ROQUE VS COMELEC

Facts:
This case is a motion for reconsideration filed by the petitioners of the September 10, 2009 ruling of the
Supreme Court, which denied the petition of H. Harry L. Roque, Jr., et al. for certiorari, prohibition, and mandamus to
nullify the contract-award of the 2010 Election Automation Project to the joint venture of Total Information
Management Corporation (TIM) and Smartmatic International Corporation (Smartmatic).
In this MR, petitioners Roque, et al. are again before the Supreme Court asking that the contract award be declared
null and void on the stated ground that it was made in violation of the Constitution, statutes, and jurisprudence.
Intervening petitioner also interposed a similar motion, but only to pray that the Board of Election Inspectors be
ordered to manually count the ballots after the printing and electronic transmission of the election returns.
Petitioners Roque, et al., as movants herein, seek a reconsideration of the September 10, 2009 Decision on the
following issues or grounds:
1. The Comelecs public pronouncements show that there is a "high probability" that there will be failure of automated
elections;
2. Comelec abdicated its constitutional functions in favor of Smartmatic;
3. There is no legal framework to guide the Comelec in appreciating automated ballots in case the PCOS machines
fail;
4. Respondents cannot comply with the requirements of RA 8436 for a source code review;
5. Certifications submitted by private respondents as to the successful use of the machines in elections abroad do not
fulfill the requirement of Sec. 12 of RA 8436;
6. Private respondents will not be able to provide telecommunications facilities that will assure 100% communications
coverage at all times during the conduct of the 2010 elections; and
7. Subcontracting the manufacture of PCOS machines to Quisdi violates the Comelecs bidding rules.
Note: (This digest would only deal with the procedural aspect of the MR. Only those issues or
grounds wherein the Court made a ruling re: procedure would be discussed here.)
Issue: Is the motion for reconsideration meritorious?

Ruling:
No. Upon taking a second hard look into the issues in the case at bar and the arguments earnestly
pressed in the instant motions, the Court cannot grant the desired reconsideration.
Petitioners threshold argument delves on possibilities, on matters that may or may not occur. The conjectural and
speculative nature of the first issue raised is reflected in the very manner of its formulation and by statements, such
as "the public pronouncements of public respondent COMELEC x x x clearly show that there is a high probability that
there will be automated failure of elections"; "there is a high probability that the use of PCOS machines in the May
2010 elections will result in failure of elections"; "the unaddressed logistical nightmaresand the lack of contingency
plans that should have been crafted as a result of a pilot testmake an automated failure of elections very probable";
and "COMELEC committed grave abuse of discretion when it signed x x x the contract for full automation x x x
despite the likelihood of a failure of elections." Speculations and conjectures are not equivalent to proof; they have
little, if any, probative value and, surely, cannot be the basis of a sound judgment.
Petitioners, to support their speculative venture vis--vis the possibility of Comelec going manual, have attributed
certain statements to respondent Comelec Chairman Melo, citing for the purpose a news item on Inquirer.net, posted
September 16, 2009.
Reacting to the attribution, however, respondents TIM and Smartmatic, in their comment, described the Melo
pronouncements as made in the context of Comelecs contingency plan. Petitioners, however, the same respondents
added, put a misleading spin to the Melo pronouncements by reproducing part of the news item, but omitting to make
reference to his succeeding statements to arrive at a clearer and true picture.
Private respondents observation is well-taken. Indeed, it is easy to selectively cite portions of what has been said,
sometimes out of their proper context, in order to assert a misleading conclusion. The effect can be dangerous.
Improper meaning may be deliberately attached to innocent views or even occasional crude comments by the simple
expediency of lifting them out of context from any publication.
Petitioners posture anent the third issue, i.e, there no is legal framework to guide Comelec in the appreciation of
automated ballots or to govern manual count should PCOS machines fail, cannot be accorded cogency. First, it
glosses over the continuity and back-up plans that would be implemented in case the PCOS machines falter during
the 2010 elections. The overall fallback strategy and options to address even the worst-case scenariothe wholesale
breakdown of the 80,000 needed machines nationwide and of the 2,000 reserved unitshave been discussed in
some detail in the Decision subject of this recourse. The Court need not belabor them again.

While a motion for reconsideration may tend to dwell on issues already resolved in the decision sought to be
reconsideredand this should not be an obstacle for a reconsiderationthe hard reality is that petitioners have failed
to raise matters substantially plausible or compellingly persuasive to warrant the desired course of action.
Significantly, petitioners, in support of their position on the lack-of-legal-framework issue, invoke the opinion of
Associate, later Chief, Justice Artemio Panganiban in Loong v. Comelec, where he made the following observations:
"Resort to manual appreciation of the ballots is precluded by the basic features of the automated election system,"
and "the rules laid down in the Omnibus Election Code (OEC) for the appreciation and counting of ballots cast in a
manual election x x x are inappropriate, if not downright useless, to the proper appreciation and reading of the ballots
used in the automated system." Without delving on its wisdom and validity, the view of Justice Panganiban thus cited
came by way of a dissenting opinion. As such, it is without binding effect, a dissenting opinion being a mere
expression of the individual view of a member of the Court or other collegial adjudicating body, while disagreeing with
the conclusion held by the majority.
And going to another but recycled issue, petitioners would have the Court invalidate the automation contract on the
ground that the certifications submitted by Smartmatic during the bidding, showing that the PCOS technology has
been used in elections abroad, do not comply with Sec. 1222 of RA 8436. Presently, petitioners assert that the
system certified as having been used in New York was the Dominion Image Cast, a ballot marking device.
Petitioners have obviously inserted, at this stage of the case, an entirely new factual dimension to their cause. This
we cannot allow for compelling reasons. For starters, the Court cannot plausibly validate this factual assertion of
petitioners. As it is, private respondents have even questioned the reliability of the website24 whence petitioners base
their assertion, albeit the former, citing the same website, state that the Image Cast Precinct tabulation device refers
to the Dominions PCOS machines.
Moreover, as a matter of sound established practice, points of law, theories, issues, and arguments not raised in the
original proceedings cannot be brought out on review. Basic considerations of fair play impel this rule. The
imperatives of orderly, if not speedy, justice frown on a piecemeal presentation of evidence and on the practice of
parties of going to trial haphazardly.
Moving still to another issue, petitioners claim that "there are very strong indications that Private Respondents will not
be able to provide for telecommunication facilities for areas without these facilities." This argument, being again
highly speculative, is without evidentiary value and hardly provides a ground for the Court to nullify the automation
contract. Surely, a possible breach of a contractual stipulation is not a legal reason to prematurely rescind, much less
annul, the contract.
Finally, petitioners argue that, based on news reports,28 the TIM-Smartmatic joint venture has entered into a new
contract with Quisdi, a Shanghai-based company, to manufacture on its behalf the needed PCOS machines to fully
automate the 2010 elections.29 This arrangement, petitioners aver, violates the bid rules proscribing sub-contracting
of significant components of the automation project.
The argument is untenable, based as it is again on news reports. Surely, petitioners cannot expect the Court to act on
unverified reports foisted on it.