7/8/25, 4:53 PM [ G.R. No. 270564.

April 16, 2024 ]

EN BANC
[ G.R. No. 270564. April 16, 2024 ]
SMARTMATIC TIM CORPORATION AND SMARTMATIC
PHILIPPINES, INC., PETITIONERS, VS. COMMISSION ON
ELECTIONS EN BANC, ELISEO MIJARES RIO, JR., AUGUSTO
CADELIÑA LAGMAN, FRANKLIN FAYLOGA YSAAC, AND
LEONARDO OLIVERA ODOÑO,* RESPONDENTS.
DECISION

MARQUEZ, J.:

In exercising its constitutional mandate to enforce and administer all laws and regulations
relative to the conduct of elections, plebiscites, initiatives, referenda, and recall, the
Commission on Elections (COMELEC) must comply with existing laws and regulations,
including Republic Act No. 9184,[1] or the Government Procurement Reform Act (GPRA),
and its 2016 Revised Implementing Rules and Regulations[2] (2016 Revised IRR).

Before the Court is a Petition for Certiorari (With Extremely Urgent Application for the
Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction) With
Urgent Motion for Special Raffle[3] under Rule 65, Rules of Court filed by petitioners
Smartmatic TIM Corporation (Smartmatic TIM) and Smartmatic Philippines, Inc.
(Smartmatic PH) (collectively referred to as Smartmatic), assailing the November 29, 2023
Resolution[4] of the COMELEC En Banc, which disqualified Smartmatic from participating
in any bidding process for elections.

Smartmatic alleges that it was the service provider of the Automated Election System (AES)
in the 2010, 2013, 2016, 2019, and 2022 National and Local Elections (NLE).[5] On
February 22, 2023, it received an invitation from the COMELEC to attend an Election
Summit in preparation for the 2025 NLE.[6] Smartmatic attended the Election Summit and
the subsequent Procurement Summit. It also received multiple Requests for Information from
the COMELEC regarding the 2025 AES.[7]

On October 27, 2023, the COMELEC published the Invitation to Bid for the Lease of Full
Automation System with Transparency Audit/Count (FASTrAC) for the 2025 NLE.[8] On
October 30, 2023, Smartmatic purchased the bidding documents.[9] On November 13, 2023,
SMMT-TIM 2016, Inc. (an entity related to, but separate from, Smartmatic) attended the Pre-
Bid Conference.[10]

In the meantime, private respondents Eliseo Mijares Rio, Jr., Augusto Cadelina Lagman,
Franklin Fayloga Ysaac, and Leonardo Olivera Odoño (Rio, Jr. et al.) filed a petition,[11]
supplemental petition,[12] and second supplemental petition[13] before the COMELEC En
Banc. In their petitions, Rio, Jr. et al. alleged that: (a) the transmission of the results of
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certain precincts preceded the printing of election results; (b) a scheme to clone vote
counting machine (VCM) transmissions was shown by the fact that the logs reflect the same
internet protocol (IP) address for certain machines instead of separate IP addresses; and (c)
Smartmatic's affiliates and/or representatives reportedly met with the representatives of a
presidential candidate while Smartmatic's Secure Electronic Transmission Services (SETS)
Contract for the 2022 NLE results was still in force, in violation of Clause 5.13 of the SETS
Contract.[14] Among other reliefs, Rio, Jr. et al. prayed that "[t]he qualifications of
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,"[15] 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.[16]

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.[17] 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.[18]

On October 5, 2023, the COMELEC En Banc set the case for hearing on October 17, 2023.
[19] It also required Smartmatic to comment on the petitions filed by Rio, Jr. et al.[20]

During the October 17, 2023 hearing, the COMELEC En Banc required the parties to file
their respective memoranda and formal offer of evidence within five days, and their
respective reply memoranda within three days from receipt of the other party's memorandum.
[21]

On November 29, 2023, the COMELEC En Banc ruled in favor of Rio, Jr. et al. The
dispositive portion of its Resolution reads:

WHEREFORE, premises considered, the Commission (En Banc) hereby

RESOLVED to GRANT the Petition. SMARTMATIC PHILIPPINES, 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 [Rio, Jr. et al.'s] instance, order the
conduct of 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 [Rio, Jr. et al.].

SO ORDERED.[22] (Emphasis in the original)

The COMELEC En Banc first clarified that at that stage of the procurement process and as
head of the procuring entity, it cannot review the qualifications of Smartmatic.[23]

Under the GPRA, a procuring entity has the authority to assess the qualifications of a bidder
at any time during the procurement process, provided there are reasonable grounds to suspect
misrepresentation by the bidder or a change in the bidder's capacity to undertake the project
since the submission of eligibility requirements.[24] However, Rio, Jr. et al. filed their

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Petition on June 15, 2023, before the procurement process had begun.[25] While the Special
Bids and Awards Committee (SBAC) assumed jurisdiction over matters relating to the
procurement for the 2025 AES upon the holding of the pre-bid conference, Non-Policy
Matter (NPM) No. 104-2017 issued by the Government Procurement Policy Board (GPPB)
clarified that a bidder may only be disqualified during eligibility screening, bid evaluation,
and post qualification.[26] In addition, Rio, Jr. et al. did not comply with the procedure for
blacklisting under the 2016 Revised IRR.[27]

The COMELEC En Banc then went on to hold that the Constitution grants it the broad power
to enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall.[28] This constitutional authority is distinct from
the COMELEC's authority as a procuring entity under the GPRA, and its task of ensuring
electoral integrity necessarily includes maintaining the public's confidence in the elections.
[29] To discharge this duty completely and effectively, it should assure the public that this

obligation extends to its partners.[30]

In this regard, the COMELEC En Banc narrated that as early as October 2022, it received
requests for official documents relative to an ongoing criminal investigation by the United
States Department of Justice (US DOJ) against former COMELEC Chairperson Juan Andres
D. Bautista (Bautista) and other individuals and entities:[31]

Pursuant to the treaty between the Government of the Philippines and the
Government of the United States on Mutual Legal Assistance in Criminal Matters
(PH-US MLAT), an investigation was conducted for the alleged violation of U.S.
criminal laws, including the Foreign Corrupt Practices Act, conspiracy, wire
fraud, and money laundering. The U.S. prosecutor sought assistance in obtaining
official records from the Commission as part of the efforts to establish a case.

The evidence requested is deemed crucial for tracking the flow of suspected bribe
payments and identifying other individuals involved in the alleged scheme. It is
noteworthy that Bautista, who served as the Chairman of the Commission, was
formally charged in September 2023, in connection with allegations of receiving
bribes in exchange for awarding a contract for election machines to Smartmatic
Corp. Bautista and others are alleged to have laundered the bribe money through
multiple entities. It was revealed that Bautista established a foreign shell
company, which was used to receive bribe payments from Smartmatic. The
charges against Smartmatic and former Chairman Bautista are of public
knowledge and tend to cause speculation and distrust in integrity of the electoral
process.[32] (Emphasis supplied)

Considering the allegations of bribery and compromised procurement processes, as

independently determined by foreign bodies, the COMELEC En Banc held that there exists
an imminent threat to democratic processes.[33] Citing its administrative powers over all
aspects of elections, the COMELEC En Banc disallowed Smartmatic from participating in
any public bidding for elections.[34] The COMELEC En Banc also referred the matter to the
SBAC for possible permanent disqualification and blacklisting of Smartmatic from all
government procurement proceedings.[35]

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However, the COMELEC En Banc categorically rejected Rio, Jr. et al.'s allegations of
irregularities in the conduct of the 2022 NLE:

To be clear, the Commission (En Banc) categorically states that no irregularities

attended the conduct of the 2022 NLE. The allegations of Petitioners pertaining to
the alleged consistency in the ratio of transmitted results, the use of single IP
address, and alleged discrepancies in the transmission and election returns have
been sufficiently addressed by the Commission at length.

In fact, apart from the successful conduct of the Random Manual Audit attended
by independent observers and accredited political parties showing the consistency
in the results, and the observations by accredited citizens' arms[,] Petitioners
themselves admitted that the parallel count conducted by the Parish Pastoral
Council for Responsible Voting (PPCRV) matched the transmitted results.[36]
(Emphasis supplied)

Hence, this Petition.

Smartmatic contends that the COMELEC committed grave abuse of discretion amounting to
lack or excess of jurisdiction in (a) ruling on the disqualification and blacklisting of
Smartmatic;[37] (b) wrongfully invoking Article IX-C, Section 2(1) of the Constitution[38] to
justify its disqualification and blacklisting of Smartmatic;[39] and (c) whimsically and
arbitrarily disregarding the procedure for disqualification and blacklisting under the GPRA
and its 2016 Revised IRR.[40] Among other arguments, Smartmatic avers that it was
Smartmatic TIM, and not Smartmatic PH, that entered in the SETS Contract for the 2022
NLE, but the petitions filed by Rio, Jr. et al. before the COMELEC wrongfully impleaded
Smartmatic PH.[41] The COMELEC also arbitrarily disqualified and blacklisted Srnartmatic
based on grounds that were never raised in the petitions, i.e., its alleged involvement in the
US government's investigation against Bautista, and despite its categorical finding that no
irregularities attended the conduct of the 2022 NLE.[42]

The COMELEC's citation of Article IX-C, Section 2(1) of the Constitution is also misplaced
because the said provision only permits the COMELEC to enforce and administer existing
laws and regulations.[43] It does not empower the COMELEC to supplant the procedures
provided by the GPRA and its 2016 Revised IRR.[44] Government procurement is governed
by the principles of transparency, competitiveness, streamlined procurement process,
accountability, and public monitoring, and the COMELEC violated these principles when it
refused to apply the GPRA and its 2016 Revised IRR.[45]

In support of its prayer for the issuance of a TRO and/or writ of preliminary injunction,
Smartmatic claims that it has a clear and unmistakable right to participate in the public
bidding for the lease of the FASTrAC because it complied with the bidding requirements and
its disqualification has no legal basis.[46] Smartmatic also maintains that the implementation
of the assailed Resolution will cause grave and irreparable injury to its goodwill and business
reputation.[47]

On December 18, 2023, Smartmatic filed a Manifestation and Supplement to the Petition for
Certiorari dated 6 December 2023 (With Application for the Issuance of a Status Quo Ante
Order)[48] reiterating its prayer for the issuance of a TRO and/or writ of preliminary
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injunction and praying for the issuance of a status quo ante order (SQAO). Smartmatic
informed the Court that bid submission took place on December 14, 2023, and that the
SMMT-TIM 2016, Inc. attempted to submit its bid, but the COMELEC directed the SBAC
not to accept its bidding documents.[49] It also alleged that the SBAC declared a failure of
bidding because the sole bidder—a joint venture composed of Miru Systems Co. Ltd.,
Integrated Computer Systems, St. Timothy Construction Corporation, and Centerpoint
Solution Technologies, Inc. (Miru Systems)—failed to comply with certain documentary
requirements under the GPRA and its 2016 Revised IRR.[50] As a result, the conduct of
bidding was reset to January 4, 2024.[51]

On the same day, the Court En Banc issued a Resolution[52] ordering the COMELEC and
Rio, Jr. et al. to personally file and serve their comments on the Petition and the prayer for
the issuance of a TRO and/or writ of preliminary injunction within a non-extendible period
of 10 days from notice, or by December 28, 2023.[53]

On December 28, 2023, the COMELEC filed an Omnibus Motion (i) For the
Reconsideration of the Honorable Court's Order dated 18 December 2023; and (ii) For an
Additional Period to File Comment[54] requesting an additional period of seven days, or until
January 4, 2024, to comment on the Petition and the prayer for a TRO and/or writ of
preliminary injunction.[55]

The next day, December 29, 2023, Smartmatic filed its Opposition[56] to the COMELEC's
Omnibus Motion, contending that it is a mere dilatory tactic intended to deprive Smartmatic
of the opportunity to participate in the procurement process of the 2025 AES.

On January 2, 2024, Rio, Jr., Lagman, and Ysaac submitted their Comment (To the Petition
dated 06 December 2023) With Opposition to the Issuance of a Temporary Restraining Order
and/or Writ of Preliminary Injunction.[57] They claim that the COMELEC acted within its
constitutional mandate in disqualifying Smartmatic, and that the serious irregularities which
occurred during the transmission of the election results in the 2022 NLE were sufficient basis
for Smartmatic's disqualification.[58] As to Smartmatic's application for a TRO and/or writ of
preliminary injunction, they argue that Smartmatic failed to establish a clear and
unmistakable right to participate in the bidding for the lease of FASTrAC for the 2025 NLE.
[59]

On January 4, 2024, the COMELEC submitted its Comment with Opposition to the Prayer
for Status Quo Ante Order, Temporary Restraining Order, and/or Preliminary Injunction.[60]
It raises procedural objections to the Petition, arguing that Smartmatic's direct resort to the
Court violates the rule on hierarchy of courts.[61] Moreover, Smartmatic failed to file a
motion for reconsideration before the COMELEC En Banc, which is a prerequisite to the
filing of a petition for certiorari.[62] A motion for reconsideration is not a prohibited pleading
since the COMELEC proceedings in this case are administrative, rather than quasi-judicial,
in nature; accordingly, the prohibition on filing motions for reconsideration in quasi-judicial
proceedings before the COMELEC does not apply. As a result, Smartmatic's resort to
certiorari, without first seeking reconsideration of the assailed Resolution, did not toll the
finality of the assailed Resolution.[63]

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The COMELEC maintains that the GPRA and its 2016 Revised IRR restrict its power to
disqualify a prospective bidder.[64] Thus, under the circumstances, it properly and reasonably
exercised its broad constitutional powers, and it did not violate Smartmatic's right to due
process.[65]

The COMELEC also opposes Smartmatic's prayer for the issuance of a TRO, writ of
preliminary injunction, and/or SQAO, maintaining that Smartmatic failed to avail of an
ordinary, speedy, and adequate remedy, i.e., the filing of a motion for reconsideration.[66]
Moreover, Smartmatic did not establish any clear legal right that needs to be protected or any
circumstance warranting the issuance of an SQAO on equitable grounds, and the public
stands to suffer greater injury if an injunction is issued, as voters will be deprived of the full
benefits of an automated election.[67]

On January 5, 2024, Rio, Jr., Lagman, and Ysaac filed a Manifestation,[68] informing the
Court that they filed a petition with the COMELEC docketed as EM Case No. 24-001, titled
"In the Matter of the Petition for the Honorable Commission on Elections to Revise the
Terms of Reference ("TOR") for the 2025 National and Local Elections Automation Project
by Adopting a Hybrid Election System Consisting of Manual Voting and Counting of Votes
with Automated Transmission and Canvassing of, Results."

On January 11, 2024, Smartmatic filed a Manifestation with Reiterative Motion (For the
Issuance of Temporary Restraining Order and/or Status Quo Ante Order).[69] According to
Smartmatic, bid submission pushed through on January 8, 2024 (instead of January 4, 2024,
as previously announced), and the SBAC refused to accept the bid of a joint venture
composed of SMMT-TIM 2016 Inc., Smartmatic Holdings Inc., and Jarltech International
Inc.[70] Miru Systems was again the lone bidder, and the SBAC opened its bid and declared
it eligible.[71] As a result, the SBAC was scheduled to proceed with the post-qualification
process with Miru Systems.[72] Smartmatic repeated its prayer for the issuance of a TRO
and/or writ of preliminary injunction, SQAO, and an order annulling any and all proceedings
which proceeded or will proceed pursuant to the implementation of the assailed Resolution.
[73]

In its January 23, 2024 Resolution,[74] the Court resolved, among others, to require the
COMELEC and Rio, Jr. et al. to show cause as to why they should not be disciplined for not
filing their respective comments in compliance with the Court's December 18, 2023
Resolution.[75]

On January 26, 2024, COMELEC submitted a Motion for Leave to File and Admit the
Attached Counter-Manifestation with Motion to Dismiss,[76] where it confirmed that Miru
Systems was required to submit the necessary business and financial documents for post-
qualification evaluation.[77] The COMELEC moved for the dismissal of the Petition for
being moot and academic[78] because the act that Smartmatic sought to enjoin, i.e.,
preventing Smartmatic from bidding for the lease of FASTrAC, had already been
consummated and post-qualification proceedings were already underway.[79]

On February 29, 2024, the COMELEC filed a Motion for Leave to File and Admit
Manifestation,[80] informing the Court that the SBAC declared Miru Systems as the post-
qualified bidder with the Single Calculated and Responsive Bid for the lease of FASTrAC for
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the 2025 NLE.[81] The SBAC recommended the issuance of the Notice of Award, contract,
and Notice to Proceed to Miru Systems, and the COMELEC En Banc approved this
recommendation.[82]

On March 13, 2024, the COMELEC filed another Motion for Leave to File and Admit
Manifestation,[83] this time informing the Court that the COMELEC and Miru Systems
signed the Contract for the Lease of FASTrAC for the 2025 NLE (2025 FASTrAC Contract)
on March 11, 2024.[84]

On March 18, 2024, the COMELEC filed its third Motion for Leave to File and Admit
Manifestation[85] informing the Court that the US DOJ had already unsealed the criminal
complaint against Bautista.[86] The COMELEC provided the Court with a copy of the
complaint,[87] which alleged, among others, that a group of related unnamed corporations
made several payments to Bautista to secure the award of the AES contracts for the 2016
NLE. It was signed by a certain Colberd Almeida, a Special Agent of the Homeland Security
Investigations, US Department of Homeland Security.[88] The last paragraph of the attached
supporting affidavit, also signed by Mr. Almeida, states:

CONCLUSION

70. Based on the foregoing, your Affiant submits there is probable cause to issue
a criminal complaint and arrest warrant charging Juan Andres “Andy" Donato
Bautista with conspiring to launder monetary instruments and conspiring to
engage in monetary transactions in property derived from specified unlawful
activity, in violation of 18 U.S.C. §§ 1956(a)(2)(A), 1956(a)(2)(B)(i), and
1957(a); all in violation of 18 U.S.C. § 1956(h); and laundering and attempted
laundering of monetary instruments, in violation of 18 U.S.C. §§ 1956(a)(2)(A)
and 1956(a)(2)(B)(i).

FURTHER YOUR AFFIANT SAYETH NAUGHT.[89]

On March 25, 2024, the COMELEC submitted a Manifestation of Profuse Apology and
Motion[90] in compliance with the Court's show cause order in its January 23, 2024
Resolution. The COMELEC claims that it was impossible for it to comply with the non-
extendible period under the Court's December 18, 2023 Resolution to personally file its
Comment due to the voluminous documents involved and the intervening holidays.[91]

We first dispose of the COMELEC's procedural objections.

Contrary to the COMELEC's protestations, relaxation of the doctrine of hierarchy of courts

and direct recourse to the Court are justified.

In Causing v. People,[92] the Court discussed the doctrine of hierarchy of courts as follows:

Certainly, regional trial courts, the Court of Appeals (CA), and the Court share
original and concurrent jurisdiction in the issuance of writs of certiorari,
prohibition, mandamus, quo warranto, and habeas corpus. However, the doctrine
of hierarchy of courts prevents parties from randomly selecting which among
these forums their actions will be directed. Thus, as a rule, direct resort to the
Court is improper because the Supreme Court is a court of last resort and must
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remain so in order for it to satisfactorily perform its constitutional functions.

[93] (Emphasis supplied, citations omitted)

However, the Court has provided certain exceptions to the doctrine of hierarchy of courts,
namely: (a) when there are genuine issues of constitutionality that must be addressed at the
most immediate time; (b) when the issues involved are of transcendental importance; (c) in
cases of first impression; (d) the constitutional issues raised are better decided by the
Supreme Court; (e) the time element or exigency in certain situations; (f) the filed petition
reviews an act of a constitutional organ; (g) when there is no other plain, speedy, and
adequate remedy in the ordinary course of law; and (h) the petition includes questions that
are dictated by public welfare and the advancement of public policy, or demanded by the
broader interest of justice, or the orders complained of were found to be patent nullities, or
the appeal was considered as clearly an inappropriate remedy.[94]

In GIOS-SAMAR, Inc. v. Department of Transportation and Communications,[95] the Court

explained that the decisive factor in permitting the invocation of the Court's original
jurisdiction in the issuance of extraordinary writs is the nature of the question raised by the
parties.[96] It held that the Court will only allow direct recourse when the issue raised is a
pure question of law.[97] When a question before the Court involves a determination of a
factual issue that is indispensable to the resolution of the legal issue, the Court will refuse to
resolve the question regardless of compelling reasons.[98]

The present Petition questions the COMELEC's non-compliance with the GPRA and its 2016
Revised IRR during the procurement of the lease of FASTrAC for the 2025 NLE. In its
defense, the COMELEC cites its constitutional mandate to enforce and administer all laws
relating to elections, and claims that this mandate permits it to disqualify Smartmatic without
resort to the applicable procedure under the GPRA. The controversy raises genuine issues of
constitutionality that are of transcendental importance and must be addressed at the most
immediate time. Moreover, the factual background of the present controversy is not disputed.
As the only issue before the Court is a pure question of law, i.e., whether the COMELEC
erred in disqualifying Smartmatic without following the procedure prescribed by the GPRA
and its 2016 Revised IRR, the instant Petition is an exception to the doctrine of hierarchy of
courts.

It is also worth noting that Section 58 of the GPRA, does not bar the Court from exercising
jurisdiction over the dispute. It states:

SEC. 58. Report to Regular Courts; Certiorari. – Court action may be

resorted to only after the protests contemplated in [Article XVII] shall have
been completed. Cases that are filed in violation of the process specified in this
Article shall be dismissed for lack of jurisdiction. The regional trial court shall
have jurisdiction over final decisions of the head of the procuring entity. Court
actions shall be governed by Rule 65 of the 1997 Rules of Civil Procedure.
(Emphasis supplied)

An examination of Article XVII of the GPRA demonstrates that the "protests contemplated in
[Article XVII]" refer to protests against decisions of the BAC, filed before the head of the
procuring entity.[99] In this case, the assailed Resolution is not a decision resolving a protest
from a decision rendered by the SBAC; rather, it resolved the original actions filed by Rio, Jr.
et al. before the COMELEC En Banc, which did not challenge any action or decision of the
SBAC.
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The COMELEC also maintains that Smartmatic's failure to file a motion for reconsideration
before the COMELEC En Banc is fatal to its Petition.

On this score, the COMELEC's exercise of its powers under Article IX-C, Section 2(1) of the
Constitution, is administrative in nature,[100] and the COMELEC is correct insofar as it
argues that the prohibition on motions for reconsideration under the COMELEC Rules of
Procedure[101] does not apply to the petitions filed by Rio, Jr. et al. However, the COMELEC
is mistaken in insisting that Smartmatic's failure to seek reconsideration of the assailed
Resolution renders the Petition dismissible.

In Querubin v. Commission on Elections,[102] the Court resolved a petition for certiorari

under Rule 64 filed by certain private individuals against the COMELEC En Banc. In the
COMELEC's challenged decision, it declared Smartmatic TIM, Smartmatic International
Holding B.V., and Jarltech International Corporation as the bidder with the lowest calculated
responsive bid in the COMELEC's "Two-Stage Competitive Bidding for the Lease of
Election Management System (EMS) and Precinct-Based Optical Mark Reader (OMR) or
Optical Scan (OP-Scan) System."[103]

In dismissing the petition, the Court held that the COMELEC En Banc rendered the assailed
decision in the exercise of its administrative powers; consequently, a petition under Rule 65
was proper and the petition filed under Rule 64 was dismissible outright for being the wrong
remedy:

As applied herein, recall that the instant petition revolves around the issue of
whether or not Smartmatic JV is eligible to participate in the bidding process for
the COMELEC's procurement of 23,000 units of optical mark readers. The case
does not stem from an election controversy involving the election, qualification,
or the returns of an elective office. Rather, it pertains to the propriety of the
polling commission's conduct of the procurement process, and its initial finding
that Smartmatic JV is eligible to participate therein. It springs from the
COMELEC's compliance with the Constitutional directive to enforce and
administer all laws and regulations relative to the conduct of an election.
Specifically, it arose from the electoral commission's exercise of Sec. 12 of RA
8436, otherwise known as the Automated Elections Law, as amended by RA
9369, which authorized the COMELEC "to procure, in accordance with existing
laws, by purchase, lease, rent or other forms of acquisition, supplies, equipment,
materials, software, facilities, and other services, from local or foreign sources
free from taxes and import duties, subject to accounting and auditing rules and
regulations."

The subject matter of Smartmatic JV's protest, therefore, does not qualify as one
necessitating the COMELEC's exercise of its adjudicatory or quasi-judicial
powers that could properly be the subject of a Rule 64 petition, but is, in fact,
administrative in nature. Petitioners should then have sought redress via a petition
for the issuance of the extraordinary writ of certiorari under Rule 65 to assail the
COMELEC en banc's June 29, 2015 Decision granting the protest.[104]
(Emphasis supplied, citations omitted)

Similarly, the present Petition challenges a ruling of the COMELEC En Banc in relation to
its procurement activities. Considering that the assailed Resolution disqualified Smartmatic
from participating in any public bidding process for elections, the dispute "pertains to the
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propriety of the polling commission's conduct of the procurement process" and involves an
exercise of the COMELEC's administrative, and not quasi-judicial, functions. Accordingly,
the COMELEC Rules of Procedure are inapplicable to the present dispute, and Smartmatic is
not required to seek a reconsideration of the COMELEC En Banc's Resolution.

This conclusion is supported by the plain text of the COMELEC Rules of Procedure. While
Section 2 states that these Rules apply to all actions and proceedings brought before the
COMELEC, with Part VI applying to election contests and quo warranto cases cognizable
by courts of general jurisdiction, Section 5 only defines the following actions: ordinary
actions, i.e., election protests, quo warranto, and appeals from decisions of courts in election
protest cases; special actions, i.e., petitions to deny due course to certificates of candidacy,
declare a candidate a nuisance candidate, or disqualify a candidate or postpone or suspend an
election; special cases or pre-proclamation cases, and special reliefs consisting of certiorari,
prohibition, and mandamus in limited cases;[105] and contempt. Proceedings such as those
that led to the issuance of the assailed Resolution are not included in the foregoing
enumeration, nor are they analogous to any of the enumerated cases. Expressio unius est
exclusio alterius: the express mention of one person, thing, act, or consequence excludes all
others.[106]

Notwithstanding the foregoing, the circumstances of the present controversy call for the
application of the following exceptions to the rule requiring a motion for reconsideration
before resorting to certiorari: there is urgent necessity for the resolution of the question and
any further delay would prejudice the interests of the Government, and the issue raised is one
purely of law and public interest is involved.[107]

The urgent need to resolve this dispute is underscored by the impending 2025 NLE. Public
interest in ensuring the conduct of free and fair elections is also undoubtedly involved in this
controversy. Contrary to the COMELEC's posturing, the dispute involves much more than
Smartmatic's private financial interests. The COMELEC's choice of supplier for the
FASTrAC is a matter of significant public interest, as the integrity, freedom, and fairness of
automated elections depend largely on the AES to be utilized. In addition, the Petition
presents the Court with an opportunity to further define the scope of the GPRA, as well as
the duty of all government branches and instrumentalities to comply with this law and its
2016 Revised IRR. Thus, Smartmatic's failure to file a motion for reconsideration of the
assailed Resolution will not prevent this Court from exercising jurisdiction over this Petition.

Next, we resolve Smartmatic's prayer for the issuance of a TRO and/or writ of preliminary
injunction and SQAO.

A writ of preliminary injunction is defined as:

. . . "an order granted at any stage of an action or proceeding prior to the judgment
or final order, requiring a party or a court, agency or a person to refrain from a
particular act or acts. It may also require the performance of a particular act or
acts, in which case it shall be known as a preliminary mandatory injunction." It is
aimed to "[p]revent threatened or continuous irremediable injury to some of the
parties before their claims can be thoroughly studied and adjudicated. Its sole aim
is to preserve the status quo until the merits of the case can be heard fully."[108]
(Citations omitted)

The requisites for the issuance of a writ of preliminary injunction are: (a) the applicant must
have a clear and unmistakable right to be protected, that is, a right in esse; (b) there is a
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material and substantial invasion of such right; (c) there is an urgent need for the writ to
prevent irreparable injury to the applicant; and, (d) no other ordinary, speedy, and adequate
remedy exists to prevent the infliction of irreparable injury.[109] Where there is doubt or
dispute as to the plaintiff's right, a preliminary injunction should not issue, as the possibility
of irreparable damage to the plaintiff, absent proof of an actual existing right, does not
warrant the issuance of a writ of preliminary injunction.[110]

In this case, Smartmatic failed to establish the elements of a right in esse and irreparable
injury.

First, Smartmatic does not have a right in esse which the Court may enforce by issuing a
TRO and/or writ of preliminary injunction.

In Amalgamated Motors Philippines, Inc. v. Secretary of the Department of Transportation

and Communications,[111] the Land Transportation Office published an Invitation to Bid for
the procurement of driver's license cards. Petitioner Amalgamated Motors Philippines, Inc.
(AMPI) purchased the bidding documents and terms of reference for the bid.[112] However,
certain issues arose and respondent Department of Transportation and Communications
(DOTC) created a Special Bids and Awards Committee, which published a new Invitation to
Bid.[113] Interested parties who purchased the original bid documents, such as AMPI, would
be issued the new bid documents upon presentation of their receipts for the previous
documents.[114]

AMPI questioned the validity of the DOTC's proceedings before the Regional Trial Court
(RTC), which granted AMPI's application for a writ of preliminary injunction.[115] On
certiorari to the Court of Appeals (CA), however, the CA reversed the RTC and held that
AMPI failed to establish any clear and unmistakable right that would justify injunctive relief.
[116]

The Supreme Court affirmed the CA, ruling that AMPI was merely a prospective bidder
whose alleged right was, at best, merely speculative.[117] The Court also rejected AMPI's
contention that, as the current supplier of driver's license cards, it had sufficient legal interest
and a real right regarding the proper implementation of procurement laws.[118] There was no
urgent need for the writ to prevent irreparable injury to AMPI as it could still participate in
the bidding process, and AMPI failed to substantiate its contention that it stood to lose
billions of pesos, which in any event, is a form of damage easily capable of mathematical
computation.[119]

Similar to Amalgamated Motors Philippines, Inc., Smartmatic is merely a prospective bidder

in the COMELEC's procurement of the lease of FASTrAC for the 2025 NLE. As such,
Smartmatic is bereft of any "actual, clear, and positive right"[120] that would warrant the
issuance of an injunctive order.

It must be stressed that any hint of doubt or dispute on the asserted legal right precludes the
grant of preliminary injunctive relief.[121] The prevailing rule is that the courts should avoid
issuing a writ of preliminary injunction that would in effect dispose of the main case without
trial; otherwise, there would be a prejudgment of the main case and a reversal of the rule on
the burden of proof.[122] In this case, it is precisely Smartmatic's alleged right not to be
disqualified prior to the evaluation of its bid that is at the heart of the dispute. Such being the
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case, granting Smartmatic's application for injunctive relief would have preempted the
Court's ruling on the principal issue raised in the Petition.

Second, the element of irreparable injury is absent.

To bolster its claim of irreparable injury, Smartmatic cites Evy Construction and
Development Corp. v. Valiant Roll Forming Sales Corp.,[123] where the Court stated that:

Injury is considered irreparable if "there is no standard by which [its] amount can

be measured with reasonable accuracy." The injury must be such that its
pecuniary value cannot be estimated, and thus, cannot fairly compensate for the
loss. For this reason, the loss of goodwill and business reputation, being
unquantifiable, would be considered as grave and irreparable damage.[124]
(Emphasis supplied, citations omitted)

However, Article 2205 of the Civil Code provides that damages may be awarded for injury to
a plaintiff's business standing or commercial credit. The amount of temperate damages to be
awarded is usually left to the discretion of the courts, but the same should be reasonable.[125]

In Tanay Recreation Center and Development Corp. v. Fausto,[126] the Court explained the
application of Article 2205 of the Civil Code to awards of temperate damages:

An award of damages for loss of goodwill or reputation falls under actual or

compensatory damages as provided in Article 2205 of the Civil Code, to wit:

Art. 2205. Damages may be recovered:

(1) For loss or impairment of earning capacity in cases of temporary

or permanent personal injury;

(2) For injury to the plaintiff's business standing or commercial

credit.

Even if it is not recoverable as compensatory damages, it may still be awarded in

the concept of temperate or moderate damages. In arriving at a reasonable level of
temperate damages to be awarded, trial courts are guided by the ruling that:

. . . There are cases where from the nature of the case, definite proof of
pecuniary loss cannot be offered, although the court is convinced that
there has been such loss. For instance, injury to one's commercial
credit or to the goodwill of a business firm is often hard to show
certainty in terms of money. Should damages be denied for that
reason? The judge should be empowered to calculate moderate
damages in such cases, rather than that the plaintiff should suffer,
without redress from the defendant's wrongful act.[127] (Emphasis
supplied, citation omitted)

Smartmatic's own citation of Evy Construction and Development Corp. is misplaced. In that
case, the Court upheld the RTC's denial of the petitioner's application for the issuance of a
temporary restraining order and writ of preliminary injunction, declaring that the grant of

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injunctive relief could operate as a prejudgment in the main case and that the possible
damage claimed by the petitioner could be compensated with an award of damages:

As in Spouses Chua, respondent's attachment liens dated September 18, 2007,

October 2, 2007, and November 8, 2007, if valid, may have been superior to
whatever right petitioner may have acquired by virtue of the Deed of Absolute
Sale, which was only registered on November 20, 2009. However, the validity of
the liens and the validity of the Deed of Absolute Sale are factual matters that
have yet to be resolved by the trial court. The trial court must also determine
whether or not respondent had prior knowledge of the sale.

Thus, no injunctive writ could be issued pending a final determination of

petitioner's actual and existing right over the property. The grant of an injunctive
writ could operate as a prejudgment of the main case.

....

Thus what petitioner actually seeks is the removal of the annotations on its title,
which is precisely what it asked for in its Complaint for Quieting of Title/Removal
of Cloud, Annulment of Execution Sale and Certificate of Sale, and Damages
before the trial court. Injunctive relief would have no practical effect considering
that the purported damage it seeks to be protected from has already been done.
Therefore, its proper remedy is not the issuance of an injunctive writ but to thresh
out the merits of its Complaint before the trial court.

....

The trial court, in the exercise of its discretion, denied petitioner's application for
the issuance of a temporary restraining order and writ of preliminary injunction
on the ground that petitioner would still have sufficient relief in its prayer for
damages in its Complaint. In the event that the annotations on petitioner's title are
found by the trial court to be invalid, petitioner would have adequate relief in the
removal of the annotations and in the award of damages. Therefore, the trial court
acted within the bounds of its discretion.[128] (Emphasis supplied, citations
omitted)

In the same manner, the proper remedy here "is not the issuance of an injunctive relief, but to
thresh out the merits" of Smartmatic's claim.

Even granting that injury to business reputation or goodwill is indeed irreparable for the
purpose of injunctive relief, Smartmatic failed to substantiate its claim that it stands to suffer
such injury. In its Petition, Smartmatic describes its alleged injury as follows:

To reiterate, Smartmatic was disqualified and blacklisted from the 2025 AES bid
even prior to the SBAC's examination of its bidding documents and without
compliance with the procedure outlined in R.A. 9184 and its IRR. Worse, the sole
basis for Smartmatic's disqualification and blacklisting [by] the COMELEC is an
unrelated and foreign issue which is clearly not a ground under R.A. 9184 and its
IRR. Smartmatic has thus been deprived of its right to participate in the 2025
AES bid based on an unresolved and unsubstantiated issue and following an
extralegal procedure outside of R.A. 9184 and its IRR.

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Thereafter, as soon as the Assailed Resolution was issued, media reports started
spreading false imputations against Smartmatic.

To illustrate, COMELEC's specific targeting of Smartmatic becomes more

apparent through Chairman Garcia['s] public denunciations of Smartmatic's
integrity to participate in the 2025 AES. Chairman Garcia described the move to
disqualify Smartmatic as a decision to "maintain the integrity of our electoral
process." Chairman Garcia clothed the move to disqualify Smartmatic in patriotic
undertones, stating that the disqualification was "Para sa Bayan." Undoubtedly,
the disqualification of Smartmatic, together with the statements of the Chairman
of the COMELEC, sends the message to the public that Smartmatic has been
engaging in irregular activities that affected the results of the previous NLE, to
the extreme prejudice of Smartmatic as a company.

Further, the COMELEC in issuing the Assailed Resolution and blacklisting

Smartmatic from participating in the bidding for the 2025 AES, placed credibility
on the unsubstantiated and unresolved allegation of bribery charges against
Smartmatic and deemed the same true, or at least worthy of consideration to be
deemed truthful. Such an acknowledgment by the COMELEC, being a
constitutional body, would naturally be given great weight not only by the public
but also by other government bodies with whom Smartmatic may have dealings
with [sic], whether presently or in the future. Hence, such a serious imputation,
acknowledged by the COMELEC as somehow truthful, causes grave injury to
Smartmatic's goodwill and reputation.[129] (Emphasis supplied)

The above arguments focus on the purported wrongful actions of Chairperson Garcia and the
COMELEC En Banc, without elaborating on the exact nature and scope of the supposed
"grave injury to Smartmatic's goodwill and reputation" or the "extreme prejudice" that
Smartmatic allegedly suffered. In effect, Smartmatic asks the Court to assume that the
COMELEC's actions will cause injury to Smartmatic's goodwill and business reputation,
without providing any evidence of the existence or possibility of such injury.

Neither did Smartmatic establish the need for an SQAO, which has been described as:

. . . "an interlocutory [order] created by the Supreme Court En Banc to afford

remedies to parties" and for "compelling reasons that cater to the demands of
justice and equity." As such, the issuance of an SQAO is not governed by any
special rule, unlike restraining orders and injunctive writs. In issuing an SQAO,
the Court primarily considers the following factors: (i) justice and equity
considerations; (ii) when conservation of the status quo is desirable or essential:
(iii) the [prevention] of any serious damage: and (iv) where constitutional issues
are raised.[130] (Emphasis supplied)

The discussion on Smartmatic's prayer for a writ of preliminary injunction applies with equal
force to Smartmatic's prayer for an SQAO. The damage that Smartmatic may suffer from its
disqualification is compensable, and there are no justice or equity considerations that
necessitate the issuance of an SQAO.

Finally, We reject the COMELEC's contention that the Petition has been rendered moot and
academic with the COMELEC's award of the 2025 FASTrAC Contract to Miru Systems.

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In Province of Maguindanao del Norte v. Bureau of Local Government Finance,[131] the

Court explained that a case is moot if it ceases to present a justiciable controversy because of
the supervening events such that a declaration thereon would be of no practical use or value.
[132]

To recall, the assailed Resolution disqualified Smartmatic from "participating in any public
bidding process for elections."[133] Contrary to the COMELEC's position, the COMELEC's
award of the 2025 FASTrAC Contract to Miru Systems does not render the Petition moot,
because the COMELEC disqualified Smartmatic from participating in any public bidding
process for elections, not just in the bidding for the AES to be deployed in the 2025 NLE.

Having disposed of the COMELEC's procedural contentions, We now turn to the substance
of the dispute.

In resolving the Petition, the Court will not consider the merits of the criminal complaint
against Bautista or weigh the truth or falsity of Rio, Jr. et al.'s allegations of irregularities in
the 2022 NLE. Such matters are beyond the scope of these proceedings. The issue before the
Court is simple: Did the COMELEC En Banc act with grave abuse of discretion amounting
to lack or excess of jurisdiction in disqualifying Smartmatic, a prospective bidder, in a
manner contrary to the GPRA and its 2016 Revised IRR?

Smartmatic contends that in issuing the assailed Resolution, the COMELEC deviated from
the procedure for disqualification and blacklisting under the GPRA and its 2016 Revised
IRR. The COMELEC does not dispute this contention or claim that it complied with the
GPRA; instead, the COMELEC maintains that the GPRA is inapplicable to its
disqualification of Smartmatic, which was based on its broad constitutional mandate to
enforce and administer all laws relating to elections.

The Court is guided by the following definition of grave abuse of discretion, which is the
sole standard of review in petitions for certiorari:

[T]he sole office of a writ of certiorari is the correction of errors of jurisdiction

including the commission of grave abuse of discretion amounting to lack of
jurisdiction. A court or tribunal is said to have acted with grave abuse of
discretion when it capriciously acts or whimsically exercises judgment to be
"equivalent to lack of jurisdiction." Furthermore, the abuse of discretion must be
so flagrant to amount to a refusal to perform a duty or to act as provided by law.
[134]

We find that the COMELEC En Banc acted with grave abuse of discretion when it rendered
the assailed Resolution in disregard of the GPRA and its 2016 Revised IRR. The
COMELEC's constitutional mandate does not permit it to cast aside procurement laws and
regulations, and impose its own pre-qualification regime, disqualifying an interested private
contractor prior to the latter's submission of its bid and the SBAC's evaluation of its
eligibility documents.

At the outset, Smartmatic's claim that it was denied due process lacks merit. Granting that it
was Smartmatic PH, and not Smartmatic TIM, that was impleaded before the COMELEC En
Banc, Smartmatic TIM was also able to participate in the proceedings before the COMELEC
En Banc,[135] and is now one of the petitioners before the Court. In addition, the issues
relating to the investigation by the US DOJ against Bautista were not introduced for the first
time in the assailed Resolution; rather, as pointed out by the COMELEC En Banc in its
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Comment, they were first mentioned in Rio, Jr. et al.'s Motion for Early Resolution filed
before the COMELEC En Banc[136] and later repeated in Rio, Jr. et al.'s Memorandum.[137]

Accordingly, the COMELEC En Banc did not violate Smartmatic's right to due process.

Under the GPRA, procurement by the national government, its departments, bureaus, offices
and agencies, including state universities and colleges, government-owned and/or -controlled
corporations, government financial institutions and local government units, shall, in all cases,
be governed by the following principles: transparency in procurement and implementation;
competitiveness, by extending equal opportunity to eligible and qualified private contractors;
a streamlined and uniform procurement process; accountability; and monitoring of the
procurement process and the implementation of awarded contracts.[138]

In Estrella v. Commission on Audit,[139] the Court explained the purpose of the GPRA as
follows:

RA No. 9184 was enacted to promote transparency in the procurement process

and implementation of contracts, as well as to provide a platform of
competitiveness by extending equal opportunity to enable private contracting
parties who are eligible and qualified to participate in public bidding . . . .
Competitive public bidding aims to protect the public interest by giving the public
the best possible advantages through open competition, and to preclude
suspicion of favoritism and anomalies in the execution of public contracts.
Thus, the BAC was tasked to "advertise and/or post the invitation to bid, conduct
pre-procurement and pre-bid conferences, determine the eligibility of prospective
bidders, receive bids, conduct the evaluation of bids, undertake post-qualification
proceedings, [and] recommend award of contracts."[140] (Emphasis supplied,
citations omitted)

To this end, and by its plain language, the GPRA applies to the procurement of infrastructure
projects, goods, and consulting services, regardless of source of funds, whether local or
foreign, by all branches and instrumentalities of government, its departments, offices, and
agencies, including government-owned and/or -controlled corporations and local
government units.[141] Where the words of a statute or the 1987 Constitution are clear, plain,
and free from ambiguity, they must be given their literal meaning and applied without
attempted interpretation.[142] The GPRA does not include any exceptions for the COMELEC
or any other branch or instrumentality of government, and it is not for the Court to judicially
legislate any such exception.

Under the GPRA, the general rule is that procurement by all branches and instrumentalities
of government must be done by public bidding.[143] The requirement of public bidding in
government contracts is not an idle ceremony, but a requirement designed to protect the
public interest by ensuring a method that arrives at the most fair and reasonable price for the
government.[144] In this regard, administrative rules and regulations governing procurement
are enacted for strict and faithful compliance to protect the government coffers from
unscrupulous transactions.[145] The laudable purposes of public bidding will be undermined
if bidders and prospective bidders are placed on unequal playing fields. Thus, the Court has
held that:

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Case law states that competition requires not only bidding upon a common
standard, a common basis, upon the same thing, the same subject matter, and the
same undertaking, but also that it be legitimate, fair and honest and not designed
to injure or defraud the government. The essence of competition in public bidding
is that the bidders are placed on equal footing which means that all qualified
bidders have an equal chance of winning the auction through their bids. Another
self-evident purpose of competitive bidding is to avoid or preclude suspicion of
favoritism and anomalies in the execution of public contracts.[146] (Emphasis
supplied)

To ensure an equal playing field and to minimize the procuring entity's exercise of discretion,
the GPRA provides that the eligibility of bidders is determined by the BAC, based on the
bidders' compliance with the eligibility requirements provided in the invitation to bid:

SEC. 23. Eligibility Requirements for the Procurement of Goods and

Infrastructure Projects. – The BAC or, under special circumstances specified in
the IRR, its duly designated organic office shall determine the eligibility of
prospective bidders for the procurement of Goods and Infrastructure Projects,
based on the bidder's compliance with the eligibility requirements within the
period set forth in the Invitation to Bid. The eligibility requirements shall provide
for fair and equal access to all prospective bidders. The documents submitted in
satisfaction of the eligibility requirements shall be made under oath by the
prospective bidder or by his duly authorized representative certifying to the
correctness of the statements made and the completeness and authenticity of the
documents submitted.

A prospective bidder may be allowed to submit his eligibility requirements

electronically. However, said bidder shall later on certify under oath as to
correctness of the statements made and the completeness and authenticity of the
documents submitted. (Emphasis supplied)

As reflected by the discussions of the Senate Committee on Constitutional Amendments,

Revision of Codes and Laws, the evaluation of bids based solely on the bidding documents
submitted in compliance with the procuring entity's published requirements is integral to the
GPRA's goal of minimizing the exercise of discretion by the procuring entity:

MR. CAMPOS. As long as the requirements are published in the invitation to bid
so that everyone knows exactly what is expected of them, it becomes much
harder for discretion to creep in, Mr. Senator. Because nandoon na, nakalagay
na, everyone knows eh na iyon ang requirements, one to ten.[147] (Emphasis
supplied)

Further:

MR. CAMPOS. The third major project area is the use of -- the existence of
wide discretion among the Bids and Awards Committee members. There has
been quite a few problems in the past regarding TROs on contracts that have been
awarded by government. And when we looked into this, a good deal of the
problem have to do with the fact that the ratings of the technical requirements and
the price or financial requirements are mixed together. In other words, what
you're really saying is, you can trade off quality for price. So you know, in a
number of, let's say, case, controversial cases in the past, you'll have the situation
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where the lowest bidder basically filed a case, the one who had the lowest price
and the agency basically awarded the contract to the bidder with the second
lowest price and argue that he had a better quality. Now the problem here is how,
you know, there is discretion on how much more you weigh quality relative to
price and whenever you can use this, you really open yourself up to
opportunities for corruption and as well as opportunities for situations where you
may end up with [a] temporary restraining order that stops the contract on its
heels, and basically, instead of having it done in three months, three years will
pass and still you don't have a contract.[148] (Emphasis supplied)

The following discussions of the House of Representatives Committee on Appropriations

lead to the same conclusion:

The [Chairperson]: . . . So, we drafted this procurement bill specifically to

reduce or to [stamp] out corruption in the government, specifically in the
procurement phase of government. The problems encountered by the
government in its procurement are, namely, collusion and lack of competition,
wide discretion given to certain officials or members of the Bids and Awards
Committee, the lack of transparency and, of course, delays. Now, to counter all
these problems, we've come up with a single bill which would standardize the
procurement process in the government. So meaning to say, isa na lang ho ang
procurement process na susundan ng ating gobyerno.

You would notice at the present practice na ang procurement process ng, let's say,
Dep Ed would be different from the rules as practiced by the DOTC. Wala na ho
yan if this bill comes to life. We will only have one set of rules which would be
applied not only to the national government, not only to the executive, to the
judiciary but likewise it would apply to the local government units as well as the
GOCCs.

So yong major features ho ng bill na ito, unang-una ang problema is the lack of
competition and collusion. To counter this, we have incorporated in the bill a
streamlined pre-qualification process na we are now veering away from yong
pre-qualification and we are now emphasizing a post qualification process. Ibig
sabihin ho in layman's terms, dahil at present ho, we noticed that sa pre-
qualification pa lang eh nagkakatalo-talo na tayo. Allow me to speak frankly,
bluntly. So minsan ho sa pre-qualification pa lang, pag-submit pa lang yong
documents, sometimes we encounter a lot of delays and corruption. So dito sa bill
na ito, we are veering away from pre-qualification and we will emphasize
eligibility check. So that if a prospective bidder would want to join or would like
to bid for a particular project, all he has to do is submit certain documents
which the government would post. So alam na ho nun lahat ng prospective
bidders kung ano yung kailangan nilang documents na i-submit at pagna-meet ho
nila yon, na-submit nila lahat ang kailangan na dokumento, automatically, they
are qualified to bid.[149] (Emphasis supplied)

The practice of the GPPB confirms that the evaluation of bids must be based solely on non-
discretionary criterion applied to the bidding documents in order to minimize the exercise of
discretion by the procuring entity.

Under the contemporaneous construction rule, the practice and interpretive regulations by
officers, administrative agencies, departmental heads, and other officials charged with the
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duty of administering and enforcing a statute will carry great weight in determining the
operation of a statute.[150] As the GPPB is the executive agency charged with the duty of
administering and enforcing the GPRA, its administrative opinions carry great weight with
the Court in understanding the post-qualification regime prescribed by the GPRA.

Explaining the import of Section 23 of the GPRA, the GPPB has described the BAC's duty to
determine the bidders' eligibility and qualifications as follows:

[T]he BAC shall use non-discretionary pass/fail criterion in determining the

bidder's eligibility and qualifications to participate and be awarded a contract. It
means that such determination shall be based solely on the requirements and
conditions indicated in the IRR of RA 9184 and the corresponding Bidding
Documents. The purpose is to remove any form of discretion on the part of the
BAC and thereby promote fairness and equality among all bidders. Essentially,
the BAC, in determining the eligibility of the bidders, cannot act whimsically,
capriciously or arbitrarily out of malice, ill will or personal bias as this would be
tantamount to grave abuse of discretion.[151] (Emphasis supplied, citation
omitted)

The GPPB also opined that an accreditation system, which limits participation in bids to an
agency's "accredited suppliers," is contrary to the GPRA, as such an accreditation system
contradicts the basic principles of competitive bidding. In GPPB NPM No. 033-2011, the
GPPB stated:

[T]he enactment of RA 9184 brought about major reforms in the procurement

system, the most significant of which is the use of competitive bidding in all
government procurement as a matter of policy. Consequently, the creation of an
accreditation system is not in accordance with the mandate of the present
procurement law because it in fact contravenes the very basic principles of
competitive bidding. As it was previously discussed in Non-Policy Matter 28-
2005, the establishment of an accreditation system within the agency would limit
the participation of bidders only to the accredited suppliers, to the exclusion and
prejudice of the bidders in the market.[152] (Emphasis supplied, citation omitted)

In GPPB NPM No. 054-2017, the GPPB made a similar statement regarding the
incompatibility of a pre-qualification regime with the GPRA's open competition policy:

[A]ccreditation, or even a pre-qualification exercise, is not a requisite to

participate in Government Procurement as it contravenes the very basic principles
of competitive bidding. The pre-qualification regime or accreditation brings
about a situation where only those who are pre-qualified or accredited will be
allowed to bid, which is antithetical to the concept of competition, where all
eligible market operators will be allowed to participate whether they have been
pre-qualified/accredited or not, thereby opening the procurement opportunity to
wider market participation to bring forth the best quality goods and services at
the best price.[153] (Emphasis supplied)

While the foregoing opinions speak of accreditation or pre-qualification systems and not
disqualification of a prospective bidder prior to bid submission, they emphasize that under
the GPRA, eligibility may be determined based solely on the documents submitted by a
bidder, and not on any pre-qualification procedure or accreditation or any other factor or
consideration prior to such bid submission.
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In choosing to disregard the procedures prescribed by the GPRA and its 2016 Revised IRR
and disqualifying Smartmatic before the latter had submitted any bid, without any reference
to the applicable eligibility requirements and non-discretionary pass/fail criteria prescribed
by the SBAC, the COMELEC implemented a discretionary pre-qualification regime
antithetical to the very essence of the GPRA. In doing so, the COMELEC committed grave
abuse of discretion amounting to lack or excess of jurisdiction.

The COMELEC's argument that its constitutional mandate permits non-compliance with the
GPRA and its 2016 Revised IRR is fallacious.

In Querubin,[154] the Court expressly held that the COMELEC is mandated to comply with
the GPRA in its procurement of supplies, equipment, materials, software, facilities, and other
services in relation to the implementation of the AES. In that case, the Court was tasked to
interpret Republic Act No. 8436,[155] or the Automated Elections Law, as amended by
Republic Act No. 9369,[156] or the Election Automation Law of 2007, authorizing the
COMELEC to adopt the AES for NLE. To this end, the law authorizes the COMELEC to
procure, "in accordance with existing laws,"[157] supplies, equipment, materials, software,
facilities, and other services.[158]

Citing Pabillo v. COMELEC,[159] the Court also held that the requirement to comply with
"existing laws" under the Automated Elections Law refers to the GPRA, which is:

. . . designed to govern all cases of procurement of the national government, its

departments, bureaus, offices and agencies, including state universities and
colleges, government-owned and/or-controlled corporations, government
financial institutions and local government units. It mandates that as a general
rule, all government procurement must undergo competitive bidding and for
purposes of conducting the bidding process, the procuring entity convenes a
BAC.[160] (Emphasis supplied)

This express judicial admonition further underscores the gravity of the COMELEC's error in
choosing to disqualify Smartmatic, in defiance of the procedures under the GPRA and its
2016 Revised IRR. Indeed, the COMELEC's duty to comply with the GPRA and its 2016
Revised IRR in its procurement activities has already been recognized by the Court, and the
COMELEC cannot cite its constitutional mandate to justify non-compliance with existing
procurement laws and regulations.

The COMELEC also insists that "it would be the height of negligence for the COMELEC to
simply await Smartmatic's possible disqualification, suspension, or blacklisting."[161]

Contrary to the COMELEC's protestations, however, compliance with a statutory duty is not
negligence. In any event, and to allay the COMELEC's concerns regarding the need to
protect the integrity of elections, the GPRA and its 2016 Revised IRR permit a procuring
entity to disqualify a bidder at any stage of the procurement process for several reasons,
including misrepresentation in its bidding documents.

Section 25.3, 2016 Revised IRR, requires every bidder or its duly authorized representative
to execute an Omnibus Sworn Statement stating, among others, that the bidder "did not give
or pay, directly or indirectly, any commission, amount, fee, or any form of consideration,
pecuniary or otherwise, to any person or official, personnel or representative of the
government in relation to any procurement project or activity."
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On the other hand, Section 23.6, 2016 Revised IRR, provides:

Notwithstanding the eligibility of a bidder, the Procuring Entity concerned

reserves the right to review the qualifications of the bidder at any stage of the
procurement process if the Procuring Entity has reasonable grounds to believe
that a misrepresentation has been made by the said bidder, or that there has been
a change in the bidder's capability to undertake the project from the time it
submitted its eligibility requirements. Should such review uncover any
misrepresentation made in the eligibility requirements, statements or documents,
or any changes in the situation of the bidder which will affect the capability of the
bidder to undertake the project so that it fails the eligibility criteria, the Procuring
Entity shall consider the said bidder as ineligible and shall disqualify it from
obtaining an award or contract, in accordance with Rules XXI, XXII, and XXIII
of this IRR. (Emphasis supplied)

It is clear from these provisions that a procuring entity has a remedy when it has reasonable
grounds to believe that a bidder misrepresented its qualifications in its bidding documents
and obtained a government contract through corrupt practices.

If Smartmatic had been permitted to submit a bid, its bidding documents would have
included an Omnibus Sworn Statement stating that it "did not give or pay, directly or
indirectly, any commission, amount, fee, or any form of consideration, pecuniary or
otherwise, to any person or official, personnel or representative of the government in relation
to any procurement project or activity." The COMELEC, as the procuring entity, could have
disqualified Smartmatic if, in its view, it had reasonable grounds to believe that Smartmatic's
declaration in its Omnibus Sworn Statement was a misrepresentation, and that it is one of the
unnamed corporations mentioned in the criminal complaint against Bautista. However, the
COMELEC's knowledge of the said criminal complaint does not, in itself, give the
COMELEC carte blanche to disqualify Smartmatic in violation of the procedure under the
GPRA and its 2016 Revised IRR. Article IX-C, Section 2(1) of the Constitution authorizes
the COMELEC to enforce and administer all laws and regulations relative to the conduct of
elections, plebiscites, initiatives, referenda, and recall—it does not permit the COMELEC to
cast aside the GPRA and its 2016 Revised IRR in favor of its own discretionary procurement
process.

In so ruling, the Court does not weigh the merits of the US DOJ's allegations against
Bautista. The Court merely notes that under the GPRA and its 2016 Revised IRR, the
COMELEC would not have been compelled to accept the bid of a bidder which it has
reasonable grounds to believe committed misrepresentation in its bidding documents and
engaged in corrupt activities to secure a previous government contract.

Having declared that the COMELEC acted with grave abuse of discretion in disqualifying
Smartmatic, We now determine the effects of this declaration.

To recall, the SBAC has completed the bidding process for the lease of FASTrAC for the
2025 NLE and the COMELEC has awarded the 2025 FASTrAC Contract to Miru Systems.
[162] Thus, an order requiring the COMELEC to instruct the SBAC to accept Smartmatic's
bid would be an exercise in futility, as there is no ongoing public bidding for FASTrAC in
which Smartmatic may participate.

For reasons of equity, justice, and practicality, neither can the Court nullify the procurement
activities carried out by the SBAC and order the COMELEC to conduct public bidding anew.

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The COMELEC's assailed Resolution has produced consequences that the Court simply
cannot ignore, and the prospective application of the Court's Decision is the more prudent
recourse under the circumstances.

Relying on the assailed Resolution, the SBAC prevented Smartmatic and its related entities
from submitting a bid for the lease of FASTrAC and proceeded with the procurement
process, eventually determining that Miru Systems was the bidder with the Single Calculated
Responsive Bid and recommending that the COMELEC award Miru Systems the 2025
FASTrAC Contract.[163] As a result, the COMELEC issued the Notice of Award to Miru
Systems, and executed the 2025 FASTrAC Contract with Miru Systems.[164]

Notably, the records are bereft of any allegation of irregularity in the SBAC's conduct of the
public bidding other than its refusal to accept the bid of Smartmatic's related entities. For the
Court to turn a blind eye to the proceedings subsequent to the COMELEC En Banc's assailed
Resolution would result in an unjust outcome for Miru Systems, which was awarded the
2025 FASTrAC Contract after the SBAC reviewed its bidding documents and conducted
post-qualification in accordance with the GPRA.

It is also worth noting that details of the bid submitted by Miru Systems are publicly
available.[165] If another round of public bidding were to be conducted, Smartmatic and other
prospective bidders would no longer be on equal footing. Such a situation is contrary to the
GPRA's requirement of competitive public bidding.

In addition, nullification of the SBAC's proceedings and the 2025 FASTrAC Contract would
gravely undermine the COMELEC's preparations for the 2025 NLE.

The COMELEC's Implementation Calendar for the May 12, 2025 National and Local
Elections[166] provides the following timeline:

ACTIVITIES START END

....
11. Testing of systems/Application or 01 Apr 2024 31 Oct 2024
laboratory test (including corrections (Mon) (Thu)
and modifications by provider and
VAPT for OVCS
12. Delivery of final systems for 01 Aug 2024 30 Oct 2024
FASTrAC and OVCS (Thu) (Wed)
13. Conduct of Local Source Code 01 Aug 2024 15 Jan 2025
Review (Starting with Base Code) (Thu) (Wed)
14. TEC Systems Certification for 01 Aug 2024 11 Feb 2025
FASTrAC, OVCS, and SETS (Thu) (Tue)
15. Filing of COC and CONA of 01 Oct 2024 07 Oct 2024
Candidates, Con-Can of Party-List (Tue) (Mon)
Groups and Preparation of the List of
Candidates for All Positions
16. Finalization of the Project of 16 Dec 2024 (Mon)
Precincts (POP)
17. Execution of Secure Electronic 01 Oct 2024 30 Dec 2024
Transmission System (SETS) (Tue) (Mon)

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19. [sic] Random Manual Audit 01 Oct 2024 30 June 2025

Preparatory Activities until Actual RMA (Tue) (Mon)
20. Conduct of Field Test (AES, OVCS, 30 Nov 2024 (Sat)
and SETS)
21. Conduct public demonstrations of 18 Dec 2024 30 Apr 2025
the ACMs, OVCS and SETS (Wed) (Wed)
22. Recruitment and Conduct of 28 Oct 2024 09 May 2025
Trainings for FASTrAC, OVCS and (Mon) (Fri)
SETS
23. Conduct of Mock Election (AES, 28 Dec 2024 (Sat)
OVCS and SETS)
24. Preparation of Packing Lists for 18 Dec 2024 30 Apr 2025
Election Forms and Supplies (Wed) (Wed)
25. Installation of FTB version of the 18 Dec 2024 10 Feb 2025
ACM System, CCS, OVCS, SETS (Wed) (Mon)
Application
26. Creation of Digital Ballots, Ballot 20 Dec 2024 21 Apr 2025
Faces and Machines configuration and (Fri) (Mon)
testing for FASTrAC and OVCS
27. Printing of Accountable and Non- 01 Aug 2024 25 Apr 2025
Accountable Forms (Thu) (Fri)
28. Election Period 01 Oct 2024 11 June 2025
(Tue) (Wed)
29. Constitution of Electoral Boards, 02 Jan 2025 31 Jan 2025
and BOCs, SBRCGs, SBEIs and (Thu) (Fri)
SBOCs
30. Pre-Election Logic & Accuracy Test 27 Jan 2025 30 Apr 2025
(PRE-LAT) (Mon) (Wed)
31. Pre-registration of overseas voters 12 Feb 2025 12 May 2025
for OVCS (Wed) (Mon)
32. Deployment of equipment, forms 15 Feb 2025 5 May 2025
and paraphernalia for Overseas and (Sat) (Mon)
Local
33. Final Testing and Sealing
34. Sealing and lockdown of servers in 10 Jan 2025 05 May 2025
the data center (Fri) (Mon)
35. Voting Period for Overseas 13 Apr 2025 12 May 2025
(Mon) (Sun)
36. Election day 12 May 2025 (Mon)
37. Count precinct results 12 May 2025 13 May 2025
(Mon) (Tue)
38. Canvass precinct results 13 May 2025 25 May 2025
(Tue) (Sun)
39. Post Election Activities 13 May 2025 31 Dec 2025
(Tue) (Wed)

As shown above, preparing for the NLE is a complex and time-consuming endeavor, and the
COMELEC's procurement of the AES is only one component of its preparations for the 2025
NLE. As stated by Senior Associate Justice Marvic M.V.F. Leonen in his Concurring Opinion
in Macalintal v. Commission on Elections:[167]
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The conduct of elections requires meticulous assessment and logistical planning,

such as the preparing and procuring election paraphernalia and services,
registering voters, processing certificates of candidacies of those seeking to run
for public office, installing polling booths, training personnel, and monitoring
election offenses, among others. The conduct of elections entails expenditures and
therefore, the release of public funds to various stakeholders ahead of the date of
elections.[168] (Emphasis supplied)

To require the COMELEC to conduct another round of public bidding for the FASTrAC
would seriously disrupt its preparations and potentially jeopardize the conduct of the 2025
NLE. While the COMELEC committed grave abuse of discretion in disqualifying
Smartmatic from participating in any public bidding for elections, the Court will not
compound the COMELEC's error just to enable Smartmatic to submit a bid for the 2025
FASTrAC. Considerations of equity, justice, and practicality forestall such a pronouncement.

In this regard, the doctrine of operative fact applies by analogy to the present controversy.

Generally, a void or unconstitutional law produces no legal effect. The doctrine of operative
fact serves as an exception to the general rule and applies only in situations where the
nullification of the effects of a law prior to its declaration of invalidity will result in inequity
and injustice.[169] This doctrine exhorts that until the judiciary declares the invalidity of a
certain legislative or executive act, such act is presumed constitutional and valid.[170]

The doctrine of operative fact applies to both legislative and executive acts. In Araullo v.
Aquino,[171] the Court declared unconstitutional the Disbursement Acceleration Program
(DAP), which included the declaration of unutilized appropriations (in the form of
unobligated allotments and unreleased appropriations) as savings, the transfer of savings
from the Executive branch to other offices outside the Executive branch, and the use of
unprogrammed funds without a Treasury certification of windfall revenue collections.
However, the Court applied the doctrine of operative fact to programs, activities, or projects
funded through the DAP that could no longer be undone, and whose beneficiaries relied in
good faith on the validity of the DAP. In so doing, the Court described the doctrine of
operative fact as follows:

The doctrine of operative fact recognizes the existence of the law or executive act
prior to the determination of its unconstitutionality as an operative fact that
produced consequences that cannot always be erased, ignored or disregarded. In
short, it nullifies the void law or executive act but sustains its effects. It provides
an exception to the general rule that a void or unconstitutional law produces no
effect. But its use must be subjected to great scrutiny and circumspection, and it
cannot be invoked to validate an unconstitutional law or executive act, but is
resorted to only as a matter of equity and fair play. It applies only to cases where
extraordinary circumstances exist, and only when the extraordinary
circumstances have met the stringent conditions that will permit its application.
[172] (Emphasis supplied, citations omitted)

In Macalintal,[173] petitioners challenged the validity of Republic Act No. 11935,[174] which
scheduled synchronized barangay and sangguniang kabataan elections on the last Monday of
October 2023 and every three years thereafter. In that case, the Court declared Republic Act
No. 11935 unconstitutional for violating the constitutional prohibition on the transfer of
appropriations and for arbitrarily overreaching the exercise of the rights of suffrage, liberty,
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and expression. However, the Court applied the doctrine of operative fact, recognizing that
Republic Act No. 11935 had consequences and effects relating to the holding of elections
that could not simply be ignored:

Simply put, the operative fact doctrine operates on reasons of practicality and
fairness. It recognizes the reality that prior to the Court's exercise of its power of
judicial review that led to the declaration of nullity, the combined acts of the
legislative and executive branches carried the presumption of constitutionality
and regularity that everyone was obliged to observe and follow. And, in
pursuance thereof, certain actions, private and official, may have been done
which would be unjust and impractical to reverse.

....

Proceeding from the foregoing premises, the Court is of the view that the actual
existence of RA 11935, prior to the judicial declaration of its unconstitutionality,
is an operative fact which has consequences and effects that cannot be ignored
and reversed as a matter of equity and practicality.

For one, the declaration of unconstitutionality of RA 11935 results in the revival

of RA 11462. The proviso of Section 1 thereof states that the BSKE "shall be
postponed to December 5, 2022" with the subsequent synchronized BSKE to be
"held on the first Monday of December 2025 and every three (3) years
thereafter." Since December 5, 2022 has already lapsed, it is evident that the
BSKE previously scheduled under RA 11462 can no longer proceed as such.
Following Section 1 of RA 11462, therefore, it is apparent that the BSKE will
have to be conducted "on the first Monday of December 2025" or close to seven
years from the date of the last BSKE — which was held in May 2018.

....

Another, December 5, 2022 had already lapsed without the BSKE scheduled
under RA 11462 having been held. Moreover, the COMELEC had taken steps
towards the preparation for the BSKE based on the schedule provided under RA
11935, i.e., in October 2023. Certainly, it cannot be denied that the consequences
of the postponement of the December 2022 BSKE pursuant to RA 11935 extend
beyond the mere change in the date of the said elections. In the interim, the BSKE
officials elected in May 2018 pursuant to RA 11462 continued to discharge the
duties and responsibilities of the office in a hold-over capacity pursuant to the
provisions of RA 11935. In turn, the people have relied on the actions undertaken
by them in the discharge of their functions as such officials, and have dealt with
the latter in good faith, believing in their authority to act.

Based on these circumstances, it is evident that a refusal to recognize the

consequences and effects of the existence of RA 11935 prior to its nullity — and
absolutely demand a return to the status quo as if the law had never existed —
will lead to an unnecessary and unwarranted application of the provisions of RA
11462 beyond the legislative intent.[175] (Emphasis supplied, citations omitted)

In Film Development Council of the Philippines v. Colon Heritage Realty Corp.,[176] the
Court laid down the following guidelines to determine the propriety of applying the doctrine
of operative fact:
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[I]n applying the doctrine of operative fact, courts ought to examine with
particularity the effects of the already accomplished acts arising from the
unconstitutional statute, and determine, on the basis of equity and fair play, if
such effects should be allowed to stand. It should not operate to give any
unwarranted advantage to parties, but merely seeks to protect those who, in good
faith, relied on the invalid law.[177] (Emphasis supplied)

In Hacienda Luisita, Inc. v. Presidential Agrarian Reform Council,[178] the Court rejected
the contention that the doctrine of operative fact is limited to invalid or unconstitutional laws
and executive issuances that are accorded the status of law or quasi-legislative in nature.
Instead, the Court forwarded a broader understanding of the doctrine:

Even assuming that De Agbayani initially applied the operative fact doctrine only
to executive issuances like orders and rules and regulations, said principle can
nonetheless be applied, by analogy, to decisions made by the President or the
agencies under the executive department. This doctrine, in the interest of justice
and equity, can be applied liberally and in a broad sense to encompass said
decisions of the executive branch. In keeping with the demands of equity, the
Court can apply the operative fact doctrine to acts and consequences that
resulted from the reliance not only on a law or executive act which is quasi-
legislative in nature but also on decisions or orders of the executive branch which
were later nullified. This Court is not unmindful that such acts and consequences
must be recognized in the higher interest of justice, equity and fairness.

Significantly, a decision made by the President or the administrative agencies has

to be complied with because it has the force and effect of law, springing from the
powers of the President under the Constitution and existing laws. Prior to the
nullification or recall of said decision, it may have produced acts and
consequences in conformity to and in reliance of said decision, which must be
respected. It is on this score that the operative fact doctrine should be applied to
acts and consequences that resulted from the implementation of the PARC
Resolution approving the SOP of HLI.[179] (Emphasis supplied)

While Hacienda Luisita, Inc. refers to decisions of the President or executive agencies, the
same reasoning applies with equal force to the COMELEC's assailed Resolution. The
COMELEC is an independent constitutional commission, and as such, its decisions "[have]
to be complied with because [they have] the force and effect of law, springing from the
powers of the [COMELEC] under the Constitution and existing laws," and these decisions
"may have produced acts and consequences in conformity to and in reliance of said
decision[s], which must be respected."[180]

In this case, the assailed Resolution led to the SBAC's conduct of the public bidding for the
FASTrAC without Smartmatic's participation, an act that must be respected. The grave abuse
of discretion committed by COMELEC is not, in itself, sufficient basis to nullify the
proceedings of the SBAC. Application of the doctrine of operative fact is therefore proper,
and the Court's Decision shall be prospective in application.

A final note. The present disposition is limited solely to the reversal of the COMELEC's
assailed Resolution on the ground that the COMELEC gravely abused its discretion in
violating the procedure for public bidding under the GPRA and its 2016 Revised IRR. The
Court does not weigh, much less resolve, the merits of the charges against Bautista and

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Smartmatic's alleged involvement in those charges. The Court's ruling in this case is without
prejudice to the outcome of any disqualification or blacklisting procedure that the
COMELEC or any other procuring entity might see fit to initiate against Smartmatic in the
future, in accordance with the procedures prescribed by the GPRA and its 2016 Revised IRR.

ACCORDINGLY, the instant Petition is GRANTED. The Resolution of the Commission on

Elections En Banc dated November 29, 2023 is REVERSED.

This ruling shall be PROSPECTIVE in application from the date of finality of this
Decision.

The prayer of petitioners Smartmatic TIM Corporation and Smartmatic Philippines, Inc. for a
temporary restraining order and/or writ of preliminary injunction and status quo ante order is
DENIED.

The Manifestation of Profuse Apology and Motion filed by the Commission on Elections is
NOTED.

SO ORDERED.

Gesmundo, C.J., Leonen, SAJ., Caguioa, Hernando, Lazaro-Javier, Inting, Zalameda, M.

Lopez, Gaerlan, Rosario, J. Lopez, Dimaampao, and Singh, JJ., concur.
Kho, Jr., J., with separate concurring opinion.

* Also referred to as "Leonardo Olivero Odoño" in some parts of the rollo.

[1] Republic Act No. 9184 (2003), Government Procurement Reform Act (GPRA).

[2]The 2016 Revised Implementing Rules and Regulations of Republic Act No. 9184
(Updated as of April 15, 2024).

[3] Rollo, pp. 3–82.

[4]Id. at 83–99. 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 COMELEC En Banc. Commissioner Aimee P. Ferolino filed a Separate Opinion.
See rollo, pp. 100–103.

[5] Id. at 16–18.

[6] Id. at 18.

[7] Id.

[8] Id. at 18–19.

[9] Id. at 19.

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[10] Id.

[11] Id. at 109–119.

[12] Id. at 154–160.

[13] Id. at 170–177.

[14] Id. at 19–20.

[15] Id. at 117.

[16] Id.

[17] Id. at 86.

[18] Id. at 87.

[19] Id. at 89.

[20] Id.

[21] Id. at 22.

[22] Id. at 98–99.

[23] Id. at 91.

[24] Id.

[25] Id. at 92.

[26] Id.

[27] Id. at 94.

[28] Id. at 95.

[29] Id.

[30] Id.

[31] Id.

[32] Id. at 95–96.

[33] Id. at 96.

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[34] Id.

[35] Id.

[36] Id. at 97.

[37] Id. at 30–47.

[38]The cited provision slates that the COMELEC shall "[e]nforce and administer all laws
and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and
recall."

[39] Id. at 47–53.

[40] Id. at 53–56.

[41] Id. at 35–37.

[42] Id. at 37–47.

[43] Id. at 47–50.

[44] Id. at 50–53.

[45] Id. at 53–56.

[46] Id. at 56–60.

[47] Id. at 61–64.

[48] Id. at 728–741.

[49] Id. at 729.

[50] Id. at 732.

[51] Id.

[52] Id. at 722–724.

[53] Id. at 723.

[54] Id. at 747–750.

[55] Id. at 748.

[56] Id. at 759–770.

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[57]
Id. at 777–796. To date, the Court has not received a comment from private respondent
Odoño.

[58] Id. at 782–793.

[59] Id. at 793–794.

[60] Id. at 798–880.

[61] Id. at 809–816.

[62] Id. at 816–820.

[63] Id. at 817–818, 820–821.

[64] Id. at 821–839.

[65] Id. at 840–864.

[66] Id. at 867–868.

[67] Id. at 868–873.

[68] Id. at 881–883.

[69] Id. at 972–978.

[70] Id. at 973.

[71] Id.

[72] Id.

[73] Id. at 975.

[74] Id. at 988–991.

[75] Id. at 989–990.

[76] Id. at 992–1003.

[77] Id. at 994.

[78] Id. at 995–998.

[79] Id. at 998–999.

[80] Id. at 1017–1028.

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[81] Id. at 1018.

[82] Id. at 1018–1020.

[83] Id. at 1056–1066.

[84] Id. at 1057.

[85] Id. at 1067–1076.

[86] Id. at 1068.

[87] Id. at 1079–1109.

[88] Id. at 1108.

[89] Id.

[90] Id. at 1111–1122.

[91] Id. at 1114. To date, the Court has yet to receive any compliance from respondents Rio,
Jr., Lagman, and Ysaac.

[92] G.R. No. 258524, October 11, 2023 [Per J. Inting, Third Division].

[93]Id. at 10. This pinpoint citation refers to the copy of the Decision uploaded to the
Supreme Court website.

[94]Bayyo Association, Inc. v. Secretary Tugade, G.R. No. 254001, July 11, 2023 [Per J.
Singh, En Banc] at 14. This pinpoint citation refers to the copy of the Decision uploaded to
the Supreme Court website. Citing The Diocese of Bacolod v. COMELEC, 751 Phil. 301,
331-335 (2015) [Per J. Leonen, En Banc].

[95] 849 Phil. 120 (2019) [Per J. Jardeleza, En Banc].

[96] Id. at 175.

[97]Ocampo v. Macapagal-Arroyo, G.R. No. 182734, June 27, 2023 [Per J. Gaerlan, En
Banc] at 10. This pinpoint citation refers to the copy of the Decision uploaded to the
Supreme Court website. Citing GIOS-SAMAR, Inc. v. Department of Transportation and
Communications, 849 Phil. 120 (2019) [Per J. Jardeleza, En Banc].

[98] GIOS-SAMAR, Inc. v. Department of Transportation and Communications, 849

Phil. 120, 187 (2019) [Per J. Jardeleza, En Banc].

[99] GPRA, sec. 55 provides:

SEC. 55. Protests on Decisions of the BAC. – Decisions of the BAC in all
stages of procurement may be protested to the head of the procuring entity and
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shall be in writing. Decisions of the BAC may be protested by filing a verified

position paper and paying a non-refundable protest fee. The amount of the protest
fee and the periods during which the protests may be filed and resolved shall be
specified in the IRR.

[100]Aggabao v. COMELEC, G.R. No. 258456, July 26, 2022 [Per J. Lazaro-Javier, En
Banc] at 13. This pinpoint citation refers to the copy of the Decision uploaded to the
Supreme Court website.

[101] COMELEC Rules of Procedure, Rule 13, sec. 1(d) provides that motions for
reconsideration of an en banc ruling, resolution, order, or decision, are prohibited except in
election offense cases.

[102] 774 Phil. 766 (2015) [Per J. Velasco, Jr., En Banc].

[103] Id. at 787–788.

[104] Id. at 798–799.

[105] COMELEC Rules of Procedure, Rule 28, sec. 1, provides:

Sec. 1. When available. – In aid of its appellate jurisdiction in election cases

before courts of general jurisdiction relating to the elections, returns and
qualifications of elective Municipal officials, and before courts of limited
jurisdiction in cases relating to the elections, returns and qualifications of elective
barangay officials, the Commission en banc may hear and decide petitions for
certiorari, prohibition or mandamus.

[106]Development Bank of the Philippines v. Commission on Audit, 827 Phil. 818, 828
(2018) [Per J. Gesmundo, En Banc].

[107]Rapid Manpower Consultants, Inc. v. De Guzman, 770 Phil. 334, 340 (2015) [Per J.
Perez, First Division].

[108]Republic v. Power Ads Intelli-Concepts Advertising and Production Corp., G.R.

No. 243931, July 14, 2021 [Per J. Inting, Third Division]. (Citations omitted)

[109] Bureau of Customs v. Court of Appeals-Cagayan de Oro Station, G.R. No. 192809
et al., April 26, 2021 [Per J. Hernando, Third Division].

[110]Republic v. Power Ads Intelli-Concepts Advertising and Production Corp., G.R.

No. 243931, July 14, 2021 [Per J. Inting, Third Division].

[111] G.R. No. 206042, July 4, 2022 [Per J. J. Lopez, Second Division].

[112]Id. at 2. This pinpoint citation refers to the copy of the Decision uploaded to the
Supreme Court website.

[113] Id.

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[114] Id.

[115] Id. at 3.

[116] Id.

[117] Id. at 7–9.

[118] Id. at 11.

[119] Id. at 13–14.

[120] Id. at 10.

[121]Bicol Medical Center v. Botor, 819 Phil. 447, 461 (2017) [Per J. Leonen, Third
Division], citing Executive Secretary v. Forerunner Multi Resources, Inc., 701 Phil. 64,
69 (2013) [Per J. Carpio, Second Division].

[122]Barbieto v. Court of Appeals, 619 Phil. 819, 842 (2009) [Per J. Chico-Nazario, Third
Division].

[123] 820 Phil. 123 (2017) [Per J. Leonen, Third Division].

[124] Id. at 139.

[125] Yamauchi v. Suñiga, 830 Phil. 122, 137 (2018) [Per J. Martires, Third Division].

[126] 495 Phil. 400 (2005) [Per J. Austria-Martinez, Second Division].

[127] Id. at 418–419.

[128] Evy Construction and Development Corp. v. Valiant Roll Forming Sales Corp., 820
Phil. 123, 138, 140–141 (2017) [Per J. Leonen, Third Division].

[129] Rollo, pp. 62–63.

[130]Okada v. Tiger Resort, Leisure & Entertainment, Inc., G.R. No. 256470, November
13, 2023 [Unsigned Resolution, First Division], citing J. Leonen, Separate Concurring
Opinion, ABS-CBN Corporation v. National Telecommunication, 879 Phil. 507, 551
(2020) [Per J. Perlas-Bernabe, En Banc].

[131] G.R. No. 265373, November 13, 2023 [Per J. Lazaro-Javier, Second Division].

[132]Id. at 10. This pinpoint citation refers to the copy of the Decision uploaded to the
Supreme Court website. Citing Land Bank of the Phils. v. Fastech Synergy Phils., Inc.,
816 Phil. 422, 443–444 (2017) [Per J. Leonen, Second Division], citing further Timbol v.
Commission on Elections, 754 Phil. 578, 584 (2015) [Per J. Leonen, En Banc].

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[133] Rollo, p. 98. (Emphasis supplied)

[134]
Manggagawa sa Komunikasyon ng Pilipinas v. PLDT, Inc., G.R. Nos. 244695 et al.,
February 14, 2024 [Per J. Zalameda, First Division] at 18. This pinpoint citation refers to the
copy of the Decision uploaded to the Supreme Court website.

[135] In its Petition, Smartmatic states:

7.21. Thus, on 11 October 2023, Smartmatic filed its Entry of Appearance with
Motion for Additional Time of even date, where it stated that the Petitions
incorrectly refer to Smartmatic PH considering that the entity that entered into the
SETS Contract was Smartmatic TIM. All the later submissions of Smartmatic
TIM likewise states [sic] the correction of such fact. (Rollo, p. 20)

[136] Rollo, p. 854.

[137] Id. at 855.

[138] Republic Act No. 9184 (2003), sec. 3. Government Procurement Reform Act.

[139] G.R. No. 252079, September 14, 2021 [Per J.M. Lopez, En Banc].

[140] Id.

[141] Republic Act No. 9184 (2003), sec. 4. Government Procurement Reform Act.

[142]Dela Cruz v. Wellex Group, Inc., G.R. No. 247439, August 23, 2023 [Per J. Singh,
Third Division] at 15. This pinpoint citation refers to the copy of the Decision uploaded to
the Supreme Court website.

[143]See Subic Bay Metropolitan Authority v. Commission on Audit, G.R. No. 230566,
January 22, 2019 [Per J. Gesmundo, En Banc].

[144] Light Rail Transit Authority v. Joy Mart Consolidated, Inc., G.R. Nos. 211281 &
212602, February 15, 2022 [Per J. Caguioa, First Division] at 12. This pinpoint citation
refers to the copy of the Decision uploaded to the Supreme Court website.

[145]
Estrella v. Commission on Audit, G.R. No. 252079, September 14, 2021 [Per J.M.
Lopez, En Banc]. (Emphasis supplied)

[146]Pabillo v. Commission on Elections, 758 Phil. 806, 841–842 (2015) [Per J. Perlas-
Bernabe, En Banc].

[147]Committee on Constitutional Amendments, Revision of Codes and Laws, August 6,

2002, p. 40.

[148]Committee on Constitutional Amendments, Revision of Codes and Laws, August 12,

2002, pp. 9–10.

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[149] Committee on Appropriations, April 30, 2002, pp. 12–13.

[150] St. Anthony College of Roxas City, Inc. v. Commission on Elections, G.R. No.
258805, October 10, 2023 [Per J. Marquez, En Banc] at 21. This pinpoint citation refers to
the copy of the Decision uploaded to the Supreme Court website. Citing J. Kho, Concurring
and Dissenting Opinion in People v. Casa, G.R. No. 254208, August 16, 2022 [Per C.J.
Gesmundo, En Banc] at 17. This pinpoint citation refers to the copy of the Opinion uploaded
to the Supreme Court website.

[151] GPPB NPM No. 107-2015 (2015).

[152] GPPB NPM No. 033-2011 (2011).

[153] GPPB NPM No. 054-2017(2017).

[154] 774 Phil. 766 (2015) [Per J. Velasco, Jr., En Banc].

[155] Republic Act No. 8436 (1997), Automated Elections Law.

[156] Republic Act No. 9369 (2007), Election Automation Law of 2007.

[157] Automated Elections Law, sec. 12, as amended.

[158] Automated Elections Law, sec. 12, as amended.

[159] 758 Phil. 806 (2015) [Per J. Perlas-Bernabe, En Banc].

[160] Querubin v. Commission on Elections, 774 Phil. 766, 800–801 (2015) [Per J. Velasco,
Jr., En Banc].

[161] Rollo, p. 844.

[162] Id. at 1018–1020, 1057.

[163] Id. at 973, 1018–1019.

[164] Id. at 1020, 1057.

[165]Comelec, Korea's Miru to sign 2025 AES contract Monday, PHILIPPINE NEWS
AGENCY, March 9, 2024, available at https://www.pna.gov.ph/articles/1220432 (last
accessed on April 2, 2024).

[166] Rollo, pp. 1053–1054.

[167] G.R. Nos. 263590 & 263673, June 27, 2023 [Per J. Kho, En Banc].

[168]J. Leonen, Separate Concurring Opinion in Macalintal v. COMELEC, G.R. Nos.

263590 & 263673, June 27, 2023 [Per J. Kho, En Banc] at 2. This pinpoint citation refers to

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the copy of the Opinion uploaded to the Supreme Court website.

[169]Saint Wealth Ltd. v. Bureau of Internal Revenue, G.R. Nos. 252965 & 254102,
January 10, 2023 [Unsigned Resolution, En Banc].

[170] J. Caguioa, Separate Concurring Opinion in Sadain v. Office of the Ombudsman,

G.R. No. 253688, February 8, 2023 [Per J. Inting, Third Division] at 3. This pinpoint citation
refers to the copy of the Opinion uploaded to the Supreme Court website.

[171] 737 Phil. 457 (2014) [Per J. Bersamin, En Banc].

[172] Id. at 620–621.

[173] G.R. Nos. 263590 & 263673, June 27, 2023 [Per J. Kho, En Banc].

[174]
Republic Act No. 11935 (2022), An Act Postponing the December 2022 Barangay and
Sangguniang Kabataan Elections, Amending for the Purpose Republic Act No. 9164, as
Amended, Appropriating Funds Therefor, and For Other Purposes.

[175]Macalintal v. Commission on Elections, G.R. Nos. 263590 & 263673, June 27, 2023
[Per J. Kho, En Banc] at 70–72. This pinpoint citation refers to the copy of the Decision
uploaded to the Supreme Court website.

[176] 865 Phil. 384 (2019) [Per J. Perlas-Bernabe, En Banc].

[177] Id. at 395.

[178] 676 Phil. 518 (2011) [Per J. Velasco, Jr., En Banc].

[179] Id. at 571.

[180] Id.

SEPARATE CONCURRING OPINION

KHO, JR., J.:

The move to disqualify petitioners Smartmatic TIM Corporation and Smartmatic Philippines,
Inc. (collectively, Smartmatic) in participating in our elections as the automated election
system provider started when private respondents Eliseo Mijares Rio, Jr., Augusto Cadeliña
Lagman, Franklin Fayloga Ysaac, and Leonardo Olivera Odoño (respondents) filed a
petition, supplemental petition, and second supplemental petition with the Commission on
Elections (COMELEC). The respondents prayed that the COMELEC review the
qualifications of Smartmatic as a prospective bidder for the bidding of the 2025 Automated
Election System (AES) for the 2025 National and Local Elections (NLE) and thereafter,
disqualify Smartmatic for the latter's failure to comply with minimum system capabilities for
the 2022 NLE that resulted in serious and grave irregularities in the transmission and receipt
of election returns.[1]

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In its Resolution dated November 29, 2023 disqualifying Smartmatic, the COMELEC
nevertheless debunked the allegations of respondents that there were irregularities in the
conduct of the 2022 NLE attributable to the 2022 AES provided by Smartmatic. In fact, the
COMELEC, apparently confident with the performance of the 2022 AES, challenged
respondents that, upon proper motion, it may authorize a recount of the votes by opening the
ballot boxes of every region of the country utilizing for said purpose either the physical
ballot, or the ballot images which are the functional equivalent of the physical ballot, at no
cost to respondents.[2] I laud the COMELEC for this declaration, as it is consistent to the
right of the public to be informed on all matters concerning elections.

In addition, the COMELEC admitted in its Resolution that the procurement process for the
2025 AES has yet to commence and that the Special Bids and Awards Committee for the
2025 AES does not have yet the authority to decide on the qualification or disqualification of
the prospective bidders;[3] thus, the COMELEC, as head of the procuring entity, cannot pass
upon judgment on the disqualification of Smartmatic,[4] as what respondents prayed for.

Nevertheless, the COMELEC, invoking its administrative power to decide all matters
affecting elections, resolved to disqualify and disallow Smartmatic to participate in any
public bidding process for elections due to the grounds not cited or raised by respondents,
explaining as follows:

As early as October 2022, the Commission (En Banc), through the Department of
Justice[,] received requests for official documents relative to an ongoing
investigation from the United States government against former COMELEC
Chairman Juan Andres D. Bautista (Bautista) and other individuals and entities
for violation of US criminal laws.[5]

….

Pursuant to the treaty between the Government of the Philippines and the
Government of the United States on Mutual Legal Assistance in Criminal Matter
(PH-US MLAT), an investigation was conducted for the alleged violation of U.S.
criminal laws, including the Foreign Corrupt Practices Act, conspiracy, wire
fraud, and money laundering. The U.S. prosecutor sought assistance in obtaining
official records from the Commission as part of the efforts to establish a case.

The evidence requested is deemed crucial for tracking the flow of suspected bribe
payments and identifying other individuals involved in the alleged scheme. It is
noteworthy that Bautista, who served as the Chairman of the Commission, was
formally charged in September 2023, in connection with allegations of receiving
bribes in exchange for awarding a contract for election machines to Smartmatic
Corp. Bautista and others are alleged to have laundered the bribe money through
multiple entities. It was revealed that Bautista established a foreign shell
company, which was used to receive bribe payments from Smartmatic. The
charges against Smartmatic and former Chairman Bautista are of public
knowledge and tend to cause speculation and distrust in integrity of the election
process.[6]

….

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Given the gravity of allegations related to bribery and compromised procurement

processes, as independently determined by foreign bodies, the Commission
recognizes the imminent threat to the strength and integrity of our democratic
processes. In light of these findings, the Commission acknowledges the imminent
peril to the integrity and robustness of our democratic institutions. These
allegations, not only undermine and cast a shadow over the procurement
protocols but also threaten to erode the public's confidence in the electoral
system. Consequently, pursuant to administrative powers which covers all aspects
of election, the Commission is compelled to take decisive action to disallow
Smartmatic from participating in the procurement process forthwith.[7]

In this connection, I agree with the ponencia that the COMELEC gravely abused its
discretion when it totally disregarded the provisions of the Government Procurement Reform
Act (GPRA) and its Implementing Rules and Regulations (IRR) in disqualifying and
disallowing Smartmatic from participating in any public bidding process for elections.[8]

As eloquently explained by the ponencia, the GPRA and its IRR essentially provide that a
prospective bidder must first be allowed to submit its bidding documents; and that it is only
upon evaluation thereof that the procuring entity may determine said bidder's eligibility.
Here, the COMELEC erroneously disregarded the GPRA and its IRR when it issued the
aforesaid Resolution even before Smartmatic had the opportunity to submit its bidding
documents.[9] Clearly, the assailed act of the COMELEC constitutes grave abuse of
discretion.

In addition to the foregoing discussion, I opine that even assuming arguendo that the
COMELEC allows Smartmatic to submit its bidding documents and thereafter, scrutinizes
the same, there is still, at least for the time being, no sufficient ground to disqualify and
disallow Smartmatic from participating in any public bidding process for elections.

I expound.

The ground cited by the COMELEC in disqualifying and disallowing Smartmatic from
participating in any public bidding process for elections is the ongoing criminal investigation
by the United States Department of Justice (US DOJ) of former COMELEC Chairperson
Juan Andres D. Bautista (Bautista) concerning the latter's act of receiving bribes in exchange
for awarding a contract for election machines to Smartmatic.[10] This investigation led to the
US DOJ unsealing the complaint against Bautista, which states that "there is probable cause
to issue a criminal complaint and arrest warrant charging [Bautista] with conspiring to
launder monetary instruments and conspiring to engage in monetary transactions in property
derived from specified unlawful activity"[11] in connection with Bautista's purported receipt
of several payments from a group of related unnamed corporations to secure the award of the
AES contract for the 2016 NLE.[12]

While it appears that the US DOJ had completed its investigation as evinced by the unsealing
of the complaint against Bautista, it however bears stressing that the findings of such
investigation and the allegations in the complaint are, at best, merely preliminary, and in due
course, would still undergo scrutiny by the US courts through a criminal trial—where, like in
the Philippines, an accused is accorded the presumption of innocence.[13] Furthermore,
should there be definitive findings against Smartmatic and/or Bautista in the proceedings
before the US, it is opined that said adverse findings have, at best, persuasive effect only in
our jurisdiction.
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Lest it be misunderstood, like the ponencia, this disquisition "does not weigh, much less
resolve, the merit of the charges against Bautista and Smartmatic's alleged involvement in
these charges."[14] Such matter may, in due time, be resolved by an appropriate forum in our
country. In the meantime, this disquisition seeks to highlight that, absent any definitive
findings regarding Smartmatic's purported complicity in the accusations thrown against
Bautista, it is premature to use this as a ground for the COMELEC to disqualify and disallow
Smartmatic from participating in any public bidding process for elections.

As a former COMELEC Commissioner, I know that the Chairperson, Commissioners,

officers, and employees of the COMELEC are zealous in their task of ensuring electoral
integrity and maintaining public confidence in the elections. However, disqualifying and
disallowing Smartmatic to participate in our electoral processes on the basis of mere
allegations of bribery, money laundering, etc., while admittedly are grave and serious
charges, are not sufficient grounds to disqualify Smartmatic at this stage of the process. In
fact, the COMELEC was very adamant in its Resolution that no irregularities attended the
conduct of the 2022 NLE where the 2022 AES of Smartmatic was used.

While the Court found that the COMELEC have acted with grave abuse of discretion in
disqualifying Smartmatic that would necessarily annul and set aside the award of the 2025
Full Automation System with Transparency Audit/Count (FASTrAC) Contract to Miru
Systems Co. Ltd., Integrated Computer Systems, St. Timothy Construction Corporation, and
Centerpoint Solution Technologies, Inc. (Miru Systems), and would require the COMELEC
to conduct another procurement process for the 2025 AES where Smartmatic may
participate, I agree with the ponencia that for reason of practicality, the "nullification of the
SBAC's proceedings and the 2025 FASTrAC Contract would gravely undermine the
COMELEC's preparation for the 2025 NLE."[15] Thus, I agree with the ponencia that this
situation calls for the application of the operative fact doctrine,[16] citing as its jurisprudential
support, among others, my ponencia in Macalintal v. Commission on Elections,[17] and to
make the effects of the Court's Decision herein prospective in application.[18]

However, speaking as a former COMELEC Commissioner, I wish to urge the COMELEC to

not unduly constrain itself with severely rigid and constricted timetables in preparing for the
elections. This is the second time in recent memory that the doctrine of operative act was
applied affecting the conduct of elections, the first one being the recently conducted
barangay elections, pursuant to Macalintal. In this connection, the COMELEC should
seriously consider scheduling an earlier date for the filing of the certificates of candidacy that
would allow it to arrange with enough legroom its timetable for all the activities related to
elections, including the bidding processes for the procurement of election systems,
equipment, materials and supplies, approval of the ballot face for all elective positions,
printing of ballots and election forms, training of teachers and election personnel,
accreditation of party-list groups, resolution of disqualification cases of candidates and other
cases, and other varied election activities that need the undivided attention of the
COMELEC.

As the Constitutional body created primarily to ensure the conduct of free and fair elections,
the COMELEC should adequately plan for any contingencies that could result in the
hampering of its preparations for the elections—such as what happened in this case. As noted
by the ponencia, if not for the application of the operative fact doctrine, the preparations for
and ultimately, the very conduct of the 2025 NLE could have been severely jeopardized.[19]
However, the repeated application of the operative fact doctrine should not be the norm in

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the conduct of elections. Thus, in its preparation for future elections, the COMELEC should
be more flexible in its timetables so as to avoid instances such as this to happen again.

As a final note of the ponencia, it stated, to which I also agree, that "[t]he Court's ruling in
this case is without prejudice to the outcome of any disqualification or blacklisting procedure
that the COMELEC or any other procuring entity might see fit to initiate against Smartmatic
in the future, in accordance with the procedure prescribed by the GPRA and its IRR."[20] I
would like to further add that the application of the operative fact doctrine in this case that
would in effect allow the use of the AES provided by Miru Systems for the 2025 NLE is also
without prejudice to any appropriate petition that may be filed that would directly challenge
the award of the 2025 AES to Miru Systems.

ACCORDINGLY, I VOTE to GRANT the instant Petition.

[1] Ponencia, pp. 2–3.

[2] Id. at 3–5.

[3] Id. at 4.

[4] Id. at 3.

[5] Petition, p. 25.

[6] Ponencia, pp. 4–5.

[7] Petition, p. 37.

[8] Ponencia, pp. 20–21.

[9] Id. at 19–26.

[10] Id. at 4–5.

[11] Id. at 9; emphasis supplied.

[12] Id. at 9.

[13]
See Taylor v. Kentucky, 436 U.S. 478 (1978) [United States of America]. See also
CONST., art. III, sec. 14(1).

[14] Ponencia, p. 33; emphasis supplied.

[15] Id. at 28; emphasis supplied.

[16] Id. at 30–33.

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[17] G.R. Nos. 263590 and 263673, June 27, 2023 [Per J. Kho, En Banc].

[18] Ponencia, p. 33.

[19] Id. at 30.

[20] Id. at 34.

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