EN BANC

[G.R. No. 159139. June 15, 2005.]

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.

RESOLUTION

PANGANIBAN, J : p

Our Decision 1 in the present case voided the Contract entered into by
the Commission on Elections (Comelec) for the supply of automated
counting machines (ACMs) because of "clear violation of law and
jurisprudence" and "reckless disregard of [Comelec's] own bidding rules and
procedure." Moreover, "Comelec awarded this billion-dollar undertaking with
inexplicable haste, without adequately checking and observing mandatory
financial, technical and legal requirements. . . . 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." As a result, the ACMs
illegally procured and improvidently paid for by Comelec were not used
during the 2004 national elections.
In its present Motion, the poll body expressly admits that the Decision
"has become final and executory," and that "COMELEC and MPC-MPEI are
under obligation to make mutual restitution. Otherwise stated, this
admission implies that the ACMs are to be returned to MPC-MPEI, and that
the sum of over one billion pesos illegally paid for them be refunded to the
public purse. 2 In short, ownership of the ACMs never left MPC-MPEI and the
money paid for them still belongs, and must be returned, to the government.
jurcd2005

Consequently, the ACMs, which "admittedly failed to pass legally

mandated technical requirements" cannot be used during the forthcoming
elections in the Autonomous Region for Muslim Mindanao (ARMM). Apart
from formidable legal, jurisprudential, technical and financial obstacles, the
use of the machines would expose the ARMM elections to the same electoral
pitfalls and frauds pointed out in our Decision. If the ACMs were not good
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 enough for the 2004 national elections, why should they be good enough
now for the 2005 ARMM elections, considering that nothing has been done
by Comelec to correct the legal, jurisprudential and technical flaws
underscored in our final and executory Decision?
The Motion
Before us is the Commission on Election's "Most Respectful Motion for
Leave to Use the Automated Counting Machines in [the] Custody of the
Commission on Elections for use (sic) in the August 8, 2005 Elections in the
Autonomous Region for Muslim Mindanao (ARMM)," dated December 9,
2004. In its January 18, 2005 Resolution, the Court required the parties to
comment. After careful deliberation on all pleadings at hand, we now resolve
the Motion. AEIHCS

Background Information
At the outset, we stress that the Decision in the present case,
promulgated on January 13, 2004, has long attained finality. 3 In our
February 17, 2004 Resolution, we denied with finality Comelec's Motion for
Reconsideration dated January 28, 2004, as well as private respondents'
Omnibus Motion dated January 26, 2004. The Decision was recorded in the
Book of Entries of Judgments on March 30, 2004.
Recall that our Decision declared Comelec to have acted with grave
abuse of discretion when, by way of its Resolution No. 6074, it awarded the
Contract for the supply of automated counting machines (ACMs) to private
respondents. It did so, not only in clear violation of law and jurisprudence,
but also with inexplicable haste and reckless disregard of its own bidding
rules and procedures; particularly the mandatory financial, technical and
legal requirements. It further manifested such grave abuse of discretion
when it accepted the subject computer hardware and software even though,
at the time of the award, these had patently failed to pass eight critical
requirements designed to safeguard the integrity of the elections.
Consequently, this Court was constrained to exercise its constitutional duty
by voiding the assailed Resolution No. 6074 awarding the Contract to Mega
Pacific Consortium, as well as the subject Contract itself executed between
Comelec and Mega Pacific eSolutions, Inc.
Comelec was further ordered to refrain from implementing any other
contract or agreement it had entered into with regard to the said project. We
also declared that, as a necessary consequence of such nullity and illegality,
the purchase of the ACMs and the software, along with all payments made
for them, had no basis in law. Hence, the public funds spent must be
recovered from the payees and/or the persons who made the illegal
disbursements possible, without prejudice to possible criminal prosecutions
against them. 4
Likewise, our February 17, 2004 Resolution denying reconsideration
found movants to have raised the same procedural and substantive issues
already exhaustively discussed and definitively passed upon in our Decision.
In that Resolution, we emphasized (and we reiterate here) that the Decision
did not prohibit automation of the elections. Neither did the Court say that it
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 was opposed to such project (or the use of ACMs) as a general proposition.
We repeated our explanation that the reason for voiding the assailed
Resolution and the subject Contract was the grave abuse of discretion on the
part of Comelec; as well as its violations of law — specifically RA 9184, RA
8436, and RA 6955 as amended by RA 7718 — prevailing jurisprudence (the
latest of which was Agan v. Philippine International Air Terminals Co ., Inc. 5 ),
and the bidding rules and policies of the Commission itself.
Comelec's Claims
Notwithstanding our Decision and Resolution, the present Motion
claims, inter alia, that the ARMM elections are slated to be held on August 8,
2005, and are mandated by RA 9333 to be automated; that the government
has no available funds to finance the automation of those elections; that
considering its present fiscal difficulties, obtaining a special appropriation for
the purpose is unlikely; that, on the other hand, there are in Comelec's
custody at present 1,991 ACMs, which were previously delivered by private
respondents; that these machines would deteriorate and become obsolete if
they remain idle and unused; that they are now being stored in the Comelec
Maxilite Warehouse along UN Avenue, at storage expenses of P329,355.26 a
month, or P3,979,460.24 annually."
The Motion further alleges that "information technology experts," who
purportedly supervised all stages of the software development for the
creation of the final version to be used in the ACMs, have unanimously
confirmed that this undertaking is in line with the internationally accepted
standards (ISO/IEC 12207) for software life cycle processes, "with its quality
assurance that it would be fit for use in the elections . . .."
Comelec also points out that the process of "enhancement" of the
counting and canvassing software has to be commenced at least six (6)
months prior to the August 8, 2005 ARMM elections, in order to be ready by
then. It asserts that its Motion is (a) without prejudice to the ongoing Civil
Case No. 04-346 pending before the Regional Trial Court of Makati City,
Branch 59, entitled "Mega Pacific eSolutions, Inc. v. Republic of the
Philippines (represented by the Commission on Elections)," for the collection
of a purported P200 million balance due from Comelec under the voided
Contract; and (b) with a continuing respectful recognition of the finality and
legal effects of our aforesaid Decision. At bottom, Comelec prays that it be
granted leave to use the ACMs in its custody during the said ARMM elections.
Private Respondents' Contentions
Commenting on the present Motion, private respondents take the
position that, since the subject ACMs have already been delivered to, paid
for and used by Comelec, the Republic of the Philippines is now their owner,
without prejudice to Mega Pacific eSolutions, Inc.'s claim for damages in the
case pending before the RTC of Makati; and that, consequently, as far as
private respondents are concerned, the question of using the subject ACMs
for the ARMM elections is dependent solely on the discretion of the owner,
the Republic of the Philippines.
Petitioners' Comment
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 On the other hand, petitioners contend that Comelec is asking this
Court to render an advisory opinion, in contravention of the constitutional
provision 6 that explicitly states that the exercise of judicial power is
confined to (1) settling actual controversies involving rights that are legally
demandable and enforceable; and (2) determining whether there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of government.
Petitioners assert that there is no longer any live case or controversy to
speak of — an existing case or controversy that is appropriate or ripe for
determination, not merely conjectural or anticipatory; and that Comelec's
allegations in its Motion do not amount to an actual case or controversy that
would require this Court to render a decision or resolution in the legitimate
exercise of its judicial power. This lack of actual controversy is clearly seen
in the relief prayed for in the Motion: the grant of a leave to use the ACMs
during the ARMM elections. Obviously, Comelec merely seeks an advisory
opinion from this Court on whether its proposal to use the ACMs during the
said elections might be in violation of this Court's Decision dated January 13,
2004, and Resolution dated February 17, 2004. HIaTCc

Assuming arguendo that the present Motion might somehow be

justified by the government's fiscal difficulties, petitioners further argue that
permitting Comelec to use the ACMs would nevertheless allow it to do
indirectly what it was not permitted by this Court to do directly. They argue
that the instant Motion is merely a subterfuge on the poll body's part to
resurrect a lost case via a request for an advisory opinion.
The OSG's Comment
The Office of the Solicitor General (OSG) declares in its Comment that,
in compliance with this Court's directive for it to "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 [Comelec]
Resolution and Contract," it filed on behalf of the Republic on July 7, 2004,
an Answer with Counterclaim in Civil Case No. 04-346. The OSG prayed for
the return of all payments made by Comelec to Mega Pacific under the void
Contract, amounting to P1,048,828,407.
The OSG also manifests that it received a copy of the Complaint-
Affidavit dated September 15, 2004, filed with the Office of the Ombudsman
by the Bantay Katarungan Foundation and the Kilosbayan Foundation
against the Comelec commissioners who had awarded the Contract for the
ACMs; and the private individuals involved, including the incorporators and
officers of Mega Pacific eSolutions, Inc. This Complaint-Affidavit was for
violation of the Anti-Plunder Law (RA 7030), the Anti-Graft and Corrupt
Practices Act (RA 3019 as amended), and the Code of Conduct and Ethical
Standards for Public Officials and Employees (RA 6713).
The complainants alleged immense kickbacks and horrendous
overpricing involved in the purchase of the 1,991 ACMs. Based on the OSG's
available records, it appears that Comelec withdrew from Land Bank P1.03
billion, but actually paid Mega Pacific only P550.81 million. Furthermore,
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 commercial invoices and bank applications for documentary credits reveal
that each ACM cost only P276,650.00, but that Comelec agreed to pay Mega
Pacific P430,394.17 per unit — or a differential of P153,744.17 per unit or an
aggregate differential of P306.10 million. Moreover, Mega Pacific charged
P83.924 million for value-added taxes (VAT) and P81.024 million more for
customs duties and brokerage fees, when in fact — under the nullified
Contract — it was supposed to be exempt from VAT, customs duties and
brokerage fees. Lastly, Comelec agreed to peg the ACM price at the
exchange rate of P58 to $1, when the exchange rate was P55 to $1 at the
time of the bidding, resulting in additional losses for the government
amounting to about P30 million. HEDSIc

The OSG hews to the view that the automation of elections, if properly
carried out, is a desirable objective, but is mindful of the need for mutual
restitution by the parties as a result of the final Decision nullifying the
Contract for the ACMs. Nevertheless, in apparent response to Comelec's
clamor to use the ACMs in the ARMM elections, the OSG manifests that it has
no objection to the proposal to use the machines, provided however that (1)
Comelec should show with reasonable certainty that the hardware and
software of, the ACMs can be effectively used for the intended purpose; (2)
Mega Pacific should be made to return to the Republic at least a substantial
portion of the overprice they charged for the purchase of the ACMs; and (3)
the use of these machines, if authorized by this Court, should be without
prejudice to the prosecution of the related criminal cases pending before the
Office of the Ombudsman (OMB).
The OMB's Manifestation
For its part, the Office of the Ombudsman manifested that as a result
of the nullification of the Contract, various fact-finding investigations had
been conducted, and criminal and administrative charges filed before it
against the persons who appeared to be responsible for the anomalous
Contract; and that the various cases had been consolidated, and preliminary
investigation conducted in respect of the non-impeachable Comelec officials
and co-conspirators/private individuals. Furthermore, the OMB is in the
process of determining whether a verified impeachment complaint may be
filed against the poll body's impeachable officials concerned.EAcHCI

A Supplemental Complaint prepared and filed by the Field Investigation

Office of the Ombudsman reveals that the ACMs were overpriced by about
P162,000.00 per unit; that, additionally, Mega Pacific unduly benefited by
including VAT and import duties amounting to P194.60 million in its bid price
for the ACMs, despite Section 8 of RA 8436 exempting such equipment from
taxes and duties; that Comelec nonetheless awarded the Contract to Mega
Pacific at the same bid price of P1.249 billion, inclusive of VAT, import duties
and so on; and that the Commission allowed Mega Pacific to peg the ACM
price using an exchange rate of P58 to $1 instead of P53 to $1, which further
inflated Mega Pacific's windfall.
The foregoing notwithstanding, the OMB had allegedly prepared a
comment on the present Motion, stating its position on the issue of utilizing
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 the ACMs, but upon further reflection decided not to file that comment. It
came to the conclusion that ventilating its position on the matter might
engender certain impressions that it had already resolved factual and/or
legal issues closely intertwined with the elements of the offenses charged in
the criminal and administrative cases pending before it. "For one, utilizing
illegally procured goods or the intentional non-return thereof to the supplier
may have a bearing on the determination of evident bad faith or manifest
partiality, an essential element in any prosecution under the anti-graft law,
and may, at the same time, be constitutive of misconduct penalized under
relevant disciplinary laws."
Consequently, out of prudential considerations, the OMB prayed to be
excused from commenting on the merits of the present Motion, to avoid any
perception of prejudgment, bias or partiality on its part, in connection with
the criminal and administrative cases pending before it.
The Court's Ruling
Decision Subverted
by the Motion
There are several reasons why the present Motion must be denied.
First, although it professes utmost respect for the finality of our Decision of
January 13, 2004 — an inescapable and immutable fact from which spring
equally ineludible consequences — granting it would have the effect of
illegally reversing and subverting our final Decision. Plainly stated, our final
Decision bars the grant of the present Motion.
To stress, as a direct result of our January 13, 2004 Decision, the
Contract for the supply of the subject ACMs was voided, and the machines
were not used in the 2004 national elections. Furthermore, the OSG was
directed "to 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." Accordingly, in Civil Case No. 04-346, the
government counsel has prayed for mutual restitution; and for the "return of
all payments, amounting to P1,048,828,407.00 made by Comelec to Mega
Pacific under the void Contract."
In the meantime, Comelec has done nothing — at least, nothing has
been reported in the present Motion — to abide by and enforce our Decision.
Apparently, it has not done anything to rectify its violations of laws,
jurisprudence and its own bidding rules referred to in our judgment. Neither
has it reported any attempt to correct and observe the "mandatory financial,
technical and legal requirements" needed to computerize the elections.
Apparently, it has simply filed the present Motion asking permission to
do what it has precisely been prohibited from doing under our final and
executory Decision. If law and jurisprudence bar it from using the subject
ACMs during the last elections, why should it even propose to use these
machines in the forthcoming ARMM elections? True, these elections are
important. But they cannot be more important than the 2004 national
elections. Note that the factual premises and the laws involved in the
procurement and use of the ACMs have not changed. Indeed, Comelec has
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 not even alleged, much less proven, any supervening factual or legal
circumstances to justify its Motion.
Basic and primordial is the rule that when a final judgment becomes
executory, it thereby becomes immutable and unalterable. In other words,
such a judgment may no longer undergo any modification, much less any
reversal, even if it is meant to correct what is perceived to be an erroneous
conclusion of fact or law; and even if it is attempted by the court rendering it
or by this Court. 7 Equally well-entrenched is the doctrine that what is not
permitted to be done directly may not be done indirectly either. In the
instant case, it is unarguable that the inexorable result of granting the
present Motion will precisely be a subversion of the Decision, or at least a
modification that would render the latter totally ineffective and nugatory. AaITCH

To support its present Motion, Comelec appended as Annex 1 a letter

dated January 22, 2004. Addressed to its chairman, the Annex was signed by
f o u r 8 self-proclaimed "information technology experts," 9 who had
gratuitously contended that this Court's Decision was "one of the most
inopportune rulings ever to come out of the hallowed halls of that High
Tribunal"; blame the Decision for supposedly forcing our people "to entrust
their votes to a manual system of counting and canvassing that have been
proven to be prone to massive fraud in the past"; and mouth legal/technical
arguments that have already been repeatedly debunked in the Decision and
Resolution here. The letter also included a long-winded, tortuous discussion
of the software development life cycle.
A quick check of the case records confirmed our suspicion. The very
same letter dated January 22, 2004 had previously been appended as Annex
2 to private respondents' "Omnibus Motion A) for reconsideration of the
Decision dated 13 January 2004; b) to admit exhibits in refutation of the
findings of fact of the Court; c) to have the case set for hearing and/or
reception of evidence if deemed necessary by the Court." The only
difference, is that this time around, Comelec overlooked or failed to
photocopy the last page (page 17) of the letter, bearing the signatures of the
four other purported "information technology experts." 10 In other words, to
support its present Motion, it merely recycled an earlier exhibit that had
already been used in seeking reconsideration of our aforesaid Decision.
While expressing utmost reverence for the finality of the Decision,
Comelec implicitly seeks, nevertheless, to have this Court take up anew
matters that have already been passed upon and disposed of with finality.
It is a hornbook doctrine that courts are presumed to have passed
upon all points that were raised by the parties in their various pleadings, and
that form part of the records of the case. Our Resolution, disposing of
respondents' arguments on reconsideration, did not explicitly and
specifically address all of the matters raised in the said letter of January 22,
2004. It is presumed however, that all matters within an issue raised in a
case were passed upon by the Court, 11 as indeed they were in the instant
case. And as we have held elsewhere, 12 courts will refuse to reopen what
has been decided; they will not allow the same parties or their privies to
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 litigate anew a question that has been considered and decided with finality.
Besides, the letter of January 22, 2004, laden as it is with technical
jargon and impressive concepts, does not serve to alter by even the
minutest degree our finding of grave abuse of discretion by Comelec, on
account of its clear violations of law and jurisprudence and its unjustifiable
and reckless disregard of its own bidding rules and procedures.
Furthermore, the letter would obviously not contain anything that
might serve to persuade us that the situation obtaining in January 2004 has
so changed in the interim as to justify the use of the ACMs in August 2005.
IDEHCa

The Commission seems to think that it can resurrect the dead case by
waving at this Court a letter replete with technical jargon, much like a witch
doctor muttering unintelligible incantations to revive a corpse.
In its main text, the Motion concedes that our Decision "has become
final and executory," and that all that remains to be done is "to make mutual
restitution." 13 So, what is the relevance of all these useless argumentations
and pontifications in Annex 1 by the Commission's self-proclaimed
"experts"? For its own illegal acts, imprudence and grave abuse of
discretion, why blame this Court? For Comelec to know immediately which
culprit should bear full responsibility for its miserable failure to automate our
elections, it should simply face the mirror.
Recovery of Government Funds
Barred by the Motion
Second , the grant of the Motion will bar or jeopardize the recovery of
government funds improvidently paid to private respondents, funds that to
date the OSG estimates to be over one billion pesos. At the very least,
granting the Motion will be antagonistic to the directive in our Decision for
the OSG to recover the "illegal disbursements of public funds made by
reason of the void Resolution and Contract."
Indeed, if the government is conned into not returning the ACMs but
instead keeping and utilizing them, there would be no need for Mega Pacific
to refund the payments made by Comelec. In fact, such recovery will no
longer be possible. Consequently, all those who stood to benefit (or have
already benefited) financially from the deal would no longer be liable for the
refund. They can argue that there was nothing wrong with the voided
Resolution and Contract, nothing wrong with the public bidding, nothing
wrong with the machines and software, since the government has decided to
keep and utilize them. This argument can be stretched to abate the criminal
prosecutions pending before the OMB and the impeachment proceedings it is
considering. After all, "reasonable doubt" is all that is needed to secure
acquittal in a criminal prosecution.
In brief, the poll body's Motion not only asks for what is legally
impossible to do (to reverse and subvert a final and executory Decision of
the highest court of the land), but also prevents the Filipino people from
recovering illegally disbursed public funds running into billions of pesos.
Verily, by subverting the Decision of this Court, the Motion would be unduly
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 favoring and granting virtual immunity from criminal prosecution to the
parties responsible for the illegal disbursement of scarce public funds.
Use of the ACMs and Software
Detrimental to ARMM Elections
Third, the use of the unreliable ACMs and the nonexistent software that
is supposed to run them will expose the ARMM elections to the same
electoral ills pointed out in our final and executory Decision. Be it
remembered that this Court expressly ruled that the proffered hardware and
software 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 criterion of 99.9995
percent set up by the Comelec itself. SaIHDA

"• 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." 14

The Motion has not at all demonstrated that these technical

requirements have been addressed from the time our Decision was issued
up to now. In fact, Comelec is merely asking for leave to use the machines,
without mentioning any specific manner in which the foregoing requirements
have been satisfactorily met.
Equally important, we stressed in our Decision that "[n]othing 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 retested, if nothing was done about the programming
defects and deficiencies, the same danger of massive electoral fraud
remains." 15
Other than vaguely claiming that its four so-called "experts" have
"unanimously confirmed that the software development which the Comelec
undertook, [was] in line with the internationally accepted standards (ISO/IEC
12207) [for] software life cycle processes," the present Motion has not shown
that the alleged "software development" was indeed extant and capable of
addressing the "programming defects and deficiencies" pointed out by this
Court.
At bottom, the proposed use of the ACMs would subject the ARMM
elections to the same dangers of massive electoral fraud that would have
been inflicted by the projected automation of the 2004 national elections.
Motion Inadequate
and Vague
Fourth, assuming arguendo that the foregoing formidable legal,
financial and technical obstacles could be overcome or set aside, still, the
Motion cannot be granted because it is vague; it does not contain enough
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 details to enable this Court to act appropriately.
The sham nature of the Motion is evident from the following
considerations. While Comelec asserts a pressing need for the ACMs to be
used in the ARMM elections, strangely enough, it has not bothered to
determine the number of units that will be required for the purpose, much
less tried to justify such quantification. It contracted for a total of 1,991
ACMs, intended for use throughout the entire country during the 2004
elections. Are we to believe that all 1,991 units would be utilized to count
and canvass the votes cast in the ARMM elections? Such a scenario is highly
unlikely, even ridiculous. TAcSCH

A genuine, bona fide proposal for the utilization of the ACMs would
naturally have included a well-thought-out plan of action, indicating the
number of units to be deployed, places of utilization, number of operators
and other personnel required, methods/periods of deployment and recovery
or retrieval, assessments of costs and risks involved in implementing the
proposal, and concomitant justifications, among other things. Now, either
"The Plan" is being kept absolutely top secret, or it is completely
nonexistent.
Furthermore, once the ACMs are deployed and utilized, they will no
longer be in the same condition as when they were first delivered to
Comelec. In fact, it is quite probable that by the time election day comes
around, some of the machines would have been mishandled and damaged,
maybe even beyond repair. What steps has the poll body taken to make
certain that such eventualities, if not altogether preventable, can at least be
minimized so as to ensure the eventual return of the ACMs and the full
recovery of the payments made for them? A scrutiny of the 4-page Motion 16
ends in futility. It is all too clear that a failure or inability of Comelec to return
the machines sans damage would most assuredly be cited as a ground to
refuse the refund of the moneys paid. Yet, if Comelec has given any thought
at all to this or any other contingency, such fact has certainly not been made
evident to us. ITSacC

ARMM Elections Not Jeopardized

by Non use of ACMs
Fifth, there is no basis for the claim that unless the subject ACMs are
used, the ARMM elections would not be held.
At the outset, if such elections are not held, the blame must be laid
squarely at the doorstep of Comelec. To stress, had it not gravely abused its
discretion, the automation of the vote counting and canvassing processes
would have already become a reality over a year ago, and the ACMs that
would have been used in the 2004 national elections would now be available
for the ARMM elections.
In any event, the Commission in its Motion argues that the
government, given its present fiscal difficulties, has no available funds to
finance the automation of the ARMM elections. Without even asking under
what authority it has assumed the role of Treasury spokesman, we
emphasize that there would not now be any lack of funds for election
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 automation had it not improvidently turned over P1 billion of taxpayers'
moneys to Mega Pacific's bank accounts.
Nevertheless, had the poll body been honestly and genuinely intent on
implementing automated counting and canvassing for the ARMM elections, it
ought to have informed Congress of the non-availability of the subject ACMs
due to our Decisions and of the need for special appropriations, instead of
wasting this Court's time on its unmeritorious Motion. In fact, if only it had
taken proper heed of our Decision of January 13, 2004, it could have
conducted an above-board public bidding for the supply of acceptable ACMs.
Certainly, this option or course of action was not foreclosed by our
Decision. Moreover, there was sufficient time within which to conduct the
public bidding process. RA 9333, which set the second Monday of August
2005 (August 8, 2005) as the date of the ARMM elections, was enacted on
September 21, 2004. Undoubtedly, Comelec was made aware of the
proposed date of the ARMM elections way before the passage of RA 9333.
Thus, the poll body had about ten (10) months at the very least (between the
end of September 2004, when RA 9333 came into force and effect, and
August 8, 2005) to lobby Congress, properly conduct a public bidding, award
the appropriate contracts, deliver and test the new machines, and make
final preparations for the election.
Even assuming that a new public bidding for ACMs was not a viable
option, still, Comelec has had more than sufficient lead time — about ten
months counted from the end of September 2004 until August 8, 2005 — to
prepare for manual counting and canvassing in the ARMM elections. It
publicly declared, sometime in late January 2004, that notwithstanding our
Decision nullifying the Mega Pacific Contract, it would still be able to
implement such manualization for the May 10, 2004 national elections. It
made this declaration even though it had a mere three months or so to set
up the mechanics. In this present instance involving elections on a much
smaller scale, it will definitely be able to implement manual processes if it
wants to. TcIAHS

There is therefore absolutely no basis for any apprehension that the

ARMM elections would not push through simply because the present Motion
cannot pass muster. More to the point, it would be ridiculous to regard the
grant of permission to use the subject ACMs as the conditio sine qua non for
the holding of the ARMM elections.
What is most odious is the resort to the present Motion seeking the use
of the subject ACMs despite the availability of viable alternative courses of
action 17 that will not tend to disturb or render this Court's final Decision
ineffectual. Thus, the present Motion is wholly unnecessary and
unwarranted. Upon it, however has Comelec pinned all its hopes, instead of
focusing on what the poll body can and ought to do under the
circumstances. The consequences of granting its lamentable Motion, we
repeat, will indubitably subvert and thwart the Decision of this Court in the
instant case.
Equally reprehensible is the attempt of the Commission to pass the
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 onus of its mismanagement problems on to this Court. For instance, the
Motion quotes the cost of storage of the ACMs in its Maxilite Warehouse at
P329,355.26 per month or P3,979,460.24 per annum. Assuming for the
nonce that the machines have to be held in storage pending the decision in
the civil case (as it would simply not do to throw the machines out into the
streets), why must it assume the cost of storage? Per our Decision, the
machines are to be returned to Mega Pacific. If it refuses to accept them
back, it does not follow that Comelec must pick up the tab. Instead of further
wasting the taxpayers money, it can simply send the bill to Mega Pacific for
collection.
It would be entirely improper, bordering on unmitigated contempt of
court, for the Commission to try to pass on the problem to this Court through
its Motion.
No Actual Case or
Controversy
Finally, the Motion presents no actual justiciable case or controversy
over which this Court can exercise its judicial authority. It is well-established
in this jurisdiction that ". . . for a court to exercise its power of adjudication,
there must be an actual case or controversy — one which involves a conflict
of legal rights, an assertion of opposite legal claims susceptible of judicial
resolution; the case must not be moot or academic or based on extra-legal
or other similar considerations not cognizable by a court of justice. . . .
[C]ourts do not sit to adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging." 18 The controversy
must be justiciable — definite and concrete, touching on the legal relations
of parties having adverse legal interests. 19 In other words, the pleadings
must show an active antagonistic assertion of a legal right, on the one hand,
and a denial thereof on the other; that is, it must concern a real and not a
merely theoretical question or issue. 20 There ought to be an actual and
substantial controversy admitting of specific relief through a decree
conclusive in nature, as distinguished from an opinion advising what the law
would be upon a hypothetical state of facts. 21
A perusal of the present Motion will readily reveal the utter absence of
a live case before us, involving a clash of legal rights or opposing legal
claims. At best, it is merely a request for an advisory opinion, which this
Court has no jurisdiction to grant. 22
EPILOGUE
We close this Resolution by repeating the last two paragraphs of our
final and executory Decision:
"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. ISDCHA

"At bottom, before the country can hope to have a speedy and
fraud-free automated election, it must first be able to procure the
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 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-board process 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." 23

Comelec must follow and not skirt our Decision. Neither may it short-
circuit our laws and jurisprudence. It should return the ACMs to MPC-MPEI
and recover the improvidently disbursed funds. Instead of blaming this Court
for its illegal actions and grave abuse of discretion, the Commission should,
for a change, devise a legally and technically sound plan to computerize our
elections and show our people that it is capable of managing the transition
from an archaic to a modern electoral system.
WHEREFORE, the Motion is hereby DENIED for utter lack of merit.
Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
Martinez, Corona, Carpio Morales, Callejo Sr., Azcuna, Chico-Nazario and
Garcia, JJ., concur.
Davide Jr., C.J. and Puno, J., concur in the result.
Tinga, J., I concur on the ground that there is no live case, but only on
that ground. This case is no different from a mooted case which by reason of
the supervening development has to be dismissed but only on that ground.

Footnotes

1. 419 SCRA 141, January 13, 2004.

2. "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
off their functions. The State, of course, is not bound by the mistakes and
illegalities of its agents and servants." (Id., pp. 203-204.)
3. The Comelec Motion expressly recognizes this fact on page 2, which we
quote:

"Since the Decision has become final and executory, COMELEC and MPC-
MPEI are under obligation to make mutual restitution."

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 4. The dispositive portion of our Decision reads:

"WHEREFORE, the Petition is GRANTED. The Court hereby declares NULL

and VOID Comelec Resolution No. 6074 awarding the contract for Phase II of
the AES [Automated Election System] to Mega Pacific Consortium (MPC). Also
declared null and void is the subject Contract executed between Comelec
and Mega Pacific eSolutions (MPEI). 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."
5. 402 SCRA 612, May 5, 2003 and 420 SCRA 575, January 21, 2004.

6. Art. VIII, Sec. 1, par. 2, 1987 Constitution.

7. Philippine Veterans Bank v . Estrella, 405 SCRA 168, June 27, 2003. While
there are recognized exceptions to the rule — viz., the correction of clerical
errors, nunc pro tunc entries that cause no prejudice to any party, and of
course when the judgment is void — movants have not claimed or shown
that any such exceptions apply here.
8. There are actually more than four signatories, as will be explained presently.

9. They are Nelson J. Celis, Ma. Elena P. Van Tooren, Antonio G. Tinsay and
Carlos Manuel.
10. The latter four are Romeo Monteclaro, Allan Borra, Ma. Leonora Padero and
Alfonso Palpal-latoc Jr.

11. Rule 131, Sec. 3(o) of the Rules of Court. See Toh v. Solid Bank Corporation,
408 SCRA 544, August 7, 2003.
12. Vide Heirs of De Leon vda. de Roxas v. CA, 422 SCRA 101, February 6, 2004
(citing Buaya v. Stronghold Insurance Co. , Inc., 342 SCRA 576, October 11,
2000.)

13. Comelec Motion, p. 2.

14. Decision, supra, p. 148.

15. Id., p. 193; italics in the original.

16. The text of the main Motion contains only four pages, not counting the
annexes thereof.

17. For instance, during the 13th International Judicial Conference held in Kiev,
Ukraine, on May 25-27, 2005, Carlos Velloso, president of the Superior
Electoral Tribunal of Brazil, publicly offered the free use of the automated
counting machines that had been successfully utilized in the automation of
the elections in that country, which has many more voters than the
Philippines.
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 18. Republic v. Tan, 426 SCRA 485, March 30, 2004, per Carpio Morales, J.
19. See Aetna Life Insurance Co. v. Hayworth, 300 U.S. 227 (1937).

20. Vide: De Lumen v. Republic, 50 OG No. 2, February 14, 1952, p. 578.

21. Aetna Life Insurance Co. v. Hayworth, supra.
22. See also Automotive Industry Workers Alliance v . Romulo, G.R. No. 157509,
January 18, 2005.
23. Decision, supra, p. 204.

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