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ENBANC
ELISEO MIJARES RIO, JR., G.R. No. 273136
AUGUSTO CADELINA
LAGMAN, and FRANKLIN Present:·
FAYLOGA YSAAC,
Petitioners, GESMUNDO, C.J.,
LEONEN,
CAGUIOA,
HERNANDO,
LAZARO-JAVIER,
-versus- INTING,
ZALAMEDA,
LOPEZ,M.,
GAERLAN,
ROSARIO,
COMMISSION ON LOPEZ, J.,
ELECTIONS EN BANC, DIMAAMPAO,
Respondent. MARQUEZ,
KHO, JR., and
SINGH,JJ.
Promulgated:
x-------------------------------------------------~'=""-~-------x
DECISION
MARQUEZ, J.:
The Commission on Elections (COMELEC) may not be compelled by
mandamus to exercise its discretion in a certain way, i.e., to grant or deny the
opening and recounting of ballot boxes. However, it has a clear legal duty to
expeditiously resolve motions pending before it, following its own rules of
procedure.
Decision 2 G.R. No. 273136
Before the Court is a Petition for Mandamus 1 under Rule 65 of the
Rules of Court filed by petitioners Eliseo Mijares Rio, l-,
Augusto Cadelina
Lagman, and Franklin Fayloga Ysaac (Rio, Jr. et al.) praying that the Court
issue a writ ofmandamus to compel respondent COMELEC to implement its
November 29, 2023 Resolution2 which stated that it will "recount the ballots
to settle once and for all the substantive issues raised by petitioners, as prayed
for in petitioners' Motion dated· January 19, 2024 and Reiterative Motion
dated February 12, 2024 in EM Case No. [2]3-003." 3
The present controversy stemmed from the same factual background as
Smartmatic TIM Corporation and Smartmatic Philippines, Inc. v.
Commission on Elections En Banc. 4 In 2023, Rio, Jr. et al. and Leonardo
Olivera Odofi.o filed a Petition,5 Supplemental Petition,6 and Second
Supplemental Petition7 before the COMELEC En Banc. Among other reliefs,
Rio, Jr. et al. prayed that "[t]he qualifications of [Smartmatic Philippines, Inc.
(Smartmatic)] be reviewed by the [Bids and Awards Committee (BAC)] in
view of the serious and material irregularities in the transmission and
reception of election results in the system which Smartmatic developed and
provided for the [May 9, 2022] Elections," 8 and that the COMELEC En Banc
order the BAC to "disqualify or declare ineligible Smartmatic from
participating in the procurement for the 2025 Automated Election System" if
the "serious and grave irregularities" are not satisfactorily explained. 9
On August 10, 2023, the COMELEC En Banc directed its law
department to review and submit a recommendation on the petitions filed by
Rio, Jr. et al. 10 On August 31, 2023, the COMELEC Law Department
submitted its Compliance, opining that there is no legal basis to prohibit
Smartmatic from participating in the bidding process. 11
On October 5, 2023, the COMELEC En Banc set the case for hearing
on October 17, 2023. 12 It also required Smartmatic to comment on the
Petitions. 13
On November 29, 2023, the CO:MELEC En Banc ruled in favor of Rio,
Jr. et al. The dispositive portion of its Resolution reads:
1
Rollo, pp. 3-11.
2
Id at 114-130. The November 29, 2023 Resolution in EM Case No. 23-003 was signed by [Chairperson]
George Erwin M. Garcia and Commissioners Socorro B. Inting, Marlon S. Casquejo, Aimee P. Ferolino,
Rey E. Bulay, Ernesto Ferdinand P. Maceda, Jr., and Nelson J. Celis of the Commission on Elections En
Banc. Commissioner Aimee P. Ferolino filed a Separate Opinion. See rollo, pp. 131-133.
3
Id. at 9.
4
G.R. No. 270564, Apri!' 16, 2024 [Per J. Marquez, En Banc].
5
Rollo, pp. 12-22.
6
Id. at 55-61.
7
Id. at 67-74.
8
Id. at 20.
9
Id.
10
Id.at117.
11
Id.atll8.
12
Id. at 120.
13 Id.
Decision 3 G.R. No. 273136
WHEREFORE, premises considered, the Commission (En Banc)
hereby RESOLVED to GRANT the Petition. SMARTMATIC
PIDLIPPINES, INC. is DISQUALIFIED AND DISALLOWED from
participating in any public bidding process for elections, in the exercise of
its administrative power to decide all matters affecting election [sic] and in
pursuit of its constitutional mandate.
FURTHER, the Commission (En Banc) hereby RESOLVES that
in the exercise of its administrative power, it may, upon Petitioner's
instance, order the conduct of the recount of ballots in areas in every region
in the country, the procedure and extent of which to be determined, and at
no cost to Petitioner.
SO ORDERED. 14 (Emphasis in the original)
In Smartmatic TIM Corporation and Smartmatic Philippines, Inc. v.
Commission on Elections En Banc, 15 the Court granted the petition filed by
Smartmatic and Smartmatic TIM Corporation and held that the COMELEC
En Banc committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it disqualified and _disallowed Smartmatic from
participating in the public bidding process for the elections. 16
On January 19, 2024, Rio, Jr. et al. filed aMotion 17 seeking the opening
and recount of at least 30 sealed ballot boxes in the Municipality of Sto.
Tomas, Province of Batangas, which are the subject of a pending election
protest, pursuant to the COMELEC's November 29, 2023 Resolution. 18 Rio,
Jr. et al. also recommended that the procedure for the manual ballot counting
under Article XVIII, Section 206 of the Omnibus Election Code 19 be generally
followed in the recount, subject to the following:
14
Id. at 129-130.
15 G.R. No. 270564, April 16, 2024 [Per J. Marquez, En Banc].
16 Id at 20-25. This pinpoint citation refers to the copy of the Decision uploaded to the Supreme Court
website.
17
Rollo, pp. 227-230.
18 Id. at 228.
19
The cited provision reads:
SECTION 206. Counting to be public and without interruption. -As soon as the voting is
finished, the board of election inspectors shall publicly count in the polling place the votes
cast and ascertain the results. The Board may rearrange the physical set up of the polling
place for the counting or perform any other activity with respect to the transition from
voting counting. However, it may do so only in the presence of the watchers and within
close view of the public. At all times, the ballot boxes and all election documents and
paraphernalia shall be within close view of the watchers and the public.
The board of election inspectors shall not adjourn or postpone or delay the count until it
has been fully completed, unless otherwise ordered by the Commission.
The Commission, in the interest of free, orderly, and honest elections, may authorize the
board of election inspectors to count the votes and to accomplish the election returns and
other forms prescribed under this Code in any other place within a public building in the
same municipality or city on account of imminent danger of widespread violence or similar
causes of comparable magnitude: Provided, That the transfer shall have been
recommended in writing by the board of election inspectors by unanimous vote and
endorsed in writing by the majority of watchers present: Provided, further, That the said
public building shall not be located within the perimeter of or inside a military or police
Decision 4 G.R. No. 273136
4.1. Only one ballot box shall be opened at a time.
4.2. The manual counting of the ballots shall be conducted by an
Electoral Board, or a similar body, to be appointed by the
[COMELEC], in the presence of watchers appointed by the parties.
4.3. The manual counting of votes shall include all candidates for
national and local positions.
4.4. The manual counting of ballots shall be held in a venue to be
designated by the [COMELEC], preferably at the same location
where the ballot boxes are being stored.
4.5. The manual counting of ballots shall start on [January 25, 2024], or
as soon thereafter as the [COMELEC] can make the necessary
preparations, and shall continue from day to day until the ballots in
all the [30] designated ballot boxes have been counted, unless the
manual counting is sooner terminated by the parties.
4.6. To ensure that the ballots to be counted are the original ballots that
were used in the 2022 elections for the particular precinct, the ballots
should first be inserted into the [Vote Counting Machine (VCM)] to
see if they would pass through the machine before said ballots are
counted.
4.7 The recount of the ballots shall include a forensic analysis of the
contents and thermal age of the Voter Verifiable Paper Audit Trail
(VVPAT) which is the "best source of raw data for votes" according
to the Supreme Court's ruling in [Bagumbayan Volunteers for a New
Philippines v. COMELECJ. 20
On February 12, 2024, Rio, Jr. et al. filed a Reiterative Motion21 stating
that more than two weeks after they filed the Motion, they had yet to receive
any notice of any action on the part of the COMELEC. 22 Rio, Jr. et al. also
repeated their prayer for a recount as detailed in their Motion. 23
On April 30, 2024, Rio, Jr. et al. filed the instant Petition before the
Court, alleging that the COMELEC did not act on their Motion and Reiterative
Motion and praying that the Court issue a writ of mandamus to compel the
COMELEC to fulfill its ministerial duty to implement its November 29, 2023
Resolution.24 According to Rio, Jr. et al., "all the requisites for the issuance of
a writ of [mandamus] are present in the instant case," and:
camp, reservation, headquarters, detachment or field office nor within the premises of a
prison or detention bureau or any law enforcement or investigation agency.
Any violation of this section, or its pertinent portion, shall constitute an election offense
and shall be penalized in accordance with Batas Pambansa Blg. 881.
20
Rollo, pp. 228-229; 782 Phil. 1306 (2016) [Per J. Leonen, En Banc].
21
Id. at 258-263.
22
Id. at 259.
23
Id. at 259-260.
24
Id. at 7-8.
Decision 5 G.R. No. 273136
18. The importance of reopening the ballot boxes and recounting the
ballots cannot be overemphasized since these proceedings would have far
reaching consequences on the country's political and electoral system. Even
respondent [COMELEC] itself recognized that "the best evidence in an
election are always the ballots."
19. Should it turn out during the recount of the ballots that the results
of the physical count differ from the results printed in the election returns
generated by the Vote Counting Machines that were electronically
transmitted and canvassed, the reliability and integrity of the results of the
entire 2022 National and Local Elections (NLE) would be put into serious
question. In the realm ofinformation technology, when it is established that
one part of an integrated system is tainted with errors, the result generated
by the entire system become highly questionable. 25
On July 16, 2024, Rio, Jr. et al. filed a Motion for Leave to File and
Admit Attached Supplemental Petition26 dated July 12, 2024 and the
Supplemental Petition27 also dated July 12, 2024. In their Supplemental
Petition, Rio, Jr. et al. state that the COMELEC En Banc issued an Order28
dated July 3, 2024, denyingtheMotiondatedJanuary 19, 2024 and Reiterative
Motion dated February 12, 2024 in EM Case No. 23-003. 29 Rio, Jr. et al.
maintain its original prayer for this Courtto,issue a writ of mandamus and add
~hat the "Supplemental Petition and the original Petition be treated as and
converted into a Petition for [Certiorari] and respondent [COMELEC]'s
Order dated [July 3, 2024] in E.M. Case No[.] 23-003 be reversed and set
aside for being issued with grave abuse of discretion" in the event that"the
Court should consider the Petition for Mandamus to have been rendered moot
and academic due to the issuance ofCOMELEC Order dated July 3, 2024.30
We first resolve the Petition for Mandamus.
A writ of mandamus has the following requisites: (1) the plaintiff has a
clear legal right to the act demanded; (2) it must be the duty of the defendant
to perform the act because it is-mandated by law; (3) the defendant unlawfully
neglects the performance of the duty enjoined by law; (4) the act to be
performed is ministerial, not discretionary; and (5) there is no appeal or any
other plain, speedy, and adequate remedy in the ordinary course oflaw.31
In National Press Club ofthe Philippines v. Commission onElections,32
the Court described mandamus and defined "ministerial duty" as follows:
25
Id. at 8.
26
Id. at 270-271.
27
Id. at 272-278.
28
Id. at 279-283. The July 3, 2024 Order in EM Case No. 23-003 was signed by [Chairperson] George
Erwin M. Garcia and Commissioners Socorro B. Inting, Marlon S. Casquejo, Aimee P. Ferolino, Rey E.
Bulay, Ernesto Ferdinand P. Maceda, Jr., and Nelson J. Celis of the Commission on Elections En Banc.
29 Id. at 282.
30
Id. at 275-276.
31 Province of Maguindanao Del Norte v. Bureau of Local Government Finance, G.R. No. 265373,
November 13, 2023 [Per J. Lazaro-Javier, Second Division] at 12. This pinpoint citation refers to the
copy of the Decision uploaded to the Supreme Court website.
32 G.R. No. 259354, June 13, 2023 [Per J. Rosario, En Banc].
Decision 6 G.R. No. 273136
Mandamus is an extraordinary writ commanding a person, tribunal,
corporation, board, or officer to do an act required to be done, as when
they/it unlawfully neglects the performance of an act which the law
specifically enjoins as a duty, and there is no other plain, speedy, and
adequate remedy in the ordinary course of law. The duty is ministerial only
when its discharge requires neither the exercise of official discretion nor
judgment. Mandamus can be awarded only when the petitioner's legal right
to the performance of the particular act, which is sought to be compelled,
is clear and complete. 33 (Emphasis supplied, citations omitted)
In Subrabas v. Abas,34 the Court explained the distinction between
ministerial and discretionary acts, thus:
An act is considered ministerial if "an officer or tribunal performs in the
context of a given set of facts, in a prescribed manner and without regard
for the exercise of his or its own judgment, upon the propriety or
impropriety of the act done." In contrast, an act is considered discretionary
"[i]f the law imposes a duty upon a public officer, and gives him [or herJ
the right to decide how or when the duty shall be performed " The writ will
lie if the tribunal, corporation, board, officer[,] or person unlawfully
neglects the performance of an act which the law enjoins as a duty resulting
from an office, trust[,] or station. The writ ofmandamus, however, will not
issue to compel an official to do anything which is not his [or her] duty to
do, or to give to the applicant anything to which he [or she] is not entitled
by law. 35 (Emphasis supplied, citations omitted)
The Court has also held that only specific legal rights are enforceable
by mandamus, which requires that the right sought to be enforced must
be certain and clear, and the writ will not issue in cases where the right
is doubtful. 36
In the case at bar, Rio, Jr. et al. simply generalize that "[a]ll the
requisites for the issuance of a writ of mandamus are present in the instant
case" 37 yet they fail to identify, much less substantiate, these requisites. Rio,
Jr. et al. do not point to any law specifically requiring the conduct of a recount
of the physical ballots in the 2022 National and Local Elections, much less
prescribing the manner of the- recount such that no discretion is left to the
CO:MELEC. Moreover, the dispositive .portion of the COMELEC's
November 29, 2023 Resolution expressly states that the COMELEC "may,
upon Petitioner's instance, order the conduct of the recount of ballots in areas
in every region in the country," 38 the ''procedure and extent of which [are] to
be determined[./' 39 Thus, contrary to Rio, Jr. et al.' s protestations, the present
controversy does not involve a ministerial act on the part of the COMELEC
33
Id. at 5-6. This pinpoint citation refers to the copy of the Decision uploaded to the Supreme Court
website.
34
G.R. No. 253103, October 6, 2020 [Unsigned Resolution, En Banc].
35 Id.
36
Province of Maguindanao Del Norte v. Bureau of Local Government Finance, G.R. No. 265373,
November 13, 2023 [Per J. Lazaro-Javier, Second Division] at 12. This pinpoint citation refers to the
copy of the Decision uploaded to the Supreme Court website.
37
Rollo, p. 8.
38
Id. at 129. Emphasis supplied.
39 Id.
Decision 7 G.R. No. 273136
as the recount of physical ballots prayed for by Rio, Jr. et al. requires the
exercise of the COMELEC's discretion and judgment.
Rio, Jr. et al. having failed to establish any ministerial duty on the part
of the COMELEC and any clear, complete, and specific legal right to a
recount as prayed for in their Motion and Reiterative Motion before the
COMELEC, their prayer for a writ of mandamus lacks merit.
It bears stressing that the COMELEC En Banc already acted on the
Motion and Reiterative Motion on July 3, 2024. Nonetheless, the Court shares
the view of Associate Justice Amy C. Lazaro-Javier that the COMELEC was
guilty of official inaction when it decided the said Motions way beyond the
period prescribed by its own rule that "any case or matter submitted to or heard
by the Commission en bane shall be decided within [30] days from the date it
is deemed submitted for decision or resolution."4 From the filing of the °
Motion and Reiterative Motion on January 19, 2024, and February 12, 2024,
it took the COMELEC 166 and 142 days, respectively, to resolve the Motions.
Even the COMELEC itself recognized in its Order41 dated July 3, 2024
that its own rules prescribe a period within which to resolve pending motions
before it:
As defined. in Section _1, :Rule Ll lJ of the COMELEC Rules of
Procedure, a motion is an application for ar1 order not included in a decision
of the Commission or a Division. Thus,· as applications, motions are
addressed to sound discretion of the Com:rrii'ssidn, which discretion will not
be interfered with unless it has been abused.
It is important to note that the COMELEC Rules of Procedure did
prescribe a period within which the Commission may resolve a motion.
Hence, logic dictates that the same is also addressed to sound discretion of
the Commission.42 (Emphasis supplied)
In Ampatuan Jr. v. De Lima,43 the Court explained:
Mandamus shall issue when any tribunal, corporation, board, officer
or person unlawfully neglects the performance of an act that the law
specifically enjoins as a duty resulting from an office, trust, or station. It is
proper when the act against which it is directed is one addressed to the
4
° COMELEC RULES OF PROCEDURE (1993), Rule 18, secs. 7 and 9 provide:
Section 7. Period to Decide by the Commission En Banc. -Any case or matter submitted to or heard by
the Commission en bane shall be decided within [30] days from the date it is deemed submitted for
decision or resolution, except a motion for reconsideration of a decision or resolution of a Division in
Special Actions and Special Cases which shall be1decided within [15] days from the date the case or
matter is deemed submitted for decision, unless otherwise provided by law.
Section 9. When Deemed Submittedfor Decision. - (a) A case or matter is deemed submitted for decision
or resolution upon the filing of the last pleading, brief or memorandum as required in these Rules or by
the Commission en bane or by a Division. (b) Ho\vever, if the hearing and reception of evidence are
delegated to any of its officials, the case or matter shall be deemed submitted for decision as of the date
of the receipt of the findings, report and recommendation of the official so delegated.
41 Id. at 279-283.
42
Id. at 281-282.
43
708 Phil. 153 (2013) [Per J. Bersamin, First Division].
6
Decision 8 G.R. No. 273136
discretion of the tribunal or officer. In matters involving the exercise of
judgment and discretion, mandamus may only be resorted to in order to
compel respondent tribunal, corporation, board, officer or person to take
action, but it cannot be used to direct the manner or the particular way
discretion is to be exercised, or to compel the retraction or reversal of an
action already taken in the exercise of judgment or discretion. 44 (Emphasis
supplied)
Thus, the COMELEC is reminded that: (1) it has a clear legal duty to
expeditiously resolve motions pending before it, following the COMELEC
rules of procedure; and (2) should it fail to do so, it may be compelled by
mandamus to resolve such motions, but it may not be compelled to exercise
its discretion in a certain way, i.e., to grant or deny the opening and recounting
of ballot boxes.
Just the same, as adverted to, the instant Petition for Mandamus lacks
merit since Rio, Jr. et al. failed to show that the COMELEC had the ministerial
duty or that Rio, Jr. et al. had a clear legal right to a recount. Accordingly, the
Supplemental Petition based on the Petition for Mandamus ceases to have a
leg to stand on.
In any case, the Supplemental Petition, which is prayed to be treated as
a Petition for Certiorari, likewise fails, there being no grave abuse of
discretion on the part of the COMELEC when it issued its Order dated July 3,
2024 holding that:
After a judicious review, the Commission (En Banc) takes judicial
notice of the Petition and finds that the Petitioners abandoned their prayer
in the Motion and Reiterative Motion.
Instead of allowing the Commission (En Banc) to exercise its sound
discretion on the Motion and the Reiterative Motion, the Petitioners merely
relied on its own "inescapable conclusion that the Commission En Banc is
no longer interested in complying with its voluntary undertaking in
Resolution dated [November 29, 2023] to open and recount ballot boxes,"
and presumed "that the reason[ ...] is that the opening of the ballot boxes
and recount of the ballots would finally confirm the electoral fraud and
irregularities."
Having determined that "the transmitted results do not reflect the
true will of the electorate resulting in a failure to elect," the Petitioners opted
to apply for the remedy of a petition for declaration of failure of elections.
Thus, it is clear from the language thereof that it has abandoned its prayers
in the Motion and Reiterative Motion. 45 (Emphasis in the original)
44
Id. at 167-168.
45
Rollo, pp. 281-282.
Decision 9 G.R. No. 273136
ACCORDINGLY, the Petition for Mandamus is DISMISSED. The
Motion for Leave to File and Admit Attached Supplemental Petition dated
July 12, 2024 is DENIED, and the attached SupplementalPetition also dated
July 12, 2024 is NOTED WITHOUT ACTION.
SO ORDERED.
~~
Jo0!s P.MARQUEZ
~ : ! a t e Justice
Decision G.R. No. 273136
WE CONCUR:
Associate Justice
~-HE.~O AMY C ~ ~ AVIER
Associate Justic Associate Justice
HE EDA
::; sm ~
SAMUEi:GAERLAN
Associate Justice
JHOSEm-OPEZ
Associate Justice
~o~
Associate Justic; ---- ~
Associate Justice
Decision 11 G.R. No. 273136
CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.
Ftfu
ALE ~-~ESMUNDO
Justice
