Election Protest Costs: The Supreme Court Ruling on Retention Fees for Election Equipment

The Supreme Court has settled an important question for election protesters: who bears the cost of retaining election equipment during a protest, and can the Senate Electoral Tribunal (SET) rule on the validity of the contracts that impose those costs? In Tolentino v. Senate Electoral Tribunal (G.R. No. 248005, May 11, 2021), the Court held that the SET acted within its jurisdiction when it ordered the release of a protestant's cash deposit to the Commission on Elections (COMELEC) for retention costs — and that the SET has no power to declare void a contract between COMELEC and its equipment provider.

The Facts of the Case

After the May 9, 2016 national elections, Senator Francis N. Tolentino filed an election protest against Senator Leila M. De Lima before the SET. The protest involved vote counting machines (VCMs) and consolidated canvassing system (CCS) laptops leased by COMELEC from Smartmatic-TIM under an Automated Election System (AES) contract.

The contract contained a key provision (Section 6.9): if goods remained in COMELEC's possession after December 1, 2016 due to an election contest or audit requirement, they would be considered sold to COMELEC — with the cost chargeable to the protestant.

The SET ordered COMELEC to retain the equipment that Tolentino requested, and required him to deposit P3,315,785.36 as retention costs. Tolentino paid, but later moved for the return of his money, arguing that the equipment was never used for forensic examination and that the retention cost was onerous and unconstitutional.

The SET denied the motion and ordered the amount turned over to COMELEC. Tolentino then filed a petition for certiorari with the Supreme Court, claiming the SET committed grave abuse of discretion.

The Issue

The central question was whether the SET committed grave abuse of discretion when it ordered the release of Tolentino's cash deposit to COMELEC without ruling on the validity of Section 6.9 of the AES contracts.

The Court's Ruling

The Supreme Court denied the petition, ruling that the SET acted properly.

First, the SET has limited jurisdiction. Under Section 17, Article VI of the 1987 Constitution, the SET is the "sole judge of all contests relating to the election, returns, and qualifications" of Senators. This jurisdiction covers matters affecting the validity of a protestee's title — not every dispute that arises during a protest. The Court cited Javier v. COMELEC, which explained that "election, returns, and qualifications" refers to all matters affecting the validity of the contestee's title.

The SET has no express, inherent, or implied power to declare void or unconstitutional a contract between COMELEC and Smartmatic-TIM. That power belongs to the regular courts. If the SET had ruled on the contract's validity, it would have acted beyond its authority — constituting grave abuse of discretion.

Second, the SET properly relied on Section 6.9. The Court noted that COMELEC is authorized to procure election equipment under Section 12 of Republic Act No. 8436, as amended by R.A. No. 9369 (the Automation Law). Lease agreements with an option to purchase have been previously recognized as valid in Capalla v. COMELEC. Until Section 6.9 was declared void in a proper proceeding, the presumption favored its validity.

Third, the deposits cannot be returned. Tolentino voluntarily moved for the retention of the equipment, knowing he would have to shoulder the costs. COMELEC retained the equipment only because of his protest. If COMELEC had to pay the retention costs from government funds, that would violate Section 4(2) of Presidential Decree No. 1445 (the Government Auditing Code), which requires that government funds be spent solely for public purposes. Tolentino's private election protest does not pass the "public purpose" test.

Practical Takeaways

• Electoral tribunals have limited jurisdiction. The SET and the House of Representatives Electoral Tribunal (HRET) can only decide contests relating to the election, returns, and qualifications of their members. They cannot rule on the validity of contracts between COMELEC and third parties.

• Challenge contract provisions directly. A protestant who believes a COMELEC contract provision is illegal or unconstitutional should file a direct action in the regular courts, not collaterally attack it in an election protest.

• Retention costs are a real risk. Before requesting the retention of election equipment, a protestant should understand that the cost may be charged to them under the applicable contracts — and that these costs may not be recoverable.

• Government funds cannot pay for private election protests. Under P.D. No. 1445, public funds must be used solely for public purposes. A private litigant's election protest does not qualify.

• Voluntary payments are difficult to recover. A protestant who knowingly pays retention costs, with full awareness of the obligation, may not later claim the payment was unjust or should be returned.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.