficult for Comelec to enforce the supposed joint and several liabilities of the members of the “consortium.” The Court is not even mentioning the possibility of a situation arising from a failure of WeSolv and MPEI to agree on the scope, the terms and the conditions for the supply of the products and services under the Agreement. In that situation, by virtue of paragraph 6 of its MOA, WeSolv would perforce cease to be bound by its obligations -- including its joint and solidary liability with MPEI under the MOA -- and could forthwith disengage from the project. Effectively, WeSolv could at any time unilaterally exit from its MOA with MPEI by simply failing to agree. Where would that outcome leave MPEI and Comelec?

To the Court, this strange and beguiling arrangement of MPEI with the other companies does not qualify them to be treated as a consortium or joint venture, at least of the type that government agencies like the Comelec should be dealing with. With more reason is it unable to agree to the proposal to evaluate the members of MPC on a collective basis.

In any event, the MPC members claim to be a joint venture/consortium; and respondents have consistently been arguing that the IRR for RA 6957, as amended, should be applied to the instant case in order to allow a collective evaluation of consortium members. Surprisingly, considering these facts, respondents have not deemed it necessary for MPC members to comply with Section 5.4 (a) (iii) of the IRR for RA 6957 as amended.

According to the aforementioned provision, if the project proponent is a joint venture or consortium, the members or participants thereof are required to submit a sworn statement that, if awarded the contract, they shall bind themselves to be jointly, severally and solidarily liable for the project proponent’s obligations thereunder. This provision was supposed to mirror Section 5 of RA 6957, as amended, which states: “In all cases, a consortium that participates in a bid must present proof that the members of the consortium have bound themselves jointly and severally to assume responsibility for any project. The withdrawal of any member of the consortium prior to the implementation of the project could be a ground for the cancellation of the contract.”

The Court has certainly not seen any joint and several undertaking by the MPC members that even approximates the tenor of that which is described above. We fail to see why respondents should invoke the IRR if it is for their benefit, but refuse to comply with it otherwise.

SESSION XIV | 22

B. DOST Technical Tests Flunked by the Automated Counting Machines

Let us now move to the second subtopic, which deals with the substantive issue: the ACM’s failure to pass the tests of the Department of Science and Technology (DOST).

After respondent “consortium” and the other bidder, TIM, had submitted their respective bids on March 10, 2003, the Comelec’s BAC -- through its Technical Working Group (TWG) and the DOST -- evaluated their technical proposals. Requirements that were highly technical in nature and that required the use of certain equipment in the evaluation process were referred to the DOST for testing. The Department reported thus:

TEST RESULTS MATRIX[47]

[Technical Evaluation of Automated Counting Machine]

KEY REQUIREMENTS

[QUESTIONS]

MEGA-PACIFIC

CONSORTIUM

TOTAL INFORMATION MANAGEMENT

YES NO YES NO

1. Does the machine have an accuracy rating of at least 99.995 percent

At COLD environmental condition

At NORMAL environmental conditions

At HARSH environmental conditions

√

√

√

√

√

√

2. Accurately records and reports the date and time of the start and end of counting of ballots per precinct?

√ √

3. Prints election returns without any loss of date during generation of such reports?

√ √

4. Uninterruptible back-up power system, that will engage

√ √

immediately to allow operation of at least 10 minutes after outage, power surge or abnormal electrical occurrences?

5. Machine reads two-sided ballots in one pass?

√

√

Note: This particular

requirement needs further

verification

6. Machine can detect previously counted ballots and prevent previously counted ballots from being counted more than once?

√ √

7. Stores results of counted votes by precinct in external (removable) storage device?

√

√



verification

8. Data stored in external media is encrypted?

√

√



verification

9. Physical key or similar device allows, limits, or restricts operation of the machine?

√ √

10. CPU speed is at least 400mHz?

√ √

Note: This

SESSION XIV | 23

particular requirement

needs further

verification

11. Port to allow use of dot-matrix printers?

√ √

12. Generates printouts of the election returns in a format specified by the COMELEC?

Generates printouts

In format specified by COMELEC

√

√

√

√

13. Prints election returns without any loss of data during generation of such report?

√ √

14. Generates an audit trail of the counting machine, both hard copy and soft copy?

Hard copy

Soft copy

√

√

√

√

Note: This particular requirement needs further verification

15. Does the City/Municipal Canvassing System consolidate

√ √

results from all precincts within it using the encrypted soft copy of the data generated by the counting machine and stored on the removable data storage device?



verification

16. Does the City/Municipal Canvassing System consolidate results from all precincts within it using the encrypted soft copy of the data generated by the counting machine and transmitted through an electronic transmission media?

√

Note: This

particular


verification

√



verification

17. Does the system output a Zero City/Municipal Canvass Report, which is printed on election day prior to the conduct of the actual canvass operation, that shows that all totals for all the votes for all the candidates and other information, are indeed zero or null?

√

√



verification

18. Does the system consolidate results from all precincts in the city/municipality using the data storage device coming from the counting machine?

√

√



verification

19. Is the machine 100% accurate?

√ √


requirement SESSION XIV | 24

needs further

verification

20. Is the Program able to detect previously downloaded precinct results and prevent these from being inputted again into the System?

√

√



verification

21. The System is able to print the specified reports and the audit trail without any loss of data during generation of the above-mentioned reports?

Prints specified reports

Audit Trail

√

√

√

√



verification

22. Can the result of the city/municipal consolidation be stored in a data storage device?

√

√



verification

23. Does the system consolidate results from all precincts in the provincial/district/ national using the data storage device from

√ √


requirement

different levels of consolidation?needs further

verification

24. Is the system 100% accurate?

√

√



verification

25. Is the Program able to detect previously downloaded precinct results and prevent these from being inputted again into the System?

√

√



verification

26. The System is able to print the specified reports and the audit trail without any loss of data during generation of the abovementioned reports?

Prints specified reports

Audit Trail

√

√

√

√



verification

SESSION XIV | 25

27. Can the results of the provincial/district/national consolidation be stored in a data storage device?

√

√



verification

According to respondents, it was only after the TWG and the DOST had conducted their separate tests and submitted their respective reports that the BAC, on the basis of these reports formulated its comments/recommendations on the bids of the consortium and TIM.

The BAC, in its Report dated April 21, 2003, recommended that the Phase II project involving the acquisition of automated counting machines be awarded to MPEI. It said:

“After incisive analysis of the technical reports of the DOST and the Technical Working Group for Phase II – Automated Counting Machine, the BAC considers adaptability to advances in modern technology to ensure an effective and efficient method, as well as the security and integrity of the system.

“The results of the evaluation conducted by the TWG and that of the DOST (14 April 2003 report), would show the apparent advantage of Mega-Pacific over the other competitor, TIM.

“The BAC further noted that both Mega-Pacific and TIM obtained some ‘failed marks’ in the technical evaluation. In general, the ‘failed marks’ of Total Information Management as enumerated above affect the counting machine itself which are material in nature, constituting non-compliance to the RFP. On the other hand, the ‘failed marks’ of Mega-Pacific are mere formalities on certain documentary requirements which the BAC may waive as clearly indicated in the Invitation to Bid.

“In the DOST test, TIM obtained 12 failed marks and mostly attributed to the counting machine itself as stated earlier. These are requirements of the RFP and therefore the BAC cannot disregard the same.

“Mega-Pacific failed in 8 items however these are mostly on the software which can be corrected by reprogramming the software and therefore can be readily corrected.

“The BAC verbally inquired from DOST on the status of the retest of the counting machines of the TIM and was informed that the report will be forthcoming after the holy week. The BAC was informed that the retest is on a different parameters they’re

being two different machines being tested. One purposely to test if previously read ballots will be read again and the other for the other features such as two sided ballots.

“The said machine and the software therefore may not be considered the same machine and program as submitted in the Technical proposal and therefore may be considered an enhancement of the original proposal.

“Advance information relayed to the BAC as of 1:40 PM of 15 April 2003 by Executive Director Ronaldo T. Viloria of DOST is that the result of the test in the two counting machines of TIM contains substantial errors that may lead to the failure of these machines based on the specific items of the RFP that DOST has to certify.

OPENING OF FINANCIAL BIDS

“The BAC on 15 April 2003, after notifying the concerned bidders opened the financial bids in their presence and the results were as follows:

Mega-Pacific:

Option 1 – Outright purchase: Bid Price of Php1,248,949,088.00

Option 2 – Lease option:

70% Down payment of cost of hardware or Php642,755,757.07

Remainder payable over 50 months or a total of Php642,755,757.07

Discount rate of 15% p.a. or 1.2532% per month.

Total Number of Automated Counting Machine – 1,769 ACMs (Nationwide)

TIM:

Total Bid Price – Php1,297,860,560.00

Total Number of Automated Counting Machine – 2,272 ACMs (Mindanao and NCR only)

“Premises considered, it appears that the bid of Mega Pacific is the lowest calculated responsive bid, and therefore, the Bids and Awards Committee (BAC) recommends that the Phase II project re Automated Counting Machine be awarded to Mega Pacific eSolutions, Inc.”[48]

The BAC, however, also stated on page 4 of its Report: “Based on the 14 April 2003 report (Table 6) of the DOST, it appears that both Mega-Pacific and TIM (Total Information Management Corporation) failed to meet some of the requirements. Below is a comparative presentation of the requirements wherein Mega-Pacific or TIM or both of them failed: x x x.” What followed was a list of “key

SESSION XIV | 26

requirements,” referring to technical requirements, and an indication of which of the two bidders had failed to meet them.

Failure to Meet the Required Accuracy Rating

The first of the key requirements was that the counting machines were to have an accuracy rating of at least 99.9995 percent. The BAC Report indicates that both Mega Pacific and TIM failed to meet this standard.

The key requirement of accuracy rating happens to be part and parcel of the Comelec’s Request for Proposal (RFP). The RFP, on page 26, even states that the ballot counting machines and ballot counting software “must have an accuracy rating of 99.9995% (not merely 99.995%) or better as certified by a reliable independent testing agency.”

When questioned on this matter during the Oral Argument, Commissioner Borra tried to wash his hands by claiming that the required accuracy rating of 99.9995 percent had been set by a private sector group in tandem with Comelec. He added that the Commission had merely adopted the accuracy rating as part of the group’s recommended bid requirements, which it had not bothered to amend even after being advised by DOST that such standard was unachievable. This excuse, however, does not in any way lessen Comelec’s responsibility to adhere to its own published bidding rules, as well as to see to it that the consortium indeed meets the accuracy standard. Whichever accuracy rating is the right standard -- whether 99.995 or 99.9995 percent -- the fact remains that the machines of the so-called “consortium” failed to even reach the lesser of the two. On this basis alone, it ought to have been disqualified and its bid rejected outright.

At this point, the Court stresses that the essence of public bidding is violated by the practice of requiring very high standards or unrealistic specifications that cannot be met -- like the 99.9995 percent accuracy rating in this case -- only to water them down after the bid has been award. Such scheme, which discourages the entry of prospective bona fide bidders, is in fact a sure indication of fraud in the bidding, designed to eliminate fair competition. Certainly, if no bidder meets the mandatory requirements, standards or specifications, then no award should be made and a failed bidding declared.

Failure of Software to Detect Previously Downloaded Data

Furthermore, on page 6 of the BAC Report, it appears that the “consortium” as well as TIM failed to meet another key requirement -- for the counting machine’s software program to beable to detect previously downloaded precinct results and to prevent these from being entered again into the counting machine. This same deficiency on

the part of both bidders reappears on page 7 of the BAC Report, as a result of the recurrence of their failure to meet the said key requirement.

That the ability to detect previously downloaded data at different canvassing or consolidation levels is deemed of utmost importance can be seen from the fact that it is repeated three times in the RFP. On page 30 thereof, we find the requirement that the city/municipal canvassing system software must be able to detect previously downloaded precinct results and prevent these from being “inputted” again into the system. Again, on page 32 of the RFP, we read that the provincial/district canvassing system software must be able to detect previously downloaded city/municipal results and prevent these from being “inputted” again into the system. And once more, on page 35 of the RFP, we find the requirement that the nationalcanvassing system software must be able to detect previously downloaded provincial/district results and prevent these from being “inputted” again into the system.

Once again, though, Comelec chose to ignore this crucial deficiency, which should have been a cause for the gravest concern. Come May 2004, unscrupulous persons may take advantage of and exploit such deficiency by repeatedly downloading and feeding into the computers results favorable to a particular candidate or candidates. We are thus confronted with the grim prospect of election fraud on a massive scale by means of just a few key strokes. The marvels and woes of the electronic age!

Inability to Print the Audit Trail

But that grim prospect is not all. The BAC Report, on pages 6 and 7, indicate that the ACMs of both bidders were unable to print the audit trail without any loss of data. In the case of MPC, the audit trail system was “not yet incorporated” into its ACMs.

This particular deficiency is significant, not only to this bidding but to the cause of free and credible elections. The purpose of requiring audit trails is to enable Comelec to trace and verify the identities of the ACM operators responsible for data entry and downloading, as well as the times when the various data were downloaded into the canvassing system, in order to forestall fraud and to identify the perpetrators.

Thus, the RFP on page 27 states that the ballot counting machines and ballot counting software must print an audit trail of all machine operations for documentation and verification purposes. Furthermore, the audit trail must be stored on the internal storage device and be available on demand for future printing and verifying. On pages 30-31, the RFP also requires that the city/municipal canvassing system software be able to print an audit trail of the canvassing operations, including therein such data as the date and time the canvassing program was started, the log-in of the authorized users (the identity of the machine operators), the date and time the canvass data were downloaded

SESSION XIV | 27

into the canvassing system, and so on and so forth. On page 33 of the RFP, we find the same audit trail requirement with respect to the provincial/district canvassing system software; and again on pages 35-36 thereof, the same audit trail requirement with respect to the national canvassing system software.

That this requirement for printing audit trails is not to be lightly brushed aside by the BAC or Comelec itself as a mere formality or technicality can be readily gleaned from the provisions of Section 7 of RA 8436, which authorizes the Commission to use an automated system for elections.

The said provision which respondents have quoted several times, provides that ACMs are to possess certain features divided into two classes: those that the statute itself considersmandatory and other features or capabilities that the law deems optional. Among those considered mandatory are “provisions for audit trails”! Section 7 reads as follows: “The Systemshall contain the following features: (a) use of appropriate ballots; (b) stand-alone machine which can count votes and an automated system which can consolidate the results immediately; (c) with provisions for audit trails; (d) minimum human intervention; and (e) adequate safeguard/security measures.” (Italics and emphases supplied.)

In brief, respondents cannot deny that the provision requiring audit trails is indeed mandatory, considering the wording of Section 7 of RA 8436. Neither can Respondent Comelec deny that it has relied on the BAC Report, which indicates that the machines or the software was deficient in that respect. And yet, the Commission simply disregarded this shortcoming and awarded the Contract to private respondent, thereby violating the very law it was supposed to implement.

C. Inadequacy of Post Facto Remedial Measures

Respondents argue that the deficiencies relating to the detection of previously downloaded data, as well as provisions for audit trails, are mere shortcomings or minor deficiencies in software or programming, which can be rectified. Perhaps Comelec simply relied upon the BAC Report, which states on page 8 thereof that “Mega Pacific failed in 8 items[;] however these are mostly on the software which can be corrected by re-programming x x x and therefore can be readily corrected.”

The undersigned ponente’s questions, some of which were addressed to Commissioner Borra during the Oral Argument, remain unanswered to this day. First of all, who made the determination that the eight “fail” marks of Mega Pacific were on account of the software -- was it DOST or TWG? How can we be sure these failures were not the results of machine defects? How was it determined that the software could actually be re-programmed and thereby rectified? Did a qualified technical expert read and analyze the source code [ 4 9 ] for the programs and conclude that these could be

saved and remedied? (Such determination cannot be done by any other means save by the examination and analysis of the source code.)

Who was this qualified technical expert? When did he carry out the study? Did he prepare a written report on his findings? Or did the Comelec just make a wild guess? It does not follow that all defects in software programs can be rectified, and the programs saved. In the information technology sector, it is common knowledge that there are many badly written programs, with significant programming errors written into them; hence it does not make economic sense to try to correct the programs; instead, programmers simply abandon them and just start from scratch. There’s no telling if any of these programs is unrectifiable, unless a qualified programmer reads the source code.

And if indeed a qualified expert reviewed the source code, did he also determine how much work would be needed to rectify the programs? And how much time and money would be spent for that effort? Who would carry out the work? After the rectification process, who would ascertain and how would it be ascertained that the programs have indeed been properly rectified, and that they would work properly thereafter? And of course, the most important question to ask: could the rectification be done in time for the elections in 2004?

Clearly, none of the respondents bothered to think the matter through. Comelec simply took the word of the BAC as gospel truth, without even bothering to inquire from DOST whether it was true that the deficiencies noted could possibly be remedied by re-programming the software. Apparently, Comelec did not care about the software, but focused only on purchasing the machines.

What really adds to the Court’s dismay is the admission made by Commissioner Borra during the Oral Argument that the software currently being used by Comelec was merely the “demo” version, inasmuch as the final version that would actually be used in the elections was still being developed and had not yet been finalized.

It is not clear when the final version of the software would be ready for testing and deployment. It seems to the Court that Comelec is just keeping its fingers crossed and hoping the final product would work. Is there a “Plan B” in case it does not? Who knows? But all these software programs are part and parcel of the bidding and the Contract awarded to the Consortium. Why is it that the machines are already being brought in and paid for, when there is as yet no way of knowing if the final version of the software would be able to run them properly, as well as canvass and consolidate the results in the manner required?

The counting machines, as well as the canvassing system, will never work properly without the correct software programs. There is an old adage that is still valid

SESSION XIV | 28

to this day: “Garbage in, garbage out.” No matter how powerful, advanced and sophisticated the computers and the servers are, if the software being utilized is defective or has been compromised, the results will be no better than garbage. And to think that what is at stake here is the 2004 national elections -- the very basis of our democratic life.

Correction of Defects?

To their Memorandum, public respondents proudly appended 19 Certifications issued by DOST declaring that some 285 counting machines had been tested and had passed the acceptance testing conducted by the Department on October 8-18, 2003. Among those tested were some machines that had failed previous tests, but had undergone adjustments and thus passed re-testing.

Unfortunately, the Certifications from DOST fail to divulge in what manner and by what standards or criteria the condition, performance and/or readiness of the machines were re-evaluated and re-appraised and thereafter given the passing mark. Apart from that fact, the remedial efforts of respondents were, not surprisingly, apparently focused again on the machines -- the hardware. Nothing 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 re-tested, if nothing was done about the programming defects and deficiencies, the same danger of massive electoral fraud remains. As anyone who has a modicum of knowledge of computers would say, “That’s elementary!”

And only last December 5, 2003, an Inq7.net news report quoted the Comelec chair as saying that the new automated poll system would be used nationwide in May 2004, even as the software for the system remained unfinished. It also reported that a certain Titus Manuel of the Philippine Computer Society, which was helping Comelec test the hardware and software, said that the software for the counting still had to be submitted on December 15, while the software for the canvassing was due in early January.

Even as Comelec continues making payments for the ACMs, we keep asking ourselves: who is going to ensure that the software would be tested and would work properly?

At any rate, the re-testing of the machines and/or the 100 percent testing of all machines (testing of every single unit) would not serve to eradicate the grave abuse of discretion already committed by Comelec when it awarded the Contract on April 15, 2003, despite the obvious and admitted flaws in the bidding process, the failure of the

“winning bidder” to qualify, and the inability of the ACMs and the intended software to meet the bid requirements and rules.

Comelec’s Latest “Assurances” Are Unpersuasive

Even the latest pleadings filed by Comelec do not serve to allay our apprehensions. They merely affirm and compound the serious violations of law and gravely abusive acts it has committed. Let us examine them.

The Resolution issued by this Court on December 9, 2003 required respondents to inform it as to the number of ACMs delivered and paid for, as well as the total payment made to date for the purchase thereof. They were likewise instructed to submit a certification from the DOST attesting to the number of ACMs tested, the number found to be defective; and “whether the reprogrammed software has been tested and found to have complied with the requirements under Republic Act No. 8436.”[50]

In its “Partial Compliance and Manifestation” dated December 29, 2003, Comelec informed the Court that 1,991 ACMs had already been delivered to the Commission as of that date. It further certified that it had already paid the supplier the sum of P849,167,697.41, which corresponded to 1,973 ACM units that had passed the acceptance testing procedures conducted by the MIRDC-DOST[51] and which had therefore been accepted by the poll body.

In the same submission, for the very first time, Comelec also disclosed to the Court the following:

“The Automated Counting and Canvassing Project involves not only the manufacturing of the ACM hardware but also the development of three (3) types of software, which are intended for use in the following:

1. Evaluation of Technical Bids

2. Testing and Acceptance Procedures

3. Election Day Use.”

Purchase of the First Type of Software Without Evaluation

In other words, the first type of software was to be developed solely for the purpose of enabling the evaluation of the bidder’s technical bid. Comelec explained thus: “In addition to the presentation of the ACM hardware, the bidders were required to develop a ‘base’ software program that will enable the ACM to function properly. Since the software program utilized during the evaluation of bids is not the actual software program to be employed on election day, there being two (2) other types of software program that will still have to be developed and thoroughly tested prior to actual election day use, defects in the ‘base’ software that can be readily

SESSION XIV | 29

corrected by reprogramming are considered minor in nature, and may therefore be waived.”

In short, Comelec claims that it evaluated the bids and made the decision to award the Contract to the “winning” bidder partly on the basis of the operation of the ACMs running a “base” software. That software was therefore nothing but a sample or “demo” software, which would not be the actual one that would be used on election day. Keeping in mind that the Contract involves the acquisition of not just the ACMs or the hardware, but also the software that would run them, it is now even clearer that the Contract was awarded without Comelec having seen, much less evaluated, the final product -- the software that would finally be utilized come election day. (Not even the “near-final” product, for that matter).

What then was the point of conducting the bidding, when the software that was the subject of the Contract was still to be created and could conceivably undergo innumerable changes before being considered as being in final form? And that is not all!

No Explanation for Lapses in the Second Type of Software

The second phase, allegedly involving the second type of software, is simply denominated “Testing and Acceptance Procedures.” As best as we can construe, Comelec is claiming that this second type of software is also to be developed and delivered by the supplier in connection with the “testing and acceptance” phase of the acquisition process. The previous pleadings, though -- including the DOST reports submitted to this Court -- have not heretofore mentioned any statement, allegation or representation to the effect that a particular set of software was to be developed and/or delivered by the supplier in connection with the testing and acceptance of delivered ACMs.

What the records do show is that the imported ACMs were subjected to the testing and acceptance process conducted by the DOST. Since the initial batch delivered included a high percentage of machines that had failed the tests, Comelec asked the DOST to conduct a 100 percent testing; that is, to test every single one of the ACMs delivered. Among the machines tested on October 8 to 18, 2003, were some units that had failed previous tests but had subsequently been re-tested and had passed. To repeat, however, until now, there has never been any mention of a second set or type of software pertaining to the testing and acceptance process.

In any event, apart from making that misplaced and uncorroborated claim, Comelec in the same submission also professes (in response to the concerns expressed by this Court) thatthe reprogrammed software has been tested and found to have complied with the requirements of RA 8436. It reasoned thus: “Since the software

program is an inherent element in the automated counting system, the certification issued by the MIRDC-DOST that one thousand nine hundred seventy-three (1,973) units passed the acceptance test procedures is an official recognition by the MIRDC-DOST that the software component of the automated election system, which has been reprogrammed to comply with the provisions of Republic Act No. 8436 as prescribed in the Ad Hoc Technical Evaluation Committee’s ACM Testing and Acceptance Manual, has passed the MIRDC-DOST tests.”

The facts do not support this sweeping statement of Comelec. A scrutiny of the MIRDC-DOST letter dated December 15, 2003,[52] which it relied upon, does not justify its grand conclusion. For clarity’s sake, we quote in full the letter-certification, as follows:

“15 December 2003

“HON. RESURRECCION Z. BORRA

Commissioner-in-Charge

Phase II, Modernization Project

Commission on Elections

Intramuros, Manila

Attention: Atty. Jose M. Tolentino, Jr.

Project Director

“Dear Commissioner Borra:

“We are pleased to submit 11 DOST Test Certifications representing 11 lots and covering 158 units of automated counting machines (ACMs) that we have tested from 02-12 December 2003.

“To date, we have tested all the 1,991 units of ACMs, broken down as follow: (sic)

1st batch - 30 units 4th batch - 438 units

2nd batch - 288 units 5th batch - 438 units

3rd batch - 414 units 6th batch - 383 units

“It should be noted that a total of 18 units have failed the test. Out of these 18 units, only one (1) unit has failed the retest.

“Thank you and we hope you will find everything in order.

“Very truly yours,

“ROLANDO T. VILORIA, CESO IIISESSION XIV | 30

Executive Director cum

Chairman, DOST-Technical Evaluation Committee”

Even a cursory glance at the foregoing letter shows that it is completely bereft of anything that would remotely support Comelec’s contention that the “software component of the automated election system x x x has been reprogrammed to comply with” RA 8436, and “has passed the MIRDC-DOST tests.” There is no mention at all of any software reprogramming. If the MIRDC-DOST had indeed undertaken the supposed reprogramming and the process turned out to be successful, that agency would have proudly trumpeted its singular achievement.

How Comelec came to believe that such reprogramming had been undertaken is unclear. In any event, the Commission is not forthright and candid with the factual details. If reprogramming has been done, who performed it and when? What exactly did the process involve? How can we be assured that it was properly performed? Since the facts attendant to the alleged reprogramming are still shrouded in mystery, the Court cannot give any weight to Comelec’s bare allegations.

The fact that a total of 1,973 of the machines has ultimately passed the MIRDC-DOST tests does not by itself serve as an endorsement of the soundness of the software program, much less as a proof that it has been reprogrammed. In the first place, nothing on record shows that the tests and re-tests conducted on the machines were intended to address the serious deficiencies noted earlier. As a matter of fact, the MIRDC-DOST letter does not even indicate what kinds of tests or re-tests were conducted, their exact nature and scope, and the specific objectives thereof.[53] The absence of relevant supporting documents, combined with the utter vagueness of the letter, certainly fails to inspire belief or to justify the expansive confidence displayed by Comelec. In any event, it goes without saying that remedial measures such as the alleged reprogramming cannot in any way mitigate the grave abuse of discretion already committed as early as April 15, 2003.

Rationale of Public Bidding Negated by the Third Type of Software

Respondent Comelec tries to assuage this Court’s anxiety in these words: “The reprogrammed software that has already passed the requirements of Republic Act No. 8436 during the MIRDC-DOST testing and acceptance procedures will require further customization since the following additional elements, among other things, will have to be considered before the final software can be used on election day: 1. Final Certified List of Candidates x x x 2. Project of Precincts x x x 3. Official Ballot Design and Security Features x x x 4. Encryption, digital certificates and digital signatures x x x. The certified list of candidates for national elective positions will be finalized on or before 23 January 2004 while the final list of projects of precincts will be prepared

also on the same date. Once all the above elements are incorporated in the software program, the Test Certification Group created by the Ad Hoc Technical Evaluation Committee will conduct meticulous testing of the final software before the same can be used on election day. In addition to the testing to be conducted by said Test Certification Group, the Comelec will conduct mock elections in selected areas nationwide not only for purposes of public information but also to further test the final election day program. Public respondent Comelec, therefore, requests that it be given up to 16 February 2004 to comply with this requirement.”

The foregoing passage shows the imprudent approach adopted by Comelec in the bidding and acquisition process. The Commission says that before the software can be utilized on election day, it will require “customization” through addition of data -- like the list of candidates, project of precincts, and so on. And inasmuch as such data will become available only in January 2004 anyway, there is therefore no perceived need on Comelec’s part to rush the supplier into producing the final (or near-final) version of the software before that time. In any case, Comelec argues that the software needed for the electoral exercise can be continuously developed, tested, adjusted and perfected, practically all the way up to election day, at the same time that the Commission is undertaking all the other distinct and diverse activities pertinent to the elections.

Given such a frame of mind, it is no wonder that Comelec paid little attention to the counting and canvassing software during the entire bidding process, which took place in February-March 2003. Granted that the software was defective, could not detect and prevent the re-use of previously downloaded data or produce the audit trail -- aside from its other shortcomings -- nevertheless, all those deficiencies could still be corrected down the road. At any rate, the software used for bidding purposes would not be the same one that will be used on election day, so why pay any attention to its defects? Or to the Comelec’s own bidding rules for that matter?

Clearly, such jumbled ratiocinations completely negate the rationale underlying the bidding process mandated by law.

At the very outset, the Court has explained that Comelec flagrantly violated the public policy on public biddings (1) by allowing MPC/MPEI to participate in the bidding even though it was not qualified to do so; and (2) by eventually awarding the Contract to MPC/MPEI. Now, with the latest explanation given by Comelec, it is clear that the Commission further desecrated the law on public bidding by permitting the winning bidder to change and alter the subject of the Contract (the software), in effect allowing a substantive amendment without public bidding.

This stance is contrary to settled jurisprudence requiring the strict application of pertinent rules, regulations and guidelines for public bidding for the purpose of placing each bidder, actual or potential, on the same footing. The essence of public bidding is,

SESSION XIV | 31

after all, an opportunity for fair competition, and a fair basis for the precise comparison of bids. In common parlance, public bidding aims to “level the playing field.” That means each bidder must bid under the same conditions; and be subject to the same guidelines, requirements and limitations, so that the best offer or lowest bid may be determined, all other things being equal.

Thus, it is contrary to the very concept of public bidding to permit a variance between the conditions under which bids are invited and those under which proposals are submitted and approved; or, as in this case, the conditions under which the bid is won and those under which the awarded Contract will be complied with. The substantive amendment of the contract bidded out, without any public bidding -- after the bidding process had been concluded -- is violative of the public policy on public biddings, as well as the spirit and intent of RA 8436. The whole point in going through the public bidding exercise was completely lost. The very rationale of public bidding was totally subverted by the Commission.

From another perspective, the Comelec approach also fails to make sense. Granted that, before election day, the software would still have to be customized to each precinct, municipality, city, district, and so on, there still was nothing at all to prevent Comelec from requiring prospective suppliers/bidders to produce, at the very start of the bidding process, the “next-to-final” versions of the software (the best software the suppliers had) -- pre-tested and ready to be customized to the final list of candidates and project of precincts, among others, and ready to be deployed thereafter. The satisfaction of such requirement would probably have provided far better bases for evaluation and selection, as between suppliers, than the so-called demo software.

Respondents contend that the bidding suppliers’ counting machines were previously used in at least one political exercise with no less than 20 million voters. If so, it stands to reason that the software used in that past electoral exercise would probably still be available and, in all likelihood, could have been adopted for use in this instance. Paying for machines and software of that category (already tried and proven in actual elections and ready to be adopted for use) would definitely make more sense than paying the same hundreds of millions of pesos for demo software and empty promises of usable programs in the future.

But there is still another gut-level reason why the approach taken by Comelec is reprehensible. It rides on the perilous assumption that nothing would go wrong; and that, come election day, the Commission and the supplier would have developed, adjusted and “re-programmed” the software to the point where the automated system could function as envisioned. But what if such optimistic projection does not materialize? What if, despite all their herculean efforts, the software now being hurriedly developed and tested for the automated system performs dismally and

inaccurately or, worse, is hacked and/or manipulated?[54] What then will we do with all the machines and defective software already paid for in the amount of P849 million of our tax money? Even more important, what will happen to our country in case of failure of the automation?

The Court cannot grant the plea of Comelec that it be given until February 16, 2004 to be able to submit a “certification relative to the additional elements of the software that will be customized,” because for us to do so would unnecessarily delay the resolution of this case and would just give the poll body an unwarranted excuse to postpone the 2004 elections. On the other hand, because such certification will not cure the gravely abusive actions complained of by petitioners, it will be utterly useless.

Is this Court being overly pessimistic and perhaps even engaging in speculation? Hardly. Rather, the Court holds that Comelec should not have gambled on the unrealistic optimism that the supplier’s software development efforts would turn out well. The Commission should have adopted a much more prudent and judicious approach to ensure the delivery of tried and tested software, and readied alternative courses of action in case of failure. Considering that the nation’s future is at stake here, it should have done no less.

Epilogue

Once again, the Court finds itself at the crossroads of our nation’s history. At stake in this controversy is not just the business of a computer supplier, or a questionable proclamation by Comelec of one or more public officials. Neither is it about whether this country should switch from the manual to the automated system of counting and canvassing votes. At its core is the ability and capacity of the Commission on Elections to perform properly, legally and prudently its legal mandate to implement the transition from manual to automated elections.

Unfortunately, Comelec has failed to measure up to this historic task. As stated at the start of this Decision, Comelec has not merely gravely abused its discretion in awarding the Contract for the automation of the counting and canvassing of the ballots. It has also put at grave risk the holding of credible and peaceful elections by shoddily accepting electronic hardware and software that admittedly failed to pass legally mandated technical requirements. Inadequate as they are, the remedies it proffers post facto do not cure the grave abuse of discretion it already committed (1) on April 15, 2003, when it illegally made the award; and (2) “sometime” in May 2003 when it executed the Contract for the purchase of defective machines and non-existent software from a non-eligible bidder.

For these reasons, the Court finds it totally unacceptable and unconscionable to place its imprimatur on this void and illegal transaction that seriously endangers the

SESSION XIV | 32

breakdown of our electoral system. For this Court to cop-out and to close its eyes to these illegal transactions, while convenient, would be to abandon its constitutional duty of safeguarding public interest.

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.

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-boardprocess 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.

WHEREFORE, the Petition is GRANTED. The Court hereby declares NULL and VOID Comelec Resolution No. 6074 awarding the contract for Phase II of the CAES to Mega Pacific Consortium (MPC). Also declared null and void is the subject Contract executed between Comelec and Mega Pacific eSolutions (MPEI).[55] 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.

SO ORDERED.

SESSION XIV | 33

SECOND DIVISION

GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS),

Petitioner,

- versus -

HEIRS OF FERNANDO F. CABALLERO, represented by his daughter, JOCELYN G. CABALLERO,

Respondents.

G.R. Nos. 158090

Present:

VELASCO, JR.,*

NACHURA,** J., Acting

Chairperson,

PERALTA,

MENDOZA, and

SERENO,*** JJ.

Promulgated:

October 4, 2010

x-----------------------------------------------------------------------------------------x

D E C I S I O N

PERALTA, J.:

Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to set aside the Decision [1] and the Resolution,[2] dated December 17, 2002 and April 29, 2003, respectively, of the Court of Appeals (CA) in CA-G.R. CV. No. 49300.

The antecedents are as follows:

Respondent Fernando C. Caballero (Fernando) was the registered owner of a residential lot designated as Lot No. 3355, Ts-268, covered by TCT No. T-16035 of the Register of Deeds of Cotabato, containing an area of 800 square meters and situated at Rizal Street, Mlang, Cotabato. On the said lot, respondent built a residential/commercial building consisting of two (2) stories.

On March 7, 1968, Fernando and his wife, Sylvia Caballero, secured a loan from petitioner Government Service Insurance System (GSIS) in the amount of P20,000.00, as evidenced by a promissory note. Fernando and his wife likewise executed a real estate mortgage on the same date, mortgaging the afore-stated property as security.

Fernando defaulted on the payment of his loan with the GSIS. Hence, on January 20, 1973, the mortgage covering the subject property was foreclosed, and on March 26, 1973, the same was sold at a public auction where the petitioner was the only bidder in the amount of P36,283.00. For failure of Fernando to redeem the said property within the designated period, petitioner executed an Affidavit of Consolidation of Ownership on September 5, 1975. Consequently, TCT No. T-16035 was cancelled and TCT No. T-45874 was issued in the name of petitioner.

On November 26, 1975, petitioner wrote a letter to Fernando, informing him of the consolidation of title in its favor, and requesting payment of monthly rental in view of Fernando's continued occupancy of the subject property. In reply, Fernando requested that he be allowed to repurchase the same through partial payments.

SESSION XIV | 34

Negotiation as to the repurchase by Fernando of the subject property went on for several years, but no agreement was reached between the parties.

On January 16, 1989, petitioner scheduled the subject property for public bidding. On the scheduled date of bidding, Fernando's daughter, Jocelyn Caballero, submitted a bid in the amount of P350,000.00, while Carmelita Mercantile Trading Corporation (CMTC) submitted a bid in the amount of P450,000.00. Since CMTC was the highest bidder, it was awarded the subject property. On May 16, 1989, the Board of Trustees of the GSIS issued Resolution No. 199 confirming the award of the subject property to CMTC for a total consideration of P450,000.00. Thereafter, a Deed of Absolute Sale was executed between petitioner and CMTC on July 27, 1989, transferring the subject property to CMTC. Consequently, TCT No. T-45874 in the name of GSIS was cancelled, and TCT No. T-76183 was issued in the name of CMTC.

Due to the foregoing, Fernando, represented by his daughter and attorney-in-fact, Jocelyn Caballero, filed with the Regional Trial Court (RTC) of Kabacan, Cotabato a Complaint[3] against CMTC, the GSIS and its responsible officers, and the Register of Deeds of Kidapawan, Cotabato. Fernando prayed, among others, that judgment be rendered: declaring GSIS Board of Trustees Resolution No. 199, dated May 16, 1989, null and void; declaring the Deed of Absolute Sale between petitioner and CMTC null and void ab initio; declaring TCT No. 76183 of the Register of Deeds of Kidapawan, Cotabato, likewise, null and void ab initio; declaring the bid made by Fernando in the amount ofP350,000.00 for the repurchase of his property as the winning bid; and ordering petitioner to execute the corresponding Deed of Sale of the subject property in favor of Fernando. He also prayed for payment of moral damages, exemplary damages, attorney's fees and litigation expenses.

In his complaint, Fernando alleged that there were irregularities in the conduct of the bidding. CMTC misrepresented itself to be wholly owned by Filipino citizens. It misrepresented its working capital. Its representative Carmelita Ang Hao had no prior authority from its board of directors in an appropriate board resolution to participate in the bidding. The corporation is not authorized to acquire real estate or invest its funds for purposes other than its primary purpose. Fernando further alleged that the GSIS allowed CMTC to bid despite knowledge that said corporation has no authority to do so. The GSIS also disregarded Fernando's prior right to buy back his family home and lot in violation of the laws. The Register of Deeds of Cotabato acted with abuse of power and authority when it issued the TCT in favor of CMTC without requiring the CMTC to submit its supporting papers as required by the law.

Petitioner and its officers filed their Answer with Affirmative Defenses and Counterclaim.[4] The GSIS alleged that Fernando lost his right of redemption. He was

given the chance to repurchase the property; however, he did not avail of such option compelling the GSIS to dispose of the property by public bidding as mandated by law. There is also no “prior right to buy back” that can be exercised by Fernando. Further, it averred that the articles of incorporation and other papers of CMTC were all in order. In its counterclaim, petitioner alleged that Fernando owed petitioner the sum of P130,365.81, representing back rentals, including additional interests from January 1973 to February 1987, and the additional amount of P249,800.00, excluding applicable interests, representing rentals Fernando unlawfully collected from Carmelita Ang Hao from January 1973 to February 1988.

After trial, the RTC, in its Decision[5] dated September 27, 1994, ruled in favor of petitioner and dismissed the complaint. In the same decision, the trial court granted petitioner's counterclaim and directed Fernando to pay petitioner the rentals paid by CMTC in the amount of P249,800.00. The foregoing amount was collected by Fernando from the CMTC and represents payment which was not turned over to petitioner, which was entitled to receive the rent from the date of the consolidation of its ownership over the subject property.

Fernando filed a motion for reconsideration, which was denied by the RTC in an Order dated March 27, 1995.

Aggrieved by the Decision, respondent filed a Notice of Appeal.[6] The CA, in its Decision dated December 17, 2002, affirmed the decision of the RTC with the modification that the portion of the judgment ordering Fernando to pay rentals in the amount of P249,800.00, in favor of petitioner, be deleted. Petitioner filed a motion for reconsideration, which the CA denied in a Resolution dated April 29, 2003. Hence, the instant petition.

An Ex Parte Motion for Substitution of Party,[7] dated July 18, 2003, was filed by the surviving heirs of Fernando, who died on February 12, 2002. They prayed that they be allowed to be substituted for the deceased, as respondents in this case.

Petitioner enumerated the following grounds in support of its petition:

I

THE HONORABLE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN HOLDING THAT GSIS' COUNTERCLAIM, AMONG OTHERS, OF P249,800.00 REPRESENTING RENTALS COLLECTED BY PRIVATE RESPONDENT FROM CARMELITA MERCANTILE TRADING CORPORATION IS IN THE NATURE OF A PERMISSIVE COUNTERCLAIM WHICH REQUIRED THE PAYMENT BY GSIS OF DOCKET FEES BEFORE THE TRIAL COURT CAN ACQUIRE JURISDICTION OVER SAID COUNTERCLAIM.

SESSION XIV | 35

II

THE HONORABLE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN HOLDING THAT GSIS' DOCUMENTARY EVIDENCE SUPPORTING ITS CLAIM OF P249,800.00 LACKS PROPER IDENTIFICATION.[8]

The petition of the GSIS seeks the review of the CA's Decision insofar as it deleted the trial court's award of P249,800.00 in its favor representing rentals collected by Fernando from the CMTC.

In their Memorandum, respondents’ claim that CMTC cannot purchase real estate or invest its funds in any purpose other than its primary purpose for which it was organized in the absence of a corporate board resolution; the bid award, deed of absolute sale and TCT No. T-76183, issued in favor of the CMTC, should be nullified; the trial court erred in concluding that GSIS personnel have regularly performed their official duty when they conducted the public bidding; Fernando, as former owner of the subject property and former member of the GSIS, has the preemptive right to repurchase the foreclosed property.

These additional averments cannot be taken cognizance by the Court, because they were substantially respondents’ arguments in their petition for review on certiorariearlier filed before Us and docketed as G.R. No. 156609. Records show that said petition was denied by the Court in a Resolution [9] dated April 23, 2003, for petitioners’ (respondents herein) failure to sufficiently show that the Court of Appeals committed any reversible error in the challenged decision as to warrant the exercise by this Court of its discretionary appellate jurisdiction.[10] Said resolution became final and executory on June 9, 2003.[11] Respondents’ attempt to re-litigate claims already passed upon and resolved with finality by the Court in G.R. No. 156609 cannot be allowed.

Going now to the first assigned error, petitioner submits that its counterclaim for the rentals collected by Fernando from the CMTC is in the nature of a compulsory counterclaim in the original action of Fernando against petitioner for annulment of bid award, deed of absolute sale and TCT No. 76183. Respondents, on the other hand, alleged that petitioner's counterclaim is permissive and its failure to pay the prescribed docket fees results into the dismissal of its claim.

To determine whether a counterclaim is compulsory or not, the Court has devised the following tests: (a) Are the issues of fact and law raised by the claim and by the counterclaim largely the same? (b) Would res judicata bar a subsequent suit on defendant’s claims, absent the compulsory counterclaim rule? (c) Will substantially the same evidence support or refute plaintiff’s claim as well as the defendant’s

counterclaim? and (d) Is there any logical relation between the claim and the counterclaim? A positive answer to all four questions would indicate that the counterclaim is compulsory.[12]

Tested against the above-mentioned criteria, this Court agrees with the CA's view that petitioner's counterclaim for the recovery of the amount representing rentals collected by Fernando from the CMTC is permissive. The evidence needed by Fernando to cause the annulment of the bid award, deed of absolute sale and TCT is different from that required to establish petitioner's claim for the recovery of rentals.

The issue in the main action, i.e., the nullity or validity of the bid award, deed of absolute sale and TCT in favor of CMTC, is entirely different from the issue in the counterclaim, i.e., whether petitioner is entitled to receive the CMTC's rent payments over the subject property when petitioner became the owner of the subject property by virtue of the consolidation of ownership of the property in its favor.

The rule in permissive counterclaims is that for the trial court to acquire jurisdiction, the counterclaimant is bound to pay the prescribed docket fees. [13] This, petitioner did not do, because it asserted that its claim for the collection of rental payments was a compulsory counterclaim. Since petitioner failed to pay the docket fees, the RTC did not acquire jurisdiction over its permissive counterclaim. The judgment rendered by the RTC, insofar as it ordered Fernando to pay petitioner the rentals which he collected from CMTC, is considered null and void. Any decision rendered without jurisdiction is a total nullity and may be struck down at any time, even on appeal before this Court.[14]

Petitioner further argues that assuming that its counterclaim is permissive, the trial court has jurisdiction to try and decide the same, considering petitioner's exemption from all kinds of fees.

In In Re: Petition for Recognition of the Exemption of the Government Service Insurance System from Payment of Legal Fees,[15] the Court ruled that the provision in the Charter of the GSIS, i.e., Section 39 of Republic Act No. 8291, which exempts it from “all taxes, assessments, fees, charges or duties of all kinds,” cannot operate to exempt it from the payment of legal fees. This was because, unlike the 1935 and 1973 Constitutions, which empowered Congress to repeal, alter or supplement the rules of the Supreme Court concerning pleading, practice and procedure, the 1987 Constitution removed this power from Congress. Hence, the Supreme Court now has the sole authority to promulgate rules concerning pleading, practice and procedure in all courts.

In said case, the Court ruled that:

The separation of powers among the three co-equal branches of our government has erected an impregnable wall that keeps the power to promulgate rules of pleading,

SESSION XIV | 36

practice and procedure within the sole province of this Court. The other branches trespass upon this prerogative if they enact laws or issue orders that effectively repeal, alter or modify any of the procedural rules promulgated by this Court. Viewed from this perspective, the claim of a legislative grant of exemption from the payment of legal fees under Section 39 of RA 8291 necessarily fails.

Congress could not have carved out an exemption for the GSIS from the payment of legal fees without transgressing another equally important institutional safeguard of the Court's independence − fiscal autonomy. Fiscal autonomy recognizes the power and authority of the Court to levy, assess and collect fees, including legal fees. Moreover, legal fees under Rule 141 have two basic components, the Judiciary Development Fund (JDF) and the Special Allowance for the Judiciary Fund (SAJF). The laws which established the JDF and the SAJF expressly declare the identical purpose of these funds to "guarantee the independence of the Judiciary as mandated by the Constitution and public policy." Legal fees therefore do not only constitute a vital source of the Court's financial resources but also comprise an essential element of the Court's fiscal independence. Any exemption from the payment of legal fees granted by Congress to government-owned or controlled corporations and local government units will necessarily reduce the JDF and the SAJF. Undoubtedly, such situation is constitutionally infirm for it impairs the Court's guaranteed fiscal autonomy and erodes its independence.

Petitioner also invoked our ruling in Sun Insurance Office, Ltd. v. Judge Asuncion,[16] where the Court held that:

x x x x

3. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate pleading and payment of the prescribed filing fee but, subsequently, the judgment awards a claim not specified in the pleading, or if specified the same has been left for determination by the court, the additional filing fee therefor shall constitute a lien on the judgment. It shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and assess and collect the additional fee.

In Ayala Corporation v. Madayag,[17] the Court, in interpreting the third rule laid down in Sun Insurance Office, Ltd. v. Judge Asuncion regarding awards of claims not specified in the pleading, held that the same refers only to damages arising after the filing of the complaint or similar pleading as to which the additional filing fee therefor shall constitute a lien on the judgment.

The amount of any claim for damages, therefore, arising on or before the filing of the complaint or any pleading should be specified. While it is true

that the determination of certain damages as exemplary or corrective damages is left to the sound discretion of the court, it is the duty of the parties claiming such damages to specify the amount sought on the basis of which the court may make a proper determination, and for the proper assessment of the appropriate docket fees. The exception contemplated as to claims not specified or to claims although specified are left for determination of the court is limited only to any damages that may arise after the filing of the complaint or similar pleading for then it will not be possible for the claimant to specify nor speculate as to the amount thereof. (Emphasis supplied.)

Petitioner's claim for payment of rentals collected by Fernando from the CMTC did not arise after the filing of the complaint; hence, the rule laid down in Sun Insurancefinds no application in the present case.

Due to the non-payment of docket fees on petitioner's counterclaim, the trial court never acquired jurisdiction over it and, thus, there is no need to discuss the second issue raised by petitioner.

WHEREFORE, the petition is DENIED. The Decision and the Resolution, dated December 17, 2002 and April 29, 2003, respectively, of the Court of Appeals in CA-G.R. CV. No. 49300, are AFFIRMED.

SO ORDERED.

SESSION XIV | 37

EN BANC

G.R. No. L-5279 October 31, 1955

PHILIPPINE ASSOCIATION OF COLLEGES AND UNIVERSITIES, ETC., petitioner, vs.SECRETARY OF EDUCATION and the BOARD OF TEXTBOOKS, respondents.

BENGZON, J.:

The petitioning colleges and universities request that Act No. 2706 as amended by Act No. 3075 and Commonwealth Act No. 180 be declared unconstitutional, because: A. They deprive owners of schools and colleges as well as teachers and parents of liberty and property without due process of law; B. They deprive parents of their natural rights and duty to rear their children for civic efficiency; and C. Their provisions conferring on the Secretary of Education unlimited power and discretion to prescribe rules and standards constitute an unlawful delegation of legislative power.

A printed memorandum explaining their position in extenso is attached to the record.

The Government's legal representative submitted a mimeographed memorandum contending that, (1) the matter constitutes no justiciable controversy exhibiting unavoidable necessity of deciding the constitutional questions; (2) petitioners are in estoppel to challenge the validity of the said acts; and (3) the Acts are constitutionally valid.

Petitioners submitted a lengthy reply to the above arguments.

Act No. 2706 approved in 1917 is entitled, "An Act making the inspection and recognition of private schools and colleges obligatory for the Secretary of Public Instruction." Under its provisions, the Department of Education has, for the past 37 years, supervised and regulated all private schools in this country apparently without audible protest, nay, with the general acquiescence of the general public and the parties concerned.

It should be understandable, then, that this Court should be doubly reluctant to consider petitioner's demand for avoidance of the law aforesaid, specially where, as respondents assert, petitioners suffered no wrong—nor allege any—from the enforcement of the criticized statute.

It must be evident to any one that the power to declare a legislative enactment void is one which the judge, conscious of the fallability of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility. (Cooley Constitutional Limitations, 8th Ed., Vol. I, p. 332.)

When a law has been long treated as constitutional and important rights have become dependent thereon, the Court may refuse to consider an attack on its validity. (C. J. S. 16, p. 204.)

As a general rule, the constitutionality of a statute will be passed on only if, and to the extent that, it is directly and necessarily involved in a justiciable controversy and is essential to the protection of the rights of the parties concerned. (16 C. J. S., p. 207.)

In support of their first proposition petitioners contend that the right of a citizen to own and operate a school is guaranteed by the Constitution, and any law requiring previous governmental approval or permit before such person could exercise said right, amounts to censorship of previous restraint, a practice abhorent to our system of law and government. Petitioners obviously refer to section 3 of Act No. 2706 as amended which provides that before a private school may be opened to the public it must first obtain a permit from the Secretary of Education. The Solicitor General on the other hand points out that none of the petitioners has cause to present this issue, because all of them have permits to operate and are actually operating by virtue of their permits.1 And they do not assert that the respondent Secretary of Education has threatened to revoke their permits. They have suffered no wrong under the terms of law—and, naturally need no relief in the form they now seek to obtain.

It is an established principle that to entitle a private individual immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general to invoke the judicial power to determine the validity of executive or

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legislative action he must show that he has sustained or is interest common to all members of the public. (Ex parte Levitt, 302 U. S. 633 82 L. Ed. 493.)

Courts will not pass upon the constitutionality of a law upon the complaint of one who fails to show that he is injured by its operation. (Tyler vs. Judges, 179 U. S. 405; Hendrick vs. Maryland, 235 U. S. 610; Coffman vs.Breeze Corp., 323 U. S. 316-325.)

The power of courts to declare a law unconstitutional arises only when the interests of litigant require the use of that judicial authority for their protection against actual interference, a hypothetical threat being insufficient. (United Public Works vs. Mitchell, 330 U .S. 75; 91 L. Ed. 754.)

Bona fide suit.—Judicial power is limited to the decision of actual cases and controversies. The authority to pass on the validity of statutes is incidental to the decision of such cases where conflicting claims under the Constitution and under a legislative act assailed as contrary to the Constitution are raised. It is legitimate only in the last resort, and as necessity in the determination of real, earnest, and vital controversy between litigants. (Tañada and Fernando, Constitution of the Philippines, p. 1138.)

Mere apprehension that the Secretary of Education might under the law withdraw the permit of one of petitioners does not constitute a justiciable controversy. (Cf. Com. ex rel Watkins vs. Winchester Waterworks (Ky.) 197 S. W. 2d. 771.)

And action, like this, is brought for a positive purpose, nay, to obtain actual and positive relief. (Salonga vs. Warner Barnes, L-2245, January, 1951.) Courts do not sit to adjudicate mere academic questions to satisfy scholarly interest therein, however intellectually solid the problem may be. This is specially true where the issues "reach constitutional dimensions, for then there comes into play regard for the court's duty to avoid decision of constitutional issues unless avoidance becomes evasion." (Rice vs. Sioux City, U. S. Sup. Ct. Adv. Rep., May 23, 1995, Law Ed., Vol. 99, p. 511.)

The above notwithstanding, in view of the several decisions of the United States Supreme Court quoted by petitioners, apparently outlawing censorship of the kind objected to by them, we have decided to look into the matter, lest they may allege we refuse to act even in the face of clear violation of fundamental personal rights of liberty and property.

Petitioners complain that before opening a school the owner must secure a permit from the Secretary of Education. Such requirement was not originally included in Act No. 2706. It was introduced by Commonwealth Act No. 180 approved in 1936. Why?

In March 1924 the Philippine Legislature approved Act No. 3162 creating a Board of Educational Survey to make a study and survey of education in the Philippines and of

all educational institutions, facilities and agencies thereof. A Board chairmaned by Dr. Paul Munroe, Columbia University, assisted by a staff of carefully selected technical members performed the task, made a five-month thorough and impartial examination of the local educational system, and submitted a report with recommendations, printed as a book of 671 pages. The following paragraphs are taken from such report:

PRIVATE-ADVENTURE SCHOOLS

There is no law or regulation in the Philippine Islands today to prevent a person, however disqualified by ignorance, greed, or even immoral character, from opening a school to teach the young. It it true that in order to post over the door "Recognized by the Government," a private adventure school must first be inspected by the proper Government official, but a refusal to grant such recognition does not by any means result in such a school ceasing to exist. As a matter of fact, there are more such unrecognized private schools than of the recognized variety. How many, no one knows, as the Division of Private Schools keeps records only of the recognized type.

Conclusion.—An unprejudiced consideration of the fact presented under the caption Private Adventure Schools leads but to one conclusion, viz.: the great majority of them from primary grade to university are money-making devices for the profit of those who organize and administer them. The people whose children and youth attend them are not getting what they pay for. It is obvious that the system constitutes a great evil. That it should be permitted to exist with almost no supervision is indefensible. The suggestion has been made with the reference to the private institutions of university grade that some board of control be organized under legislative control to supervise their administration. The Commission believes that the recommendations it offers at the end of this chapter are more likely to bring about the needed reforms.

Recommendations.—The Commission recommends that legislation be enacted to prohibit the opening of any school by an individual or organization without the permission of the Secretary of Public Instruction. That before granting such permission the Secretary assure himself that such school measures up to proper standards in the following respects, and that the continued existence of the school be dependent upon its continuing to conform to these conditions:

(1) The location and construction of the buildings, the lighting and ventilation of the rooms, the nature of the lavatories, closets, water supply, school furniture and apparatus, and methods of cleaning shall be such as to insure hygienic conditions for both pupils and teachers.

(2) The library and laboratory facilities shall be adequate to the needs of instruction in the subjects taught.

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(3) The classes shall not show an excessive number of pupils per teacher. The Commission recommends 40 as a maximum.

(4) The teachers shall meet qualifications equal to those of teachers in the public schools of the same grade.

xxx xxx xxx

In view of these findings and recommendations, can there be any doubt that the Government in the exercise of its police power to correct "a great evil" could validly establish the "previous permit" system objected to by petitioners? This is what differentiates our law from the other statutes declared invalid in other jurisdictions. And if any doubt still exists, recourse may now be had to the provision of our Constitution that "All educational institutions shall be under the supervision and subject to regulation by the State." (Art. XIV, sec. 5.) The power to regulate establishments or business occupations implies the power to require a permit or license. (53 C. J. S. 4.)

What goes for the "previous permit" naturally goes for the power to revoke such permit on account of violation of rules or regulations of the Department.

II. This brings us to the petitioners' third proposition that the questioned statutes "conferring on the Secretary of Education unlimited power and discretion to prescribe rules and standards constitute an unlawful delegation of legislative power."

This attack is specifically aimed at section 1 of Act No. 2706 which, as amended, provides:

It shall be the duty of the Secretary of Public Instruction to maintain a general standard of efficiency in all private schools and colleges of the Philippines so that the same shall furnish adequate instruction to the public, in accordance with the class and grade of instruction given in them, and for this purpose said Secretary or his duly authorized representative shall have authority to advise, inspect, and regulate said schools and colleges in order to determine the efficiency of instruction given in the same,

"Nowhere in this Act" petitioners argue "can one find any description, either general or specific, of what constitutes a 'general standard of efficiency.' Nowhere in this Act is there any indication of any basis or condition to ascertain what is 'adequate instruction to the public.' Nowhere in this Act is there any statement of conditions, acts, or factors, which the Secretary of Education must take into account to determine the 'efficiency of instruction.'"

The attack on this score is also extended to section 6 which provides:

The Department of Education shall from time to time prepare and publish in pamphlet form the minimum standards required of primary, intermediate, and high schools, and

colleges granting the degrees of Bachelor of Arts, Bachelor of Science, or any other academic degree. It shall also from time to time prepare and publish in pamphlet form the minimum standards required of law, medical, dental, pharmaceutical, engineering, agricultural and other medical or vocational schools or colleges giving instruction of a technical, vocational or professional character.

Petitioners reason out, "this section leaves everything to the uncontrolled discretion of the Secretary of Education or his department. The Secretary of Education is given the power to fix the standard. In plain language, the statute turns over to the Secretary of Education the exclusive authority of the legislature to formulate standard. . . .."

It is quite clear the two sections empower and require the Secretary of Education to prescribe rules fixing minimum standards of adequate and efficient instruction to be observed by all such private schools and colleges as may be permitted to operate. The petitioners contend that as the legislature has not fixed the standards, "the provision is extremely vague, indefinite and uncertain"—and for that reason constitutionality objectionable. The best answer is that despite such alleged vagueness the Secretary of Education has fixed standards to ensure adequate and efficient instruction, as shown by the memoranda fixing or revising curricula, the school calendars, entrance and final examinations, admission and accreditation of students etc.; and the system of private education has, in general, been satisfactorily in operation for 37 years. Which only shows that the Legislature did and could, validly rely upon the educational experience and training of those in charge of the Department of Education to ascertain and formulate minimum requirements of adequate instruction as the basis of government recognition of any private school.

At any rate, petitioners do not show how these standards have injured any of them or interfered with their operation. Wherefore, no reason exists for them to assail the validity of the power nor the exercise of the power by the Secretary of Education.

True, the petitioners assert that, the Secretary has issued rules and regulations "whimsical and capricious" and that such discretionary power has produced arrogant inspectors who "bully heads and teachers of private schools." Nevertheless, their remedy is to challenge those regulations specifically, and/or to ring those inspectors to book, in proper administrative or judicial proceedings—not to invalidate the law. For it needs no argument, to show that abuse by the officials entrusted with the execution of a statute does not per se demonstrate the unconstitutionality of such statute.

Anyway, we find the defendants' position to be sufficiently sustained by the decision in Alegra vs. Collector of Customs, 53 Phil., 394 upon holding the statute that authorized the Director of Agriculture to "designate standards for the commercial grades of abaca, maguey and sisal" against vigorous attacks on the ground of invalid delegation of legislative power.

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Indeed "adequate and efficient instruction" should be considered sufficient, in the same way as "public welfare" "necessary in the interest of law and order" "public interest" and "justice and equity and substantial merits of the case" have been held sufficient as legislative standards justifying delegation of authority to regulate. (See Tañada and Fernando, Constitution of the Philippines, p. 793, citing Philippine cases.)

On this phase of the litigation we conclude that there has been no undue delegation of legislative power.

In this connection, and to support their position that the law and the Secretary of Education have transcended the governmental power of supervision and regulation, the petitioners appended a list of circulars and memoranda issued by the said Department. However they failed to indicate which of such official documents was constitutionally objectionable for being "capricious," or pain "nuisance"; and it is one of our decisional practices that unless a constitutional point is specifically raised, insisted upon and adequately argued, the court will not consider it. (Santiago vs. Far Eastern, 73 Phil., 408.)

We are told that such list will give an idea of how the statute has placed in the hands of the Secretary of Education complete control of the various activities of private schools, and why the statute should be struck down as unconstitutional. It is clear in our opinion that the statute does not in express terms give the Secretary completecontrol. It gives him powers to inspect private schools, to regulate their activities, to give them official permits to operate under certain conditions, and to revoke such permits for cause. This does not amount to complete control. If any of such Department circulars or memoranda issued by the Secretary go beyond the bounds of regulation and seeks to establish complete control, it would surely be invalid. Conceivably some of them are of this nature, but besides not having before us the text of such circulars, the petitioners have omitted to specify. In any event with the recent approval of Republic Act No. 1124 creating the National Board of Education, opportunity for administrative correction of the supposed anomalies or encroachments is amply afforded herein petitioners. A more expeditious and perhaps more technically competent forum exists, wherein to discuss the necessity, convenience or relevancy of the measures criticized by them. (See also Republic Act No. 176.)

If however the statutes in question actually give the Secretary control over private schools, the question arises whether the power of supervision and regulation granted to the State by section 5 Article XIV was meant to include control of private educational institutions. It is enough to point out that local educators and writers think the Constitution provides for control of Education by the State. (See Tolentino, Government of the Philippine Constitution, Vol. II, p. 615; Benitez, Philippine Social Life and Progress, p. 335.)

The Constitution (it) "provides for state control of all educational institutions" even as it enumerates certain fundamental objectives of all education to wit, the development of moral character, personal discipline, civic conscience and vocational efficiency, and instruction in the duties of citizenship. (Malcolm & Laurel, Philippine Constitutional Law, 1936.)

The Solicitor General cities many authorities to show that the power to regulate means power to control, and quotes from the proceedings of the Constitutional Convention to prove that State control of private education was intended by the organic law. It is significant to note that the Constitution grants power to supervise and to regulate. Which may mean greater power than mere regulation.

III. Another grievance of petitioners—probably the most significant—is the assessment of 1 per cent levied on gross receipts of all private schools for additional Government expenses in connection with their supervision and regulation. The statute is section 11-A of Act No. 2706 as amended by Republic Act No. 74 which reads as follows:

SEC. 11-A. The total annual expense of the Office of Private Education shall be met by the regular amount appropriated in the annual Appropriation Act: Provided, however, That for additional expenses in the supervision and regulation of private schools, colleges and universities and in the purchase of textbook to be sold to student of said schools, colleges and universities and President of the Philippines may authorize the Secretary of Instruction to levy an equitable assessment from each private educational institution equivalent to one percent of the total amount accruing from tuition and other fees: . . . and non-payment of the assessment herein provided by any private school, college or university shall be sufficient cause for the cancellation by the Secretary of Instruction of the permit for recognition granted to it.

Petitioners maintain that this is a tax on the exercise of a constitutional right—the right to open a school, the liberty to teach etc. They claim this is unconstitutional, in the same way that taxes on the privilege of selling religious literature or of publishing a newspaper—both constitutional privileges—have been held, in the United States, to be invalid as taxes on the exercise of a constitutional right.

The Solicitor General on the other hand argues that insofar as petitioners' action attempts to restrain the further collection of the assessment, courts have no jurisdiction to restrain the collection of taxes by injunction, and in so far as they seek to recover fees already paid the suit, it is one against the State without its consent. Anyway he concludes, the action involving "the legality of any tax impost or assessment" falls within the original jurisdiction of Courts of First Instance.

There are good grounds in support of Government's position. If this levy of 1 per cent is truly a mere fee—and not a tax—to finance the cost of the Department's duty and

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power to regulate and supervise private schools, the exaction may be upheld; but such point involves investigation and examination of relevant data, which should best be carried out in the lower courts. If on the other hand it is a tax, petitioners' issue would still be within the original jurisdiction of the Courts of First Instance.

The last grievance of petitioners relates to the validity of Republic Act No. 139 which in its section 1 provides:

The textbooks to be used in the private schools recognized or authorized by the government shall be submitted to the Board (Board of Textbooks) which shall have the power to prohibit the use of any of said textbooks which it may find to be against the law or to offend the dignity and honor of the government and people of the Philippines, or which it may find to be against the general policies of the government, or which it may deem pedagogically unsuitable.

This power of the Board, petitioners aver, is censorship in "its baldest form". They cite two U. S. cases (Miss. and Minnesota) outlawing statutes that impose previous restraints upon publication of newspapers, or curtail the right of individuals to disseminate teachings critical of government institutions or policies.

Herein lies another important issue submitted in the cause. The question is really whether the law may be enacted in the exercise of the State's constitutional power (Art. XIV, sec. 5) to supervise and regulate private schools. If that power amounts to control of private schools, as some think it is, maybe the law is valid. In this connection we do not share the belief that section 5 has added new power to what the State inherently possesses by virtue of the police power. An express power is necessarily more extensive than a mere implied power. For instance, if there is conflict between an express individual right and the express power to control private education it cannot off-hand be said that the latter must yield to the former—conflict of two express powers. But if the power to control education ismerely implied from the police power, it is feasible to uphold the express individual right, as was probably the situation in the two decisions brought to our attention, of Mississippi and Minnesota, states where constitutional control of private schools is not expressly produced.

However, as herein previously noted, no justiciable controversy has been presented to us. We are not informed that the Board on Textbooks has prohibited this or that text, or that the petitioners refused or intend to refuse to submit some textbooks, and are in danger of losing substantial privileges or rights for so refusing.

The average lawyer who reads the above quoted section of Republic Act 139 will fail to perceive anything objectionable. Why should not the State prohibit the use of textbooks that are illegal, or offensive to the Filipinos or adverse to governmental policies or educationally improper? What's the power of regulation and supervision

for? But those trained to the investigation of constitutional issues are likely to apprehend the danger to civil liberties, of possible educational dictatorship or thought control, as petitioners' counsel foresee with obvious alarm. Much depends, however, upon the execution and implementation of the statute. Not that constitutionality depends necessarily upon the law's effects. But if the Board on Textbooks in its actuations strictly adheres to the letter of the section and wisely steers a middle course between the Scylla of "dictatorship" and the Charybdis of "thought control", no cause for complaint will arise and no occasion for judicial review will develop. Anyway, and again, petitioners now have a more expeditious remedy thru an administrative appeal to the National Board of Education created by Republic Act 1124.

Of course it is necessary to assure herein petitioners, that when and if, the dangers they apprehend materialize and judicial intervention is suitably invoked, after all administrative remedies are exhausted, the courts will not shrink from their duty to delimit constitutional boundaries and protect individual liberties.

IV. For all the foregoing considerations, reserving to the petitioners the right to institute in the proper court, and at the proper time, such actions as may call for decision of the issue herein presented by them, this petition for prohibition will be denied. So ordered.

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EN BANC

G.R. No. 202242 April 16, 2013

FRANCISCO I. CHAVEZ, Petitioner, vs.JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C. TUPAS, JR.,Respondents.

R E S O L U T I O N

MENDOZA, J.:

This resolves the Motion for Reconsideration1 filed by the Office of the Solicitor General (OSG) on behalf of the respondents, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas, Jr. (respondents), duly opposed2 by the petitioner, former Solicitor General Francisco I. Chavez (petitioner).

By way of recapitulation, the present action stemmed from the unexpected departure of former Chief Justice Renato C. Corona on May 29, 2012, and the nomination of petitioner, as his potential successor. In his initiatory pleading, petitioner asked the Court to determine 1] whether the first paragraph of Section 8, Article VIII of the 1987 Constitution allows more than one (1) member of Congress to sit in the JBC; and 2] if the practice of having two (2) representatives from each House of Congress with one (1) vote each is sanctioned by the Constitution.

On July 17, 2012, the Court handed down the assailed subject decision, disposing the same in the following manner:

WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar Council is declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to reconstitute itself so that only one (1) member of Congress will sit as a representative in its proceedings, in accordance with Section 8(1), Article VIII of the 1987 Constitution.

This disposition is immediately executory.

SO ORDERED.

On July 31, 2012, following respondents’ motion for reconsideration and with due regard to Senate Resolution Nos. 111,3 112,4 113,5 and 114,6 the Court set the subject motion for oral arguments on August 2, 2012.7 On August 3, 2012, the Court discussed the merits of the arguments and agreed, in the meantime, to suspend the effects of the second paragraph of the dispositive portion of the July 17, 2012 Decision which decreed that it was immediately executory. The decretal portion of the August 3, 2012 Resolution8 reads:

WHEREFORE, the parties are hereby directed to submit their respective MEMORANDA within ten (10) days from notice. Until further orders, the Court hereby SUSPENDS the effect of the second paragraph of the dispositive portion of the Court’s July 17, 2012 Decision, which reads: "This disposition is immediately executory."9

Pursuant to the same resolution, petitioner and respondents filed their respective memoranda.10

Brief Statement of the Antecedents

In this disposition, it bears reiterating that from the birth of the Philippine Republic, the exercise of appointing members of the Judiciary has always been the exclusive prerogative of the executive and legislative branches of the government. Like their progenitor of American origins, both the Malolos Constitution11 and the 1935 Constitution12vested the power to appoint the members of the Judiciary in the President, subject to confirmation by the Commission on Appointments. It was during these times that the country became witness to the deplorable practice of aspirants seeking confirmation of their appointment in the Judiciary to ingratiate themselves with the members of the legislative body.13

Then, under the 1973 Constitution,14 with the fusion of the executive and legislative powers in one body, the appointment of judges and justices ceased to be subject of scrutiny by another body. The power became exclusive and absolute to the Executive,

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http://www.lawphil.net/judjuris/juri2013/apr2013/gr_202242_2013.html#fnt14














subject only to the condition that the appointees must have all the qualifications and none of the disqualifications.

Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of political pressure and partisan activities,15 the members of the Constitutional Commission saw it wise to create a separate, competent and independent body to recommend nominees to the President.

Thus, it conceived of a body, representative of all the stakeholders in the judicial appointment process, and called it the Judicial and Bar Council (JBC). The Framers carefully worded Section 8, Article VIII of the 1987 Constitution in this wise:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.

From the moment of the creation of the JBC, Congress designated one (1) representative to sit in the JBC to act as one of the ex-officio members.16 Pursuant to the constitutional provision that Congress is entitled to one (1) representative, each House sent a representative to the JBC, not together, but alternately or by rotation.

In 1994, the seven-member composition of the JBC was substantially altered.1âwphi1 An eighth member was added to the JBC as the two (2) representatives from Congress began sitting simultaneously in the JBC, with each having one-half (1/2) of a vote.17

In 2001, the JBC En Banc decided to allow the representatives from the Senate and the House of Representatives one full vote each.18 It has been the situation since then.

Grounds relied upon by Respondents

Through the subject motion, respondents pray that the Court reconsider its decision and dismiss the petition on the following grounds: 1] that allowing only one representative from Congress in the JBC would lead to absurdity considering its bicameral nature; 2] that the failure of the Framers to make the proper adjustment when there was a shift from unilateralism to bicameralism was a plain oversight; 3] that two representatives from Congress would not subvert the intention of the Framers to insulate the JBC from political partisanship; and 4] that the rationale of the Court in declaring a seven-member composition would provide a solution should there be a stalemate is not exactly correct.

While the Court may find some sense in the reasoning in amplification of the third and fourth grounds listed by respondents, still, it finds itself unable to reverse the assailed

decision on the principal issues covered by the first and second grounds for lack of merit. Significantly, the conclusion arrived at, with respect to the first and second grounds, carries greater bearing in the final resolution of this case.

As these two issues are interrelated, the Court shall discuss them jointly.

Ruling of the Court

The Constitution evinces the direct action of the Filipino people by which the fundamental powers of government are established, limited and defined and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic.19 The Framers reposed their wisdom and vision on one suprema lex to be the ultimate expression of the principles and the framework upon which government and society were to operate. Thus, in the interpretation of the constitutional provisions, the Court firmly relies on the basic postulate that the Framers mean what they say. The language used in the Constitution must be taken to have been deliberately chosen for a definite purpose. Every word employed in the Constitution must be interpreted to exude its deliberate intent which must be maintained inviolate against disobedience and defiance. What the Constitution clearly says, according to its text, compels acceptance and bars modification even by the branch tasked to interpret it.

For this reason, the Court cannot accede to the argument of plain oversight in order to justify constitutional construction. As stated in the July 17, 2012 Decision, in opting to use the singular letter "a" to describe "representative of Congress," the Filipino people through the Framers intended that Congress be entitled to only one (1) seat in the JBC. Had the intention been otherwise, the Constitution could have, in no uncertain terms, so provided, as can be read in its other provisions.

A reading of the 1987 Constitution would reveal that several provisions were indeed adjusted as to be in tune with the shift to bicameralism. One example is Section 4, Article VII, which provides that a tie in the presidential election shall be broken "by a majority of all the Members of both Houses of the Congress, voting separately."20 Another is Section 8 thereof which requires the nominee to replace the Vice-President to be confirmed "by a majority of all the Members of both Houses of the Congress, voting separately."21 Similarly, under Section 18, the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus may be revoked or continued by the Congress, voting separately, by a vote of at least a majority of all its Members."22 In all these provisions, the bicameral nature of Congress was recognized and, clearly, the corresponding adjustments were made as to how a matter would be handled and voted upon by its two Houses.

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Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer inadvertence, to their decision to shift to a bicameral form of the legislature, is not persuasive enough. Respondents cannot just lean on plain oversight to justify a conclusion favorable to them. It is very clear that the Framers were not keen on adjusting the provision on congressional representation in the JBC because it was not in the exercise of its primary function – to legislate. JBC was created to support the executive power to appoint, and Congress, as one whole body, was merely assigned a contributory non-legislative function.

The underlying reason for such a limited participation can easily be discerned. Congress has two (2) Houses. The need to recognize the existence and the role of each House is essential considering that the Constitution employs precise language in laying down the functions which particular House plays, regardless of whether the two Houses consummate an official act by voting jointly or separately. Whether in the exercise of its legislative23 or its non-legislative functions such as inter alia, the power of appropriation,24 the declaration of an existence of a state of war,25 canvassing of electoral returns for the President and Vice-President,26 and impeachment,27 the dichotomy of each House must be acknowledged and recognized considering the interplay between these two Houses. In all these instances, each House is constitutionally granted with powers and functions peculiar to its nature and with keen consideration to 1) its relationship with the other chamber; and 2) in consonance with the principle of checks and balances, as to the other branches of government.

In checkered contrast, there is essentially no interaction between the two Houses in their participation in the JBC. No mechanism is required between the Senate and the House of Representatives in the screening and nomination of judicial officers. Rather, in the creation of the JBC, the Framers arrived at a unique system by adding to the four (4) regular members, three (3) representatives from the major branches of government - the Chief Justice as ex-officio Chairman (representing the Judicial Department), the Secretary of Justice (representing the Executive Department), and a representative of the Congress (representing the Legislative Department). The total is seven (7), not eight. In so providing, the Framers simply gave recognition to the Legislature, not because it was in the interest of a certain constituency, but in reverence to it as a major branch of government.

On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the Second District of Maguindanao, submitted his well-considered position28 to then Chief Justice Reynato S. Puno:

I humbly reiterate my position that there should be only one representative of Congress in the JBC in accordance with Article VIII, Section 8 (1) of the 1987 Constitution x x x.

The aforesaid provision is clear and unambiguous and does not need any further interpretation. Perhaps, it is apt to mention that the oft-repeated doctrine that "construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them."

Further, to allow Congress to have two representatives in the Council, with one vote each, is to negate the principle of equality among the three branches of government which is enshrined in the Constitution.

In view of the foregoing, I vote for the proposition that the Council should adopt the rule of single representation of Congress in the JBC in order to respect and give the right meaning to the above-quoted provision of the Constitution. (Emphases and underscoring supplied)

On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC Consultant, submitted to the Chief Justice and ex-officio JBC Chairman his opinion,29 which reads:

8. Two things can be gleaned from the excerpts and citations above: the creation of the JBC is intended to curtail the influence of politics in Congress in the appointment of judges, and the understanding is that seven (7) persons will compose the JBC. As such, the interpretation of two votes for Congress runs counter to the intendment of the framers. Such interpretation actually gives Congress more influence in the appointment of judges. Also, two votes for Congress would increase the number of JBC members to eight, which could lead to voting deadlock by reason of even-numbered membership, and a clear violation of 7 enumerated members in the Constitution. (Emphases and underscoring supplied)

In an undated position paper,30 then Secretary of Justice Agnes VST Devanadera opined:

As can be gleaned from the above constitutional provision, the JBC is composed of seven (7) representatives coming from different sectors. From the enumeration it is patent that each category of members pertained to a single individual only. Thus, while we do not lose sight of the bicameral nature of our legislative department, it is beyond dispute that Art. VIII, Section 8 (1) of the 1987 Constitution is explicit and specific that "Congress" shall have only "xxx a representative." Thus, two (2) representatives from Congress would increase the number of JBC members to eight (8), a number beyond what the Constitution has contemplated. (Emphases and underscoring supplied)

In this regard, the scholarly dissection on the matter by retired Justice Consuelo Ynares-Santiago, a former JBC consultant, is worth reiterating.31 Thus:

A perusal of the records of the Constitutional Commission reveals that the composition of the JBC reflects the Commission’s desire "to have in the Council a representation

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for the major elements of the community." xxx The ex-officio members of the Council consist of representatives from the three main branches of government while the regular members are composed of various stakeholders in the judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-officio member as representing one co-equal branch of government. xxx Thus, the JBC was designed to have seven voting members with the three ex-officio members having equal say in the choice of judicial nominees.

x x x

No parallelism can be drawn between the representative of Congress in the JBC and the exercise by Congress of its legislative powers under Article VI and constituent powers under Article XVII of the Constitution. Congress, in relation to the executive and judicial branches of government, is constitutionally treated as another co-equal branch in the matter of its representative in the JBC. On the other hand, the exercise of legislative and constituent powers requires the Senate and the House of Representatives to coordinate and act as distinct bodies in furtherance of Congress’ role under our constitutional scheme. While the latter justifies and, in fact, necessitates the separateness of the two Houses of Congress as they relate inter se, no such dichotomy need be made when Congress interacts with the other two co-equal branches of government.

It is more in keeping with the co-equal nature of the three governmental branches to assign the same weight to considerations that any of its representatives may have regarding aspiring nominees to the judiciary. The representatives of the Senate and the House of Representatives act as such for one branch and should not have any more quantitative influence as the other branches in the exercise of prerogatives evenly bestowed upon the three. Sound reason and principle of equality among the three branches support this conclusion. [Emphases and underscoring supplied]

The argument that a senator cannot represent a member of the House of Representatives in the JBC and vice-versa is, thus, misplaced. In the JBC, any member of Congress, whether from the Senate or the House of Representatives, is constitutionally empowered to represent the entire Congress. It may be a constricted constitutional authority, but it is not an absurdity.

From this score stems the conclusion that the lone representative of Congress is entitled to one full vote. This pronouncement effectively disallows the scheme of splitting the said vote into half (1/2), between two representatives of Congress. Not only can this unsanctioned practice cause disorder in the voting process, it is clearly against the essence of what the Constitution authorized. After all, basic and reasonable is the rule that what cannot be legally done directly cannot be done indirectly. To permit or tolerate the splitting of one vote into two or more is clearly a constitutional

circumvention that cannot be countenanced by the Court. Succinctly put, when the Constitution envisioned one member of Congress sitting in the JBC, it is sensible to presume that this representation carries with him one full vote.

It is also an error for respondents to argue that the President, in effect, has more influence over the JBC simply because all of the regular members of the JBC are his appointees. The principle of checks and balances is still safeguarded because the appointment of all the regular members of the JBC is subject to a stringent process of confirmation by the Commission on Appointments, which is composed of members of Congress.

Respondents’ contention that the current irregular composition of the JBC should be accepted, simply because it was only questioned for the first time through the present action, deserves scant consideration. Well-settled is the rule that acts done in violation of the Constitution no matter how frequent, usual or notorious cannot develop or gain acceptance under the doctrine of estoppel or laches, because once an act is considered as an infringement of the Constitution it is void from the very beginning and cannot be the source of any power or authority.

It would not be amiss to point out, however, that as a general rule, an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is inoperative as if it has not been passed at all. This rule, however, is not absolute. Under the doctrine of operative facts, actions previous to the declaration of unconstitutionality are legally recognized. They are not nullified. This is essential in the interest of fair play. To reiterate the doctrine enunciated in Planters Products, Inc. v. Fertiphil Corporation:32

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating it.33

Under the circumstances, the Court finds the exception applicable in this case and holds that notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its prior official actions are nonetheless valid.

Considering that the Court is duty bound to protect the Constitution which was ratified by the direct action of the Filipino people, it cannot correct what respondents perceive

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as a mistake in its mandate. Neither can the Court, in the exercise of its power to interpret the spirit of the Constitution, read into the law something that is contrary to its express provisions and justify the same as correcting a perceived inadvertence. To do so would otherwise sanction the Court action of making amendment to the Constitution through a judicial pronouncement.

In other words, the Court cannot supply the legislative omission. According to the rule of casus omissus "a case omitted is to be held as intentionally omitted."34 "The principle proceeds from a reasonable certainty that a particular person, object or thing has been omitted from a legislative enumeration."35 Pursuant to this, "the Court cannot under its power of interpretation supply the omission even though the omission may have resulted from inadvertence or because the case in question was not foreseen or contemplated."36 "The Court cannot supply what it thinks the legislature would have supplied had its attention been called to the omission, as that would be judicial legislation."37

Stated differently, the Court has no power to add another member by judicial construction.

The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the Constitution against usurpation. The Court remains steadfast in confining its powers in the sphere granted by the Constitution itself. Judicial activism should never be allowed to become judicial exuberance.38 In cases like this, no amount of practical logic or convenience can convince the Court to perform either an excision or an insertion that will change the manifest intent of the Framers. To broaden the scope of congressional representation in the JBC is tantamount to the inclusion of a subject matter which was not included in the provision as enacted. True to its constitutional mandate, the Court cannot craft and tailor constitutional provisions in order to accommodate all of situations no matter how ideal or reasonable the proposed solution may sound. To the exercise of this intrusion, the Court declines.

WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED.

The suspension of the effects of the second paragraph of the dispositive portion of the July 17, 2012 Decision of the Court, which reads, "This disposition is immediately executory," is hereby LIFTED.

SO ORDERED.

DISSENTING OPINION

ABAD, J.:

On July 17, 2012, the Court rendered a Decision1 granting the petition for declaration of unconstitutionality, prohibition, and injunction filed by petitioner Francisco I. Chavez, and declaring that the current numerical composition of the Judicial and Bar Council (JBC) is unconstitutional. The Court also enjoined the JBC to reconstitute itself so that only one member of Congress will sit as a representative in its proceedings, in accordance with Section 8(1), Article VIII of the 1987 Constitution.

On July 24, 2012, respondents Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas, Jr. moved for reconsideration.2 The Court then conducted and heard the parties in oral arguments on the following Issues:

1. Whether or not the current practice of the JBC to perform its functions with eight members, two of whom are members of Congress, runs counter to the letter and spirit of Section 8(1), Article VIII of the 1987 Constitution.

A. Whether or not the JBC should be composed of seven members only.

B. Whether or not Congress is entitled to more than one seat in the JBC.

C. Assuming Congress is entitled to more than one seat, whether or not each representative of Congress should be entitled to exercise one whole vote.

I maintain my dissent to the majority opinion now being reconsidered.

To reiterate, the vital question that needs to be resolved is: whether or not the Senate and the House of Representatives are entitled to one representative each in the JBC, both with the right to cast one full vote in its deliberations.

At the core of the present controversy is Section 8(1), Article VIII of the 1987 Constitution, which provides that:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. (Emphasis supplied)

In interpreting Section 8(1) above, the majority opinion reiterated that in opting to use the singular letter "a" to describe "representative of the Congress," the Filipino people through the framers of the 1987 Constitution intended Congress to just have one representative in the JBC. The majority opinion added that there could not have been any plain oversight in the wordings of the provision since the other provisions of the 1987 Constitution were amended accordingly with the shift to a bicameral legislative body.

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The mere fact, however, that adjustments were made in some provisions should not mislead the Court into concluding that all provisions have been amended to recognize the bicameral nature of Congress. As I have previously noted in my dissenting opinion, Fr. Joaquin G. Bernas, a member of the Constitutional Commission himself, admitted that the committee charged with making adjustments in the previously passed provisions covering the JBC, failed to consider the impact of the changed character of the Legislature on the inclusion of "a representative of the Congress" in the membership of the JBC.3

Indeed, to insist that only one member of Congress from either the Senate or the House of Representatives should sit at any time in the JBC, is to ignore the fact that they are still separate and distinct from each other although they are both involved in law-making. Both legislators are elected differently, maintain separate administrative organizations, and deliberate on laws independently. In fact, neither the Senate nor the House of Representatives can by itself claim to represent the Congress.

Again, that the framers of the 1987 Constitution did not intend to limit the term "Congress" to just either of the two Houses can be seen from the words that they used in crafting Section 8(1 ). While the provision provides for just "a representative of the Congress," it also provides that such representation is "ex officio" or "by virtue of one's office, or position."4

Under the Senate rules, the Chairperson of its Justice Committee is automatically the Senate representative to the JBC. In the same way, under the House of Representatives rules, the Chairperson of its Justice Committee is the House representative to the JBC. Consequently, there are actually two persons in Congress who hold separate offices or positions with the attached function of sitting in the JBC. If the Court adheres to a literal translation of Section 8(1 ), no representative from Congress will qualify as "ex officio" member of the JBC. This would deny Congress the representation that the framers of the 1987 Constitution intended it to have.

Having said that the Senate and the House of Representatives should have one representative each in the JBC, it is logical to conclude that each should also have the right to cast one full vote in its deliberations. To split the vote between the two legislators would be an absurdity since it would diminish their standing and make them second class members of the JBC, something that the Constitution clearly does not contemplate. Indeed, the JBC abandoned the half-a-vote practice on January 12, 2000 and recognized the right of both legislators to cast one full vote each. Only by recognizing this right can the true spirit and reason of Section 8(1) be attained.

For the above reasons, I vote to GRANT the motion for reconsideration.

DISSENTING OPINION

LEONEN, J.:

I dissent.

Both the Senate and the House of Representatives must be represented in the Judicial and Bar Council. This is the Constitution's mandate read as a whole and in the light of the ordinary and contemporary understanding of our people of the structure of our government. Any other interpretation diminishes Congress and negates the effectivity of its representation in the Judicial and Bar Council.

It is a Constitution we are interpreting. More than privileging a textual preposition, our duty is to ensure that the constitutional project ratified by our people is given full effect.

At issue in this case is the interpretation of Article VIII, Section 8 of the Constitution which provides the following:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of

Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. (Emphasis provided)

Mainly deploying verba legis as its interpretative modality, the main opinion chooses to focus on the article "a." As correctly pointed out in the original dissent of Justice Robert A bad, the entire phrase includes the words "representative of Congress" and "ex officio Members." In the context of the constitutional plan involving a bicameral Congress, these words create ambiguity.

A Bicameral Congress

Our Constitution creates a Congress consisting of two chambers. Thus, in Article VI, Section 1, the Constitution provides the following:

The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives x x x. (Emphasis provided)

Senators are "elected at large by the qualified voters of the Philippines". 1 Members of the House of Representatives, on the other hand, are elected by legislative districts2 or through the party list system.3 The term of a Senator4 is different from that of a Member of the House of Representatives.5 Therefore, the Senate and the House of Representatives while component parts of the Congress are not the same in terms of their representation. The very rationale of a bicameral system is to have the Senators represent a national constituency. Representatives of the House of Representatives, on

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the other hand, are dominantly from legislative districts except for one fifth which are from the party list system.

Each chamber is organized separately.6 The Senate and the House each promulgates their own rules of procedure.7 Each chamber maintains separate Journals.8 They each have separate Records of their proceedings.9The Senate and the House of Representatives discipline their own respective members.10

To belabor the point: There is no presiding officer for the Congress of the Philippines, but there is a Senate President and a Speaker of the House of Representatives. There is no single journal for the Congress of the Philippines, but there is a journal for the Senate and a journal for the House of Representatives. There is no record of proceedings for the entire Congress of the Philippines, but there is a Record of proceedings for the Senate and a Record of proceedings for the House of Representatives. The Congress of the Philippines does not discipline its members. It is the Senate that promulgates its own rules and disciplines its members. Likewise, it is the House that promulgates its own rules and disciplines its members.

No Senator reports to the Congress of the Philippines. Rather, he or she reports to the Senate. No Member of the House of Representatives reports to the Congress of the Philippines. Rather, he or she reports to the House of Representatives.

Congress, therefore, is the Senate and the House of Representatives. Congress does not exist separate from the Senate and the House of Representatives.

Any Senator acting ex officio or as a representative of the Senate must get directions from the Senate. By constitutional design, he or she cannot get instructions from the House of Representatives. If a Senator represents the Congress rather than simply the Senate, then he or she must be open to amend or modify the instructions given to him or her by the Senate if the House of Representatives’ instructions are different. Yet, the Constitution vests disciplinary power only on the Senate for any Senator.

The same argument applies to a Member of the House of Representatives.

No Senator may carry instructions from the House of Representatives. No Member of the House of Representatives may carry instructions from the Senate. Neither Senator nor Member of the House of Representatives may therefore represent Congress as a whole.

The difference between the Senate and the House of Representative was a subject of discussion in the Constitutional Commission. In the July 21, 1986 Records of the Constitutional Commission, Commissioner Jose F. S. Bengzon presented the following argument during the discussion on bicameralism, on the distinction between Congressmen and Senators, and the role of the Filipino people in making these officials accountable:

I grant the proposition that the Members of the House of Representatives are closer to the people that they represent. I grant the proposition that the Members of the House of Representatives campaign on a one-to-one basis with the people in the barrios and their constituencies. I also grant the proposition that the candidates for Senator do not have as much time to mingle around with their constituencies in their respective home bases as the candidates for the House. I also grant the proposition that the candidates for the Senate go around the country in their efforts to win the votes of all the members of the electorate at a lesser time than that given to the candidates for the House of Representatives. But then the lesson of the last 14 years has made us mature in our political thinking and has given us political will and self-determination. We really cannot disassociate the fact that the Congressman, the Member of the House of Representatives, no matter how national he would like to think, is very much strongly drawn into the problems of his local constituents in his own district.

Due to the maturity of the Filipinos for the last 14 years and because of the emergence of people power, I believe that this so-called people power can be used to monitor not only the Members of the House of Representatives but also the Members of the Senate. As I said we may have probably adopted the American formula in the beginning but over these years, I think we have developed that kind of a system and adopted it to our own needs. So at this point in time, with people power working, it is not only the Members of the House who can be subjected to people power but also the Members of the Senate because they can also be picketed and criticized through written articles and talk shows. And even the people not only from their constituencies in their respective regions and districts but from the whole country can exercise people power against the Members of the Senate because they are supposed to represent the entire country. So while the Members of Congress become unconsciously parochial in their desire to help their constituencies, the Members of the Senate are there to take a look at all of these parochial proposals and coordinate them with the national problems. They may be detached in that sense but they are not detached from the people because they themselves know and realize that they owe their position not only to the people from their respective provinces but also to the people from the whole country. So, I say that people power now will be able to monitor the activities of the Members of the House of Representatives and that very same people power can be also used to monitor the activities of the Members of the Senate.11

Commissioner Bengzon provided an illustration of the fundamental distinction between the House of Representatives and the Senate, particularly regarding their respective constituencies and electorate. These differences, however, only illustrate that the work of the Senate and the House of Representatives taken together results in a Congress functioning as one branch of government. Article VI, Section 1, as approved by the

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Commission, spoke of one Congress whose powers are vested in both the House of Representatives and the Senate.

Thus, when the Constitution provides that a "representative of Congress" should participate in the Judicial and Bar Council, it cannot mean a Senator carrying out the instructions of the House or a Member of the House of Representative carrying out instructions from the Senate. It is not the kind of a single Congress contemplated by our Constitution. The opinion therefore that a Senator or a Member of the House of Representative may represent the Congress as a whole is contrary to the intent of the Constitution. It is unworkable.

One mechanism used in the past to work out the consequence of the majority’s opinion is to allow a Senator and a Member of the House of Representative to sit in the Judicial and Bar Council but to each allow them only half a vote.

Within the Judicial and Bar Council, the Chief Justice is entitled to one vote. The Secretary of Justice is also entitled to one whole vote and so are the Integrated Bar of the Philippines, the private sector, legal academia, and retired justices. Each of these sectors are given equal importance and rewarded with one whole vote. However, in this view, the Senate is only worth fifty percent of the wisdom of these sectors. Likewise, the wisdom of the House of Representatives is only worth fifty percent of these institutions.

This is constitutionally abominable. It is inconceivable that our people, in ratifying the Constitution granting awesome powers to Congress, intended to diminish its component parts. After all, they are institutions composed of people who have submitted themselves to the electorate. In creating shortlists of possible candidates to the judiciary, we can safely suppose that their input is not less than the input of the professor of law or the member of the Integrated Bar of the Philippines or the member from the private sector.

The other solution done in the past was to alternate the seat between a Senator and a Member of the House of Representatives.

To alternate the seat given to Congress between the Senate and the House of Representatives would mean not giving a seat to the Congress at all. Again, when a Senator is seated, he or she represents the Senate and not Congress as a whole. When a Member of the House of Representative is seated, he or she can only represent Congress as a whole. Thus, alternating the seat not only diminishes congressional representation; it negates it.

Constitutional Interpretation

The argument that swayed the majority in this case’s original decision was that if those who crafted our Constitution intended that there be two representatives from Congress,

it would not have used the preposition "a" in Article VIII, Section 8 (1). However, beyond the number of representatives, the Constitution intends that in the Judicial and Bar Council, there will be representation from Congress and that it will be "ex officio", i.e., by virtue of their positions or offices. We note that the provision did not provide for a number of members to the Judicial and Bar Council. This is unlike the provisions creating many other bodies in the Constitution.12

In other words, we could privilege or start our interpretation only from the preposition "a" and from there provide a meaning that ensures a difficult and unworkable result -- one which undermines the concept of a bicameral congress implied in all the other 114 other places in the Constitution that uses the word "Congress".

Or, we could give the provision a reasonable interpretation that is within the expectations of the people who ratified the Constitution by also seeing and reading the words "representative of Congress" and "ex officio."

This proposed interpretation does not violate the basic tenet regarding the authoritativeness of the text of the Constitution. It does not detract from the text. It follows the canonical requirement of verba legis. But in doing so, we encounter an ambiguity.

In Macalintal v. Presidential Electoral Tribunal,13 we said:

As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law to obtain that it should ever be present in the people’s consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are cases where the need for construction is reduced to a minimum.

However, where there is ambiguity or doubt, the words of the Constitution should be interpreted in accordance with the intent of its framers or ratio legis et anima. A doubtful provision must be examined in light of the history of the times, and the condition and circumstances surrounding the framing of the Constitution. In following this guideline, courts should bear in mind the object sought to be accomplished in adopting a doubtful constitutional provision, and the evils sought to be prevented or remedied. Consequently, the intent of the framers and the people ratifying the constitution, and not the panderings of self-indulgent men, should be given effect.

Last, ut magis valeat quam pereat – the Constitution is to be interpreted as a whole. We intoned thus in the landmark case of Civil Liberties Union v. Executive Secretary:

It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all

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the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory. (Emphasis provided)

And in Civil Liberties Union v. Executive Secretary,13 we said:

A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose.

The authoritativeness of text is no excuse to provide an unworkable result or one which undermines the intended structure of government provided in the Constitution. Text is authoritative, but it is not exhaustive of the entire universe of meaning.

There is no compelling reason why we should blind ourselves as to the meaning of "representative of Congress" and "ex officio." There is no compelling reason why there should only be one representative of a bicameral Congress.

Proposed Reasons for Only One Representative of Congress

The first reason to support the need for only one representative of Congress is the belief that there needs to be an odd number in the Judicial and Bar Council.

This is true only if the decision of the constitutional organ in question is a dichotomous one, i.e., a yes or a no. It is in this sense that a tie-breaker will be necessary.

However, the Judicial and Bar Council is not that sort of a constitutional organ. Its duty is to provide the President with a shortlist of candidates to every judicial position. We take judicial notice that for vacancies, each member of the Judicial and Bar Council is asked to list at least three (3) names. All these votes are tallied and those who garner a specific plurality are thus put on the list and transmitted to the President. There had been no occasion when the Judicial and Bar Council ever needed to break a tie. The

Judicial and Bar Council’s functions proceed regardless of whether they have seven or eight members.

The second reason that the main opinion accepted as persuasive was the opinion that Congress does not discharge its function to check and balance the power of both the Judiciary and the Executive in the Judicial and Bar Council. From this premise, it then proceeds to argue that the Representative of Congress, who is ex officio, does not need to consult with Congress as a whole.

This is very perplexing and difficult to accept.

By virtue of the fundamental premise of separation of powers, the appointing power in the judiciary should be done by the Supreme Court. However, for judicial positions, this is vested in the Executive. Furthermore, because of the importance of these appointments, the President’s discretion is limited to a shortlist submitted to him by the Judicial and Bar Council which is under the supervision of the Supreme Court but composed of several components.

The Judicial and Bar Council represents the constituents affected by judicial appointments and by extension, judicial decisions. It provides for those who have some function vis a vis the law that should be applied and interpreted by our courts. Hence, represented are practicing lawyers (Integrated Bar of the Philippines), prosecutors (Secretary of the Department of Justice), legal academia (professor of law), and judges or justices (retired justice and the Chief Justice). Also represented in some way are those that will be affected by the interpretation directly (private sector representative).

Congress is represented for many reasons.

One, it crafts statutes and to that extent may want to ensure that those who are appointed to the judiciary are familiar with these statutes and will have the competence, integrity, and independence to read its meaning.

Two, the power of judicial review vests our courts with the ability to nullify their acts. Congress, therefore, has an interest in the judicial philosophy of those considered for appointment into our judiciary.

Three, Congress is a political organ. As such, it is familiar with the biases of our political leaders including that of the President. Thus, it will have greater sensitivity to the necessity for political accommodations if there be any. Keeping in mind the independence required of our judges and justices, the Members of Congress may be able to appreciate the kind of balance that will be necessary -- the same balance that the President might be able to likewise appreciate -- when putting a person in the shortlist of judicial candidates. Not only do they appreciate this balance, they embody it. Senators and Members of the House of Representatives (unlike any of the other

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members of the Judicial and Bar Council), periodically submit themselves to the electorate.

It is for these reasons that the Congressional representatives in the Judicial and Bar Council may be instructed by their respective chambers to consider some principles and directions. Through resolutions or actions by the Congressional Committees they represent, the JBC Congressional representatives’ choices may be constrained. Therefore, they do not sit there just to represent themselves. Again, they are "representatives of Congress" "ex officio".

The third reason to support only one representative of Congress is the belief that there is the "unmistakable tenor" in the provision in question that one co-equal branch should be represented only by one Representative.14 It may be true that the Secretary of Justice is the political alter ego of the President or the Executive. However, Congress as a whole does not have a political alter ego. In other words, while the Executive may be represented by a single individual, Congress cannot be represented by an individual. Congress, as stated earlier, operates through the Senate and the House of Representatives. Unlike the Executive, the Legislative branch cannot be represented by only one individual.

A Note on the Work of the Constitutional Commission

Time and again, we have clarified the interpretative value to Us of the deliberations of the Constitutional Commission. Thus in Civil Liberties Union v. Executive Secretary, we emphasized:

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention ‘are of value as showing the views of the individual members, and as indicating the reason for their votes, but they give Us no light as to the views of the large majority who did not talk, much less of the mass or our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face.’The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers’ understanding thereof.15 (Emphasis provided)

Also worth Our recall is the celebrated comment of Charles P. Curtis, Jr. on the role of history in constitutional exegesis:16

The intention of the framers of the Constitution, even assuming we could discover what it was, when it is not adequately expressed in the Constitution, that is to say, what they meant when they did not say it, surely that has no binding force upon us . If we

look behind or beyond what they set down in the document, prying into what else they wrote and what they said, anything we may find is only advisory. They may sit in at our councils. There is no reason why we should eavesdrop on theirs .17 (Emphasis provided)

In addition to the interpretative value of the discussion in the Constitutional Commission, we should always be careful when we quote from their records without understanding their context.

The Committees of the Constitutional Commission were all tasked to finish their reports not later than July 7, 1986.18 The Second and Third Readings were scheduled to finish not later than August 15, 1986.19 The members of the Sponsorship and Style Committee were tasked to finish their work of formulating and polishing the style of the final draft of the new Constitution scheduled for submission to the entire membership of the Commission not later than August 25, 1986.20

The Rules of the Constitutional Commission also provided for a process of approving resolutions and amendments.

Constitutional proposals were embodied in resolutions signed by the author. 21 If they emanated from a committee, the resolution was signed by its chairman.22 Resolutions were filed with the Secretary-General.23 The First Reading took place when the titles of the resolutions were read and referred to the appropriate committee.24

The Committees then submitted a Report on each resolution.25 The Steering Committee took charge of including the committee report in the Calendar for Second Reading.26 The Second Reading took place on the day set for the consideration of a resolution.27 The provisions were read in full with the amendments proposed by the committee, if there were any.28

A motion to close debate took place after three speeches for and two against, or if only one speech has been raised and none against it.29 The President of the Constitutional Commission had the prerogative to allow debates among those who had indicated that they intended to be heard on certain matters.30 After the close of the debate, the Constitutional Commission proceeded to consider the Committee amendments.31

After a resolution was approved on Second Reading, it was included in the Calendar for Third Reading.32 Neither further debate nor amendment shall be made on the resolution on its Third Reading.33 All constitutional proposals approved by the Commission after Third Reading were referred to the Committees on Sponsorship and Style for collation, organization, and consolidation into a complete and final draft of the Constitution.34 The final draft was submitted to the Commission for the sole purpose of determining whether it reflects faithfully and accurately the proposals as approved on Second Reading.35

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With respect to the provision which is now Article VIII, Section 8 (1), the timetable was as follows:

On July 10, 1986, the Committee on the Judiciary presented its Report to the Commission.36 Deliberations then took place on the same day; on July 11, 1986; and on July 14, 1986. It was on July 10 that Commissioner Rodrigo raised points regarding the Judicial and Bar Council.37 The discussion spoke of the Judicial and Bar Council having seven members.

Numerous mentions of the Judicial and Bar Council being comprised of seven members were also made by Commissioners on July 14, 1986. On the same day, the amended article was approved by unanimous voting.38

On July 19, 1986, the vote on Third Reading on the Article on the Judiciary took place.39 The vote was 43 and none against.40

Committee Report No. 22 proposing an article on a National Assembly was reported out by July 21, 1986.41 It provided for a unicameral assembly. Commissioner Hilario Davide, Jr., made the presentation and stated that they had a very difficult decision to make regarding bicameralism and unicameralism.42 The debate occupied the Commission for the whole day.

Then, a vote on the structure of Congress took place.43 Forty four (44) commissioners cast their votes during the roll call.44 The vote was 23 to 22.45

On October 8, 1986, the Article on the Judiciary was reopened for purposes of introducing amendments to the proposed Sections 3, 7, 10, 11, 13, and 14.46

On October 9, 1986, the entire Article on the Legislature was approved on Third Reading.47

By October 10, 1986, changes in style on the Article on the Legislature were introduced.48

On October 15, 1986, Commissioner Guingona presented the 1986 Constitution to the President of the Constitutional Commission, Cecilia Munoz-Palma.49

It is apparent that the Constitutional Commission either through the Style and Sponsorship Committee or the Committees on the Legislature and the Judiciary was not able to amend the provision concerning the Judicial and Bar Council after the Commission had decided to propose a bicameral Congress. We can take judicial notice of the chronology of events during the deliberations of the Constitutional Commission. The chronology should be taken as much as the substance of discussions exchanged between the Commissioners.

The quotations from the Commissioners mentioned in the main opinion and in the proposed resolution of the present Motion for Reconsideration should thus be appreciated in its proper context.

The interpellation involving Commissioners Rodrigo and Concepcion took place on July 10, 1986 and on July 14, 1986.50 These discussions were about Committee Report No. 18 on the Judiciary. Thus:

MR. RODRIGO: Let me go to another point then.

On page 2, Section 5, there is a novel provision about appointments of members of the Supreme Court and of judges of lower courts. At present it is the President who appoints them. If there is a Commission on Appointments, then it is the President with the confirmation of the Commission on Appointments. In this proposal, we would like to establish a new office, a sort of a board composed of seven members, called the Judicial and Bar Council. And while the President will still appoint the members of the judiciary, he will be limited to the recommendees of this Council.

x x x x

MR. RODRIGO: Of the seven members of the Judicial and Bar Council, the President appoints four of them who are the regular members.

x x x x

MR. CONCEPCION: The only purpose of the Committee is to eliminate partisan politics.51

x x x x

It must also be noted that during the same day and in the same discussion, both Commissioners Rodrigo and Concepcion later on referred to a ‘National Assembly’ and not a ‘Congress,’ as can be seen here:

MR. RODRIGO: Another point. Under our present Constitution, the National Assembly may enact rules of court, is that right? On page 4, the proviso on lines 17 to 19 of the Article on the Judiciary provides:

The National Assembly may repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme Court.

MR. CONCEPCION: Yes.

MR. RODRIGO: So, two things are required of the National Assembly before it can repeal, alter or supplement the rules concerning the protection and enforcement of constitutional rights, pleading, etc. — it must have the advice and concurrence of the Supreme Court.

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MR. CONCEPCION: That is correct.52

On July 14, 1986, the Commission proceeded with the Period of Amendments. This was when the exchange noted in the main opinion took place. Thus:

MR. RODRIGO: If my amendment is approved, then the provision will be exactly the same as the provision in the 1935 Constitution, Article VIII, Section 5.

x x x x

If we do not remove the proposed amendment on the creation of the Judicial and Bar Council, this will be a diminution of the appointing power of the highest magistrate of the land, of the President of the Philippines elected by all the Filipino people. The appointing power will be limited by a group of seven people who are not elected by the people but only appointed.

Mr. Presiding Officer, if this Council is created, there will be no uniformity in our constitutional provisions on appointments. The members of the Judiciary will be segregated from the rest of the government. Even a municipal judge cannot be appointed by the President except upon recommendation or nomination of three names by this committee of seven people, commissioners of the Commission on Elections, the COA and Commission on Civil Service x x x even ambassadors, generals of the Army will not come under this restriction. Why are we going to segregate the Judiciary from the rest of our government in the appointment of the high-ranking officials?

Another reason is that this Council will be ineffective. It will just besmirch the honor of our President without being effective at all because this Council will be under the influence of the President. Four out of seven are appointees of the President, and they can be reappointed when their term ends. Therefore, they would kowtow to the President. A fifth member is the Minister of Justice, an alter ego of the President. Another member represents the legislature. In all probability, the controlling party in the legislature belongs to the President and, therefore, this representative from the National Assembly is also under the influence of the President. And may I say, Mr. Presiding Officer, that even the Chief Justice of the Supreme Court is an appointee of the President. So, it is futile; he will be influenced anyway by the President.53

It must again be noted that during this day and period of amendments after the quoted passage in the Decision, the Commission later on made use of the term ‘National Assembly’ and not ‘Congress’ again:

MR. MAAMBONG: Presiding Officer and members of the Committee, I propose to delete the last sentence on Section 16, lines 28 to 30 which reads: "The Chief Justice shall address the National Assembly at the opening of each regular session."

May I explain that I have gone over the operations of other deliberative assemblies in some parts of the world, and I noticed that it is only the Chief Executive or head of state who addresses the National Assembly at its opening. When we say "opening," we are referring to the first convening of any national assembly. Hence, when the Chief Executive or head of state addresses the National Assembly on that occasion, no other speaker is allowed to address the body.

So I move for the deletion of this last sentence.54

Based on the chronology of events, the discussions cited by the main ponencia took place when the commissioners were still contemplating a unicameral legislature in the course of this discussion. Necessarily, only one Representative would be needed to fully effect the participation of a unicameral legislature. Therefore, any mention of the composition of the JBC having seven members in the records of the Constitutional Commission, particularly during the dates cited, was obviously within the context that the Commission had not yet voted and agreed upon a bicameral legislature.

The composition of the Congress as a bilateral legislature became final only after the JBC discussions as a seven-member Council indicated in the Records of the Constitutional Commission took place. This puts into the proper context the recognition by Commissioner Christian Monsod on July 30, 1986, which runs as follows:

Last week, we voted for a bicameral legislature. Perhaps it is symptomatic of what the thinking of this group is, that all the provisions that were being drafted up to that time assumed a unicameral government.55

The repeated mentions of the JBC having seven members as indicated in the Records of the Constitutional Commission do not justify the points raised by petitioner. This is a situation where the records of the Constitutional Commission do not serve even as persuasive means to ascertain intent at least in so far as the intended numbers for the Judicial and Bar Council. Certainly they are not relevant even to advise us on how Congress is to be represented in that constitutional organ.

We should never forget that when we interpret the Constitution, we do so with full appreciation of every part of the text within an entire document understood by the people as they ratified it and with all its contemporary consequences. As an eminent author in constitutional theory has observed while going through the various interpretative modes presented in jurisprudence: "x x x all of the methodologies that will be discussed, properly understood, figure in constitutional analysis as opportunities: as starting points, constituent parts of complex arguments, or concluding evocations." 56

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Discerning that there should be a Senator and a Member of the House of Representatives that sit in the Judicial and Bar Council so that Congress can be fully represented ex officio is not judicial activism. It is in keeping with the constitutional project of a bicameral Congress that is effective whenever and wherever it is represented. It is in tune with how our people understand Congress as described in the fundamental law. It is consistent with our duty to read the authoritative text of the Constitution so that ordinary people who seek to understand this most basic law through Our decisions would understand that beyond a single isolated text -- even beyond a prepos1t10n in Article VIII, Section 8 (1 ), our primordial values and principles are framed, congealed and will be given full effect.

In a sense, we do not just read words in a legal document; we give meaning to a Constitution.

For these reasons, I vote to grant the Motion for Reconsideration and deny the Petition for lack of merit.

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