EN BANC
G.R. No. 217725, May 31, 2016
GLENN A. CHONG AND ANG KAPATIRAN PARTY, REPRESENTED BY NORMAN V. CABRERA, Petitioners, v. SENATE OF THE PHILIPPINES, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON; HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER FELICIANO S. BELMONTE, JR.; COMMISSION ON ELECTIONS, REPRESENTED BY ACTING CHAIRPERSON CHRISTIAN ROBERT S. LIM; ADVISORY COUNCIL, REPRESENTED BY UNDERSECRETARY LOUIS NAPOLEON C. CASAMBRE; TECHNICAL EVALUATION COMMITTEE, REPRESENTED BY DOST SECRETARY MARIO G. MONTEJO; DEPARTMENT OF BUDGET AND MANAGEMENT, HEADED BY SECRETARY FLORENCIO B. ABAD, Respondents.
D E C I S I O N
REYES, J.:
This petition for certiorari1 and/or prohibition with prayer for the issuance of a writ of preliminary injunction and/or a temporary restraining order, assails the constitutionality of Sections 8, 9, 10 and 11 of Republic Act (R.A.) No. 8436,2 as amended by Section 93 of R.A. No. 9369,4 providing for the creation of an Advisory Council (AC) and a Technical Evaluation Committee (TEC), on the ground that it encroaches on the Commission on Elections' (COMELEC) mandate to administer and enforce all laws relating to the elections as provided for in Section 2(1),5 Article IX-C of the 1987 Constitution.
Nothing in the role of the Council or any outside intervention or influence shall be construed as an abdication or diminution of the Commission's authority and responsibility for the effective development, management and implementation of the AES and this Act.cralawredEvidently, the AC and the TEC were created to aid the COMELEC in fulfilling its mandate and authority to use an effective AES for free, orderly, honest, peaceful, credible and informed elections. The actions of the AC and the TEC neither bind nor prohibit the COMELEC from enforcing and administering election laws.
In sum, the Congress created the [AC] and the TEC not to encroach upon the exclusive power of the COMELEC to enforce and administer laws relating to the conduct of the elections, but to (1) ensure that the COMELEC is guided and assisted by experts in the field of technology in adopting the most effective and efficient [AES]; and (2) to ensure clean elections by having disinterested parties closely monitor the COMELEC in procuring systems that operate properly, securely, and accurately. As such, it is apparent that, through the [AC] and the TEC, the Congress merely checks and balances the power of the COMELEC to enforce and administer R.A. No. 8436, as amended by R.A. No. 9369. It does not, however, substitute its own wisdom for that of the COMELEC.16cralawredWHEREFORE, the instant petition is hereby DISMISSED.
Endnotes:
1Rollo, pp. 3-54.
2 AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES. Approved on December 22, 1997.
3SEC. 9. New section 8, 9, 10 and 11 are hereby provided to read as follows:chanRoblesvirtualLawlibrary"SEC. 8. The Advisory Council. - The Commission shall create an Advisory Council, hereafter referred to as the Council, which shall be convened not later than eighteen (18) months prior to the next scheduled electoral exercise, and deactivated six months after completion of canvassing: Provided, for purposes of the 2007 elections, the Advisory Council shall be immediately convened within ten (10) days after the effectivity of this Act.4 AN ACT AMENDING REPUBLIC ACT NO. 8436. Approved on January 23, 2007.
The Council shall be composed of the following members, who must be registered Filipino voters, of known independence, competence and probity:chanRoblesvirtualLawlibrary(a) The Chairman of the Commission on Information and Communications Technology (CICT) who shall act as the chairman of the Council;A person who is affiliated with any political party or candidate for any national position, or is related to a candidate for any national position by affinity or consanguinity within the fourth civil degree, shall not be eligible for appointment or designation to the Advisory Council. Should any such situation arise at any time during the incumbency of a member, the designation or appointment of that member, shall ipso facto be terminated.
(b) One member from the Department of Science and Technology;
(c) One member from the Department of Education;
(d) One member representing the academe, to be selected by the chair of the Advisory Council from among the list of nominees submitted by the country's academic institutions;
(e) Three members representing ICT professional organizations to be selected by the chair of the Advisory Council from among the list of nominees submitted by Philippine-based ICT professional organizations. Nominees shall be individuals, at least one of whom shall be experienced in managing or implementing large-scale IT projects.
(f) Two members representing non-governmental electoral reform organizations, to be selected by the chair of the Advisory Council from among the list of nominees submitted by the country's non-governmental electoral reform organizations.cralawred
Any member of the Advisory Council is prohibited from engaging, directly or indirectly, with any entity that advocates, markets, imports, produces or in any manner handles software, hardware or any equipment that may be used for election purposes for personal gain.
Any violation of the two immediate preceding paragraphs shall disqualify said member from the Advisory Council and shall be punishable as provided in this Act and shall be penalized in accordance with the Anti-Graft and Corrupt Practices Act and other related laws.
The council may avail itself of the expertise and services of resource persons who are of known independence, competence and probity, are nonpartisan, and do not posses any of the disqualifications applicable to a member of the Advisory Council as provided herein. The resource persons shall also be subject to the same prohibitions and penalties as the members of the Advisory Council.
The Commission on Information and Communications Technology (CICT), shall include in its annual appropriation the funds necessary to enable the Council to effectively perform its functions."
"SEC. 9. Functions of the Advisory Council. - The Council shall have the following functions:Nothing in the role of the Council or any outside intervention or influence shall be construed as an abdication or diminution of the Commission's authority and responsibility for the effective development, management and implementation of the AES and this Act.
- Recommend the most appropriate, secure, applicable and cost-effective technology to be applied in the AES, in whole or in part, at that specific point in time.
- Participate as nonvoting members of the Bids and Awards Committee in the conduct of the bidding process for the AES. Members of the Advisory Council representing the 1CT professional organizations are hereby excluded from participating in any manner in the Bids and Awards Committee.
- Participate as nonvoting members of the steering committee tasked with the implementation of the AES. Members of the Advisory Council representing the ICT professional organizations are hereby excluded from participating in any manner in the steering committee.
- Provide advice and assistance in the review of the systems planning, inception, development, testing, operationalization, and evaluation stages.
- Provide advice and/or assistance in the identification, assessment and resolution of systems problems or inadequacies as may surface or resurface in the course of the bidding, acquisition, testing, operationalization, re-use, storage or disposition of the AES equipment and/or resources as the case may be.
- Provide advice and/or assistance in the risk management of the AES especially when a contingency or disaster situation arises.
- Prepare and submit a written report, which shall be submitted within six months from the date of the election to the oversight committee, evaluating the use of the AES.
The Advisory Council shall be entitled to a just and reasonable amount of per diem allowances and/or honoraria to cover the expenses of the services rendered chargeable against the budget of the Commission."
"SEC. 10. The Technical Evaluation Committee. - The Commission, in collaboration with the chairman of the Advisory Council, shall establish an independent technical evaluation committee, herein known as the Committee, composed of a representative each from the Commission, the Commission on Information and Communications Technology and the Department of Science and Technology who shall act as chairman of the Committee.
The Committee shall be immediately convened within ten (10) days after the effectivitv of this Act."
"SEC. 11. Functions of the Technical Evaluation Committee. - The Committee shall certify, through an established international certification entity to be chosen by the Commission from the recommendations of the Advisory Council, not later than three months before the date of the electoral exercise, categorically stating that the AES, including its hardware and software components, is operating properly, securely, and accurately, in accordance with the provisions of this Act based, among others, on the following documented results:For purposes of the 2007 elections, the certification shall be done not later than eight weeks prior to the date of the elections.
- The successful conduct of a field testing process followed by a mock election event in one or more cities/municipalities;
- The successful completion of audit on the accuracy, functionality and security controls of the AES software;
- The successful completion of a source code review;
- A certification that the source code is kept in escrow with the Bangko Sentral ng Pilipinas;
- A certification that the source code reviewed is one and the same as that used by the equipment; and
- The development, provisioning, and operationalization of a continuity plan to cover risks to the AES at all points in the process such that a failure of elections, whether at voting, counting or consolidation, may be avoided.
If the Commission decides to proceed with the use of the AES without the Committee's certification, it must submit its reason in writing, to the Oversight Committee, no less than thirty (30) days prior to the electoral exercise where the AES will be used.
The Committee may avail itself of the expertise and services of resource persons who are of known independence, competence and probity, are nonpartisan, and who do not possess any of the disqualifications applicable to a member of the Advisory Council as provided herein The resource persons shall also be subject to the same prohibitions and penalties as the members of the Advisory Council.
The Committee shall closely coordinate with the steering committee of the Commission tasked with the implementation of the AES in the identification and agreement of the project deliveries and timelines, and in the formulation of the acceptance criteria for each deliverable "cralawred
5Section 2. The Commission on Elections shall exercise the following powers and functions:
1. Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.
6 615 Phil. 149 (2009).
7 Id. at 192.
8Rollo, pp. 78-79.
9 Id. at 104-149.
10 612 Phil. 793 (2009).
11 AN ACT PROVIDING FOR SYNCHRONIZED NATIONAL AND LOCAL ELECTIONS AND FOR ELECTORAL REFORMS, AUTHORIZING APPROPRIATIONS THEREFOR, AND FOR OTHER PURPOSES. Approved on November 26, 1991.
12 OMNIBUS ELECTION CODE OF THE PHILIPPINES. Approved on December 3, 1985.
13Lawyers Against Monopoly and Poverty (LAMP), et al. v. The Secretary of Budget and Management, et al., 686 Phil. 357, 372 (2012), citing FariƱas v. The Executive Secretary, 463 Phil. 179, 197 (2003).
14 Id.
15Smart Communications, Inc. v. Municipality of Malvar, Batangas, 727 Phil. 430, 447 (2014), citing Lawyers Against Monopoly and Poverty (LAMP), et al. v. The Secretary of Budget and Management, et al., supra note 13, at 373.
16Rollo, p. 137.