II. Election Law>F.Election>f.

Canvassing and proclamation

214 Brillantes v. COMELEC, 432 SCRA 269 (2004)
Calleja, Sr. J June 15, 2004
FACTS:

Petitioner seeks to nullify Resolution 6712 approved by COMELEC captioned GENERAL

INSTRUCTIONS FOR THE ELECTRONIC TRANSMISSION AND CONSOLIDATION OF ADVANCED RESULTS
IN THE MAY 10, 2004 ELECTIONS.
In 1997, Congress enacted RA 8436, authorizing the COMELEC to use an automated election system
(AES) for the process of voting, counting of votes and canvassing/consolidating the results of the
national and local elections. It also mandated the COMELEC to acquire automated counting
machines (ACM), computer equipment, devices and materials; and to adopt new electoral forms
and printing materials.
COMELEC initially intended to implement the automation during the 1998 presidential elections;
failure of the machines to read correctly some automated ballots deferred its implementation
In the 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 because of time constraints
In 2002, COMELEC adopted a modernization program for the 2004 elections consisting of 3 phases:
1. Computerized system of registration and voters validation or the Biometrics system of
registration
2. Computerized voting and counting of votes
3. Electronic transmission of results
It also resolved to conduct biddings for the 3 phases
COMELEC promulgated Resolution No. 6074 awarding the contract for Phase 2 to Mega Pacific
Consortium (MPC) and correspondingly entered into a contract with the latter to implement the
project. On the same day, COMELEC entered into a contract with Phil Multi-Media System, Inc
(PMSI); contract pertains to Phase 3 of the modernization program
Meanwhile, the Information Technology Foundation of the PH (ITFP) filed a petition for certiorari and
prohibition for the nullification of Resolution 6074
In 2004, Court nullified Resolution 6074. Also voided was the subsequent contract entered into by
COMELEC with MPC for the purpose of implementing Phase 2; Phase 2 was thus scrapped (revert to
manual voting and counting system)
On the other hand, the validation scheme under Phase I of the AES encountered problems;
COMELEC made pronouncements prior to the elections that it was reverting to the old listing of
voters. Despite the scrapping of Phase 2, COMELEC nevertheless ventured to implement Phase 3
through an e-transmission of advanced unofficial results of the 2004 elections (unofficial quick
count)
Senate President Drilon wrote Chairman Abalos stating his opinion that the COMELEC should not
conduct a quick count on the results of the election for Pres and VP:
o Under Section 4 of Article VII of the Constitution, it is the Congress that has the sole and
exclusive authority to canvass the votes for President and Vice-President. Thus, any quick
count to be conducted by the Commission on said positions would in effect constitute a
canvass of the votes of the President and Vice-President, which not only would be preemptive of the authority of the Congress, but also would be lacking of any Constitutional
authority.
Notwithstanding and despite the explicit specification in the project contract for Phase 3 that the
same was functionally intended to be an interface of Phases 1 and 2, COMELEC was determined to
carry out Phase 3 of the AES.
COMELEC then met en banc to update itself on and resolve whether to proceed with its
implementation of Phase 3. COMELEC, 2 weeks before the national and local elections, approved
the assailed resolution declaring that it adopts the policy that the precinct election results of each
city and municipality shall be immediately transmitted electronically in advance to the COMELEC.
The assailed resolution further provides that written notices of the date, time and place of the etransmission of advanced precinct results shall be given. In addition, Section 13 provides that the
encoding proceedings were ministerial and the tabulations were advanced unofficial results.

In keeping with the unofficial character of the electronically transmitted precinct results, the
assailed resolution expressly provides that no print-outs shall be released, instead, consolidated
and per-precinct results shall be made available via the Internet, text messaging, and electronic
billboards in designated locations.
The National Citizens Movement for Free Elections (NAMFREL), and the heads of the major political
parties wrote the COMELEC detailing their concerns about the assailed resolution:
o The Resolution disregards RA 8173, 8436, and 7166 which authorize only the citizens arm to
use an election return for an unofficial count
o The conduct of an advanced count by the COMELEC may affect the credibility of the
elections because it will differ from the results obtained from canvassing.
Present petition as well as a petition in intervention was then filed.
Petitioner/Petitioners-in-intervention:
o Petitioner avers that there is no provision under Rep. Act No. 8436 which authorizes the
COMELEC to engage in the biometrics/computerized system of validation of voters (Phase I)
and a system of electronic transmission of election results (Phase III). Even assuming for the
nonce that all the three (3) phases are duly authorized, they must complement each other
as they are not distinct and separate programs but mere stages of one whole scheme.
Consequently, considering the failed implementation of Phases I and II, there is no basis at
all for the respondent COMELEC to still push through and pursue with Phase IIICounting
and consolidation of votes contemplated under Section 6 of Rep. Act No. 8436 refers to the
official COMELEC count under the fully automated system and not any kind of unofficial
count via electronic transmission of advanced results
o The petitioners-in-intervention advance the view that the assailed resolution effectively
preempts the sole and exclusive authority of Congress under Article VII, Section 4
of the Constitution to canvass the votes for President and Vice-President. Further,
as there has been no appropriation by Congress for the respondent COMELEC to conduct an
unofficial electronic transmission of results of the 2004 elections, any expenditure for the
said purpose contravenes the Constitution
o The petitioner and petitioners-in-intervention contend that the assailed resolution
encroaches upon the authority of NAMFREL, as the citizens accredited arm, to conduct the
unofficial quick count.
Respondent:
o questioned Courts jurisdiction (resolution was promulgated in the exercise of COMELECs
executive or administrative power; the present controversy involves a political question beyond the ambit of judicial review) and the legal standing of petitioner (injury to be
suffered as a result of implementation not alleged) 1
o denied that the assailed resolution was promulgated pursuant to RA 8346 and that it is the
implementation of Phase 3. It invokes the general grant to it of the power to enforce and
administer all laws relative to the conduct of elections and to promulgate rules and
regulations to ensure free, orderly and honest elections by the Constitution, the Omnibus
Election Code, and Rep. Acts Nos. 6646 and 7166. Also, it avers that granting arguendo it
was connected with Phase 3, no specific law was violated; Phases 1,2, 3 are mutually
exclusive schemes.
o It further argues that there is statutory basis for it to conduct an unofficial quick count.
Among others, it invokes the general grant to it of the power to ensure free, orderly, honest,
peaceful and credible elections.
o It also maintains that what is contemplated in the assailed resolution is not a
canvass of the votes but merely consolidation and transmittal thereof. As such, it
As to the procedural issues, SC ruled as follows:that petitioner and PII have standing (resolution involves expenditure of
funds, hence they have standing as taxpayers/most of them are members of major political parties and some represent
NAMFREL, thus, they have direct interest in the manner COMELEC would conduct elections/PII SP Drilon and SOH de Venecia
are the heads of Congress who is exclusively authorized to canvass the votes for Pres and VP, thus they have standing to
prevent usurpation of the Congress consti prerog)
issue is not a political question, political questions are concerned with issues dependent upon the wisdom, not legality of a
particular measure; present petition does not merely concern the wisdom of the assailed resolution but focuses on its
alleged disregard for applicable statutory and constitutional provisions.

cannot be made the basis for the proclamation of any winning candidate and therefore, it
cannot be therefore, be considered as preempting or usurping the exclusive
power of Congress to canvass the votes for President and Vice-President.
MAIN ISSUE/HOLDING/RATIO: W/N Resolution 6712 is void. Yes. COMELEC committed GAD in
issuing Reso 6712. Petition granted.
The assailed resolution usurps, under the guise of an unofficial tabulation of election results
based on a copy of the election returns, the sole and exclusive authority of Congress to
canvass the votes for the election of President and Vice-President. Article VII, Section 4 of
the Constitution provides in part:
The returns of every election for President and Vice-President duly certified by the board of
canvassers of each province or city, shall be transmitted to the Congress, directed to the
President of the Senate. Upon receipt of the certificates of canvass, the President of the
Senate shall, not later than thirty days after the day of the election, open all the certificates
in the presence of the Senate and the House of Representatives in joint public session, and
the Congress, upon determination of the authenticity and due execution thereof in the
manner provided by law, canvass the votes
Such resolution directly infringes the authority of Congress, considering that Section 4 thereof
allows the use of the third copy of the Election Returns (ERs) for the positions of President, VicePresident, Senators and Members of the House of Representatives, intended for the COMELEC, as
basis for the encoding and transmission of advanced precinct results, and in the process, canvass
the votes for the President and Vice-President, ahead of the canvassing of the same votes by
Congress.
The contention of the COMELEC that its tabulation of votes is not prohibited by the Constitution and
RA. 8436 as such tabulation is unofficial, is puerile and totally unacceptable. If the COMELEC is
proscribed from conducting an official canvass of the votes cast for the President and VicePresident, the COMELEC is, with more reason, prohibited from making an unofficial canvass of said
votes.

Other discussions:
o

W/N Resolution violated Art. VI, Sec. 29 (par. 1) of the 1987 Constitution that no money shall be
paid out of the treasury except in pursuance of an appropriation made by law. Yes
The implementation of the assailed resolution would entail, in due course, the hiring of additional
manpower, technical services and acquisition of equipment, including computers and software,
among others. According to the COMELEC, it needed P55M to operationalize the project, including
the encoding process. Hence, it would necessarily involve the disbursement of public funds for
which there must be the corresponding appropriation.
Court reviewed RA. 9206, the GAA, and found no appropriation for the project of the
COMELEC for electronic transmission of unofficial election results. What is appropriated
therein is the amount of P225M of the capital outlay for the modernization of the electoral system.
Neither can the money needed for the project be taken from the COMELECs savings, if any, because
it would be violative of Article VI, Section 25 (5) of the 1987 Constitution. The power to augment
from savings lies dormant until authorized by law.[48] In this case, no law has, thus, far been
enacted authorizing the respondent COMELEC to transfer savings from another item in its
appropriation, if there are any, to fund the assailed resolution. No less than the Secretary of the
Senate certified that there is no law appropriating any amount for an unofficial count and tabulation
of the votes cast during the 2004 elections.

W/N Reso 6712 disregarded RA. 8173, 8436 and 7166 which authorize only the citizens arm to use
an election return for an unofficial count. Yes.

The assailed resolution disregards existing laws which authorize solely the duly-accredited citizens
arm to conduct the unofficial counting of votes. Under Section 27 of RA. 7166, as amended by RA
8173, and reiterated in Section 18 of RA 8436, the accredited citizens arm - in this case, NAMFREL is exclusively authorized to use a copy of the election returns in the conduct of an unofficial
counting of the votes, whether for the national or the local elections. No other entity, including the
respondent COMELEC itself, is authorized to use a copy of the election returns for purposes of
conducting an unofficial count. In addition, the second or third copy of the election returns, while
required to be delivered to the COMELEC under the aforementioned laws, are not intended for
undertaking an unofficial count. The aforesaid COMELEC copies are archived and unsealed only
when needed by the respondent COMELEC to verify election results in connection with resolving
election disputes that may be imminent. However, in contravention of the law, the assailed
Resolution authorizes the so-called Reception Officers (RO), to open the second or third copy
intended for the respondent COMELEC as basis for the encoding and transmission of advanced
unofficial precinct results. This not only violates the exclusive prerogative of NAMFREL to conduct
an unofficial count, but also taints the integrity of the envelopes containing the election returns, as
well as the returns themselves, by creating a gap in its chain of custody from the Board of Election
Inspectors to the COMELEC.
o

W/N there was violation of Sec. 52(i) of the Omnibus Election Code, requiring not less than thirty
(30) days notice of the use of new technological and electronic devices. Yes
Resolution No. 6712 was made effective immediately a day after its issuance, the respondent
COMELEC could not have possibly complied with the thirty-day notice requirement provided under
Section 52(i) of the Omnibus Election Code. The respondent COMELEC has, likewise, failed to submit
any resolution or document to prove that it had notified all political parties of the intended adoption
of Reso 6712, in compliance with Section 52(i) of the Omnibus Election Code

W/N Reso 6712 has constitutional or statutory basis. No.

That respondent COMELEC is the sole body tasked to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall[56]
and to ensure free, orderly, honest, peaceful and credible elections[57] is beyond cavil. That it
possesses the power to promulgate rules and regulations in the performance of its constitutional
duties is, likewise, undisputed. However, the duties of the COMELEC under the Constitution, Rep.
Act No. 7166, and other election laws are carried out, at all times, in its official capacity. There is no
constitutional and statutory basis for the respondent COMELEC to undertake a separate and an
unofficial tabulation of results, whether manually or electronically. Indeed, by conducting such
unofficial tabulation of the results of the election, the COMELEC descends to the level of a private
organization, spending public funds for the purpose. Besides, it is absurd for the COMELEC to
conduct two kinds of electoral counts a slow but official count, and an alleged quicker but unofficial
count, the results of each may substantially differ.
Clearly, the assailed resolution is an implementation of Phase III of the modernization program of
the COMELEC under Rep. Act No. 8436. Section 2 of the assailed resolution expressly refers to the
Phase III-Modernization Project of the COMELEC. Since this Court has already scrapped the contract
for Phase II of the AES, the COMELEC cannot as yet implement the Phase III of the program.
The AES provided in Rep. Act No. 8436 constitutes the entire process of voting, counting of votes
and canvassing/consolidation of results of the national and local elections corresponding to the
Phase I, Phase II and Phase III of the AES of the COMELEC. The three phases cannot be effected
independently of each other.

W/N the implementation of Resolution No. 6712 would cause trending, confusion and chaos. Yes.
There is a great possibility that the unofficial results reflected in the electronic transmission under
the supervision and control of the COMELEC would significantly vary from the results reflected in
the COMELEC official count.

As the results are transposed from one document to another, and as each document undergoes the
procedure of canvassing by various Boards of Canvassers, election returns and certificates of
canvass are objected to and at times excluded and/or deferred and not tallied, long after the preproclamation controversies are resolved by the canvass boards and the COMELEC.
On the other hand, under the assailed resolution, the precinct results of each city and municipality
received by the (Electronic Transmission Centers (ETCs) would be immediately electronically
transmitted to the National Consolidation Center (NCC). Such data, which have not undergone the
process of canvassing, would expectedly be dissimilar to the data on which the official count would
be based.
Resultantly, the official and unofficial canvass, both to be administered by the respondent
COMELEC, would most likely not tally. With a second unofficial count to be conducted by the official
election body, the respondent COMELEC, in addition to its official count, allegations of trending,
would most certainly be aggravated. As a consequence, the electoral process would be
undermined.
The only intimated utility claimed by the COMELEC for the unofficial electronic transmission count is
to avert the so-called dagdag-bawas. The Court cannot accept as tenable the COMELECs profession
that from the results of the unofficial count, it would be able to validate the credibility of the official
tabulation. To sanction this process would in effect allow the COMELEC to preempt or prejudge an
election question or dispute which has not been formally brought before it for quasi-judicial
cognizance and resolutions.
Also, Court doubts that the problem of dagdag-bawas could be addressed by the implementation of
the assailed resolution, such problem arises because of the element of human intervention. It is to
be noted that the electronic transmission of results is not entirely devoid of human intervention.
The crucial stage of encoding the precinct results in the computers prior to the transmission
requires human intervention.