“If there’s anything more sacred in a democracy than the right to vote, it’s ensuring that our votes are counted fairly and accurately”
Not all of us have heard the term mandamus before; for our brothers and sisters in the legal profession it is almost an everyday term we hear of – but what exactly is a mandamus – much more a continuing mandamus? Simply put, it’s a remedy which compels the performance of an act which the law specifically enjoins as a duty resulting from office, trust, or station, and that the court order granting the same is a pressing order until something that was asked for gets done. It’s a legal tool that’s been used for environmental issues – to push government agencies to act and uphold the law, which was seen in the landmark case of MMDA v. Concerned Citizens of Manila Bay (G.R. Nos. 171947-48, December 18, 2008).
So, why should we not concertedly call to apply this to something just as important: our elections? Because if there’s anything more sacred in a democracy than the right to vote, it’s ensuring that our votes are counted fairly and accurately.
Constitutional duty of COMELEC
The 1987 Constitution clearly outlines the powers and duties of the COMELEC in ensuring that elections are conducted in a fair, orderly, and transparent manner. Specifically, Article IX-C, Section 2 of the 1987 Constitution states:
“The Commission on Elections shall have the exclusive authority to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.”
Furthermore, Article V, Section 1 of the same Constitution enshrines the right to vote for all Filipino citizens, making it the duty of the COMELEC not only to facilitate but to safeguard the integrity of this right by ensuring that every vote is counted accurately and fairly.
Need for a continuing mandamus on electoral concerns
Let’s talk about the May 12, 2025 elections. I know that the majority of the Filipinos felt that the experience left a lot to be desired. From the onset, there were serious flaws in the system that shouldn’t have happened in the first place. Although we had laws and regulations in place, they were either ignored or poorly executed by the Commission on Elections (COMELEC).
For starters, we have the issue with overseas voting. Despite there being no law supporting the conduct of online voting, the COMELEC unilaterally decided to roll it out anyway, without considering the legal framework laid out in Sections 23, 24, 25, and 27 of RA 10590. In short, they decided to implement something that wasn’t even authorized by law. This is a blatant oversight that undermines the trust we place in the election process.
Next, despite reiterative calls from the public for manual counting at the precinct level, as required by Section 31 of RA 9369 and Section 24 of RA 9369 for the random manual audit of election results, COMELEC refused to heed the voice of the people. Section 24 requires a random manual audit, not a full manual count, and this is a ministerial act that COMELEC is legally bound to implement. The aforementioned sections hereby states as follows:
“Sec. 24. A new Section 29 is hereby provided to reads as follows:
”SEC 29. Random Manual Audit. – Where the AES is used, there shall be a random manual audit in one precinct per congressional district randomly chosen by the Commission in each province and city. Any difference between the automated and manual count will result in the determination of root cause and initiate a manual count for those precincts affected by the computer or procedural error.”
Sec. 31. Section 25 of Republic Act No. 7166 is hereby amended to read as follows:
”Sec 25. Manner of Counting Votes. – In addition to the requirement in the fourth paragraph of Section 12 of the Republic Act No. 6646 and Section 210 of the Omnibus Election Code, in reading the official ballots during the counting, the chairman, the poll clerk and the third member shall assume such positions as to provide the watchers and the members of the public as may be conveniently accommodated in the polling place, an unimpeded view of the ballot being ready by the chairman, of the election return and the tally board being simultaneously accomplished by the, poll clerk and the third member respectively, without touching any of these election documents. The table shall be cleared of all unnecessary writing paraphernalia. Any violation of this requirement shall constitute an election offense punishable under Section 263 and 264 the Omnibus Election Code.”The chairman shall first read the votes for national positions.
“Any violation of this Section, or its pertinent portion, shall constitute an election offense and shall be penalized in accordance with Batas Pambansa Blg. 881.”
Another issue we encountered was the disorganized transmission of the results to the National Board of Canvassers (NBOC). The law explicitly says the election results should be transmitted simultaneously to organizations like PPCRV, NAMFREL, and the media, but instead, the results were first sent to a data center, consolidated, and then sent off. Why? Why break the system that’s supposed to ensure transparency? What are they hiding?
Section 7 of RA 9369, also requires that the automated election system must meet specific minimum system capabilities, including adequate security, accuracy in vote recording and transmission, error recovery, voter verified paper audit trails, and many other requirements. Section 7 provides as follows:
Sec. 7. Section 7 of Republic Act No. 8436 is hereby amended to read the follows:
“SEC.6. Minimum System Capabilities. – “The automated election system must at least have the following functional capabilities:
(a) Adequate security against unauthorized access:
(b) Accuracy in recording and reading of votes as well as in the tabulation, consolidation/canvassing, electronic transmission, and storage of results;
(c) Error recovery in case of non-catastrophic failure of device;
(d) System integrity which ensures physical stability and functioning of the vote recording and counting process;
(e) Provision for voter verified paper audit trail;
(f) System auditability which provides supporting documentation for verifying the correctness of reported election results;
(g) An election management system for preparing ballots and programs for use in the casting and counting of votes and to consolidate, report and display election result in the shortest time possible;
(h) Accessibility to illiterates and disable voters;
(i) Vote tabulating program for election, referendum or plebiscite;
(j) Accurate ballot counters;
(k) Data retention provision;
(l) Provide for the safekeeping, storing and archiving of physical or paper resource used in the election process;
(m) Utilize or generate official ballots as herein defined;
(n) Provide the voter a system of verification to find out whether or not the machine has registered his choice; and
(o) Configure access control for sensitive system data and function.
“In the procurement of this system, the Commission shall develop and adopt an evaluation system to ascertain that the above minimum system capabilities are met. This evaluation system shall be developed with the assistance of an advisory council.”
However, COMELEC failed to ensure that ALL these capabilities were met.
The automated counting machines (ACMs) likewise lacked the necessary international certification three months prior to the elections, as required by law. Section 11 of RA 84336, as amended by RA 9369, requires that a certification be issued by the technical evaluation committee (TEC) stating that the automated election system (AES), including its hardware and hardware components, is operating properly, securely and accurately three months before the elections. However, TEC has only issued the required certification for the 2025 AES only on April 30, 2025. Merely two weeks shy of the election day.
It bears emphasis that these not mere technical errors. These are intentional and they strike at the very foundation of our democracy—the right to a fair and transparent election.
But, why should we care?
The answer to that is simple. This isn’t just about a few technical errors or some minor glitches in the system. This is about both our constitutional rights in the governance of our nation and the personal rights we exercise as individuals. When we cast our votes, we should be sure that they’re being counted as we intended. We should trust that the system in place is fair, transparent, and up to date. Without these checks in place, what happens next time? Will we have another election where people lose faith in the system?
Certainly, when the mechanisms designed to protect the fairness of our elections fail, the very foundation of our democratic system is at risk because the integrity of our elections is paramount in any democracy. Without it, the very foundation of our democratic rights is shaken. When trust in the system erodes, it could lead to lower voter turnout and a general sense of disenchantment with the political process.
The Concept of a Continuing Mandamus in the Philippines
The concept of a continuing mandamus first appeared in the case of MMDA v. Concerned Citizens of Manila Bay (G.R. Nos. 171947-48, December 18, 2008). This decision laid the groundwork for the institutionalization of A.M. No. 09-6-8-SC (Rules of Procedure for Environmental Cases), which has since been applied primarily in environmental cases.
In 2023, the Supreme Court limited the application of the writ of continuing mandamus in the case of Baquirin v. Dela Rosa (G.R. No. 233930, July 11, 2023), stating that the writ applies only to environmental concerns and cannot be invoked to compel the investigation of anti-illegal drug operations.
In Baquirin, the petitioners, both concerned citizens and members of the Integrated Bar of the Philippines, argued that the respondents (heads of the Philippine National Police, Department of Justice, and Commission on Human Rights) had failed to properly fulfill their duties to prevent violations of the right to life and to investigate and prosecute such violations in the context of government anti-illegal drug operations like Oplan Tokhang and Oplan Double Barrel. The petitioners sought a writ of continuing mandamus to direct the respondents to: (1) investigate allegations of extrajudicial killings under these operations, (2) prosecute those responsible, (3) and submit regular reports to the Supreme Court on the number of extrajudicial killings, the progress of investigations, and measures to prevent further violations.
However, the Court denied the petition, explaining that a writ of mandamus can only be granted when it is shown that a legal duty has been unlawfully neglected. To issue such a writ, the following must be established: (1) a clear legal right belonging to the petitioner, (2) a corresponding duty of the respondent to perform an act required by law, (3) a failure of the respondent to perform that duty, (4) the duty is ministerial (not discretionary), and (5) no other remedy is available in the ordinary course of law.
In the end, the Court found that the petitioners failed to prove that the respondents had neglected their duties. Specifically, the petitioners could not establish that the heads of the PNP, DOJ, and CHR had failed to take necessary action in relation to the government’s anti-illegal drug campaign.
While the Court is correct in saying that the writ should not be used for investigative matters, as in the Baquirin case, its pronouncement that the writ is strictly confined to environmental concerns seems overly restrictive. The writ’s potential goes beyond just environmental matters. In limiting the application of continuing mandamus to environmental cases based solely on its inclusion in A.M. No. 09-6-8-SC, the High Court seems to be placing an artificial restriction on its own powers—powers that should be able to adapt to the evolving needs of the nation. This limitation is particularly striking when we consider that the concept of a continuing mandamus was essentially spun “out of thin air” in MMDA v. Concerned Citizens of Manila Bay prior to the institutionalization in A.M. No. 09-6-8-SC.
The use of continuing mandamus in India
The potential of continuing mandamus extends far beyond environmental cases. For example, in India, a continuing mandamus has been utilized in cases involving fundamental rights and freedoms. In the case of Vineet Narain v. Union of India (1998), the Central Bureau of Investigation (CBI), India’s main investigative agency, was found to be ineffective and politically influenced in investigating high-profile corruption cases, particularly the “Hawala scandal” involving influential persons in the government and bureaucrats. The Supreme Court of India, recognizing that the mere issuance of a writ of mandamus would not suffice due to persistent executive inaction, adopted the procedure of continuing mandamus to ensure effective discharge of public duty by the CBI and other governmental agencies, free from political bias and influence. Acknowledging the novelty of the concept of a continuing mandamus, the Supreme Court of India stated that it was a new judicial tool forged because of the peculiar needs of the matter.
By comparison, if our Supreme Court finds wisdom in the approach of its Indian counterpart, and acknowledge the imporance of applying continuing mandamus as a special legal tool forged to address the unique problems in relation to other fundamental rights, then we could see its broader application.
After all, the concept of a continuing mandamus wasn’t created just for environmental concerns, and members of the legal profession will agree with me that it can serve a greater purpose. In this light, continuing mandamus could be used to safeguard electoral integrity, ensuring that transparency, accuracy, and fairness in elections are prioritized just as much as environmental protection. It would compel COMELEC to follow the mandates of the Constitution and election laws, guaranteeing that every vote is counted fairly and every step of the election process is transparent and accountable. This would undoubtedly bolster public trust and reaffirm the integrity of our democratic processes.
The path forward
So, what can we do about it? While the Supreme Court’s ruling on continuing mandamus is currently limiting, it’s important to remember that the Court can always revisit and refine its rulings. If there’s growing support for ensuring that the writ is applied to electoral matters, the Court may reconsider its position, especially given the evolving nature of electoral law and public trust.
To restore the integrity of future elections, we need to take action, and we need to take it now. Mind you, every citizen has a stake in ensuring that our electoral system works the way it’s supposed to.
The path forward is clear: we need a continuing mandamus to demand that COMELEC sticks to its mandate. This includes enforcing the manual counting of votes at the precinct level, as required by law. No more sidestepping the law or glossing over its intent. A continuing mandamus could be the tool to hold COMELEC accountable, compelling them to follow the rules that safeguard our democracy.
To restore the integrity of future elections, we need to take action—and we need to take it now. Mind you, every citizen has a stake in ensuring that our electoral system functions as it should.
Our democracy depends on it.
(The author is from The Law Firm Of Torreon and Partners in Barangay Buhangon Proper, Davao City).