SC grills CCM on petition vs. P7.2-B poll automation contract

July 29, 2009 9:32 am 

MANILA, July 29 — The Supreme Court (SC) grilled the Concerned Citizens Movement (CCM) on Wednesday in connection with its petition questioning the constitutionality of the P7.2-billion poll automation contract entered into between the Commission on Elections (Comelec) and the Smartmatic-Total Information Management (TIM) consortium.

The contract would pave the way for the full automation of the May 10, 2010 national and local elections.

During the oral arguments between the two parties heard by the High Court this afternoon, CCM leader Atty. Harry Roque Jr. clarified that they anchored their petition on the alleged grave abuse of discretion committed by the Comelec and the violation of the Anti-Dummy Law committed by the Smartmatic-TIM.

Chief Justice Reynato Puno noted that Total Information Management and not Smartmatic should be in control of the joint venture agreement.

"The general rule is that the majority of the stockholder should be in control," Puno told Roque.

Puno pointed to Article 6 of the Articles of Incorporation and Article 4.5 of the Joint Venture Agreement which provides Smartmatic veto powers.

Roque agreed that despite being entitled to only two of the five seats in the Board, it has the power to veto.

"Here we are circumventing the 60-40 rule under the (Article 12 of the) Constitution," Roque said.

Articel 12, Section 10 of the 1987 Constitution provides: "The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities."

Roque also pointed out that despite having the 60 percent share, TIM's only duty, following Article 3 of the contract is merely to provide "value added services and logistics" while Smartmatic has the power of being the "overall project manager and development manufacturer."

Roque also said that Article 3.3 of the contract provides Comelec's abdication of its duties to Smartmatic with regards to the keys and passwords or complete access to the counting machines.

"I am sure of the article. It stuck in my mind because I cannot believe that provision," Roque said.

Associate Justice Antonio Carpio asked Roque if in case the full automation pushed through, who would control the password of the software to be utilized.

Roque said that the Smartmatic-TIM would be the one who would generate and control the password or public/private keys to be used and not the Comelec itself.

Another Associate Justice noted the lack of time now to conduct trial automation as the 2010 election is already very near.

"Don't you think that could be impossible to comply now? Pilot-testing could be an impossible condition," Associate Justice Renato Corona said.

He said that the automation law requires the conduct of pilot-testing, but petitioners through counsel Harry Roque said that pilot testing need not be done on a nationwide basis because the law merely allows pilot testing in at least two highly-urbanized areas in Luzon, Visayas and Mindanao.

Roque said that the automated election in the Autonomous Region in Muslim Mindnao (ARMM) elections cannot be considered pilot testing because the system used at the ARMM polls is different from the system to be used in next year's elections.

He said that Smartmatic also intended to use SAES system or the Smartmatic Auditable Elections System which is the latest system.

Roque said he is apprehensive that through the system, tampering is possible because the program is placed on a memory card. (PNA) scs/PTR

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