SC junks bid to nullify P7.2-B poll automation deal

September 10, 2009 9:36 am 

By Perfecto T. Raymundo Jr.

MANILA, Sept. 10 — Voting 11-3, the Supreme Court (SC) on Thursday denied the petition filed by the Concerned Citizens Movement (CCM) seeking to nullify the Commission on Elections (Comelec)'s award of the P7.2-billion contract for the automation of the May 10, 2010 to the Total Information Management Corporation (TIM) and Smartmatic International Corporation (Smartmatic) joint venture.

The petition also sought to permanently prohibit the Comelec and the joint venture from signing and implementing the said contract-award.

The CCM is led by University of the Philippines College of Law professor Harry Roque Jr.

In a 49-page decision, penned by Associate Justice Presbitero Velasco, Jr., the SC en banc held that the Comelec did not commit grave abuse of discretion in the award of the poll automation contract to TIM and Smartmatic.

It stressed that the joint venture of Smartmatic and TIM was properly documented.

"Had petitioners only bothered to undertake the usual due diligence that comes with good judgment and examined the eligibility envelope of the Smartmatic-TIM joint venture, they would have discovered that their challenge to and arguments against the joint venture and its JVA [Joint Venture Agreement] have really no factual basis," the SC said.

The SC said that contrary to the contention of the petitioners, the pilot testing of the technology in question in an actual, scheduled electoral exercise was not a mandatory requirement for the choice of system in, or a prerequisite for, the full automation of the May 10, 2010 elections.

It stressed that mandating a pilot testing would "doubtless undermine the purpose of RA 9369, the Act Amending RA 8436 or the Election Modernization Act."

It held that what the law really exacts is that for the automation of the May 10, 2010 and subsequent election, the Precinct Count Optical Scan (PCOS), or any AES to be procured must have demonstrated its capability or success in either a local or a foreign election.

The SC added that any doubt on the issue of whether or not full automation of the 2010 regular elections can validly proceed without a pilot run of the AES "should be put to rest with the enactment in March 2009 of RA 9525, in which Congress appropriated PhP11.301 billion to automate the 2010 elections, subject to compliance with the transparency and accuracy requirements in selecting the relevant technology of the machines."

The SC said that Automated Election System (AES) was not to be confused with the PCOS System procured by the Comelec for the 2010 polls.

PCOS, it noted, is merely one of several automated voting, counting, or canvassing technologies coming within the term AES.

The SC also held that PCOS meets the minimum capabilities standards prescribed by RA 8436, as amended.

Based on the records before it, the SC said that it was "fairly satisfied that the COMELEC has adopted a rigid technical evaluation mechanism, a set of 26-item/check list criteria…to ensure compliance with the above minimum systems capabilities."

It said that petitioners' alleged 2% to 10% failing rate was based on a webpage of Smartmatic that is no longer current and moreover applies only to "optical scanners."

Moreover, the SC held that there is no abdication of the Comelec's mandate and responsibility.

It stressed that nothing in the contract between the Comelec and Smartmatic-TIM joint venture to support the simplistic conclusion of abdication of control.

It noted that the proviso designating Smartmatic as the joint venture partner in charge of the technical aspect of the counting and canvassing wares does not translate to ceding control of the electoral process to Smartmatic.

Moreover, the Request for Proposal (RFP), also known as the Terms of Reference, itself puts all prospective bidders on notice of Comelec's supervision and control to ensure effective and successful implementation of the automation project.

The Comelec and the Smartmatic-TIM, during oral arguments at the SC and in their respective memoranda, also have categorically rejected outright allegations of abdication by the poll body of its constitutional duty.

The role of Smartmatic-TIM Corporation was basically to supply the goods necessary for the automation project, such as but not limited to the PCOS machines, personal computers, electronic transmission devices and related equipment, both hardware and software, and the technical services pertaining to their operation.

Based on the contract, any decision on the part or on behalf of Smartmatic will not be binding on Comelec.

With the AES, the possibility of system hacking is very slim.

The SC noted that the PCOS machines are only online when they transmit the results, which would only take around one to two minutes.

In order to hack the system during this tiny span of vulnerability, a super computer would be required.

Though AES has its flaws, the Comelec and Smartmatic have seen to it that the system is well-protected with sufficient security measures in order to ensure honest elections.

Also, the disruption of the election process due to machine breakdown or malfunction may be limited to a precinct only.

But even in the worst case scenario of breakdown of the 82,000 PCOS machines, such machine failure would not translate into failure of elections.

Manual count tabulation and transmission can be done since PCOS is a paper-ballot technology.

The SC also found the Anti-Dummy Law to be inapplicable in this case.

For violation of the said law to attach, it must be established that there is a law limiting or reserving the enjoyment or exercise of a right, franchise, privilege, or business to citizens of the Philippines or to corporations or associations at least 60 per centum of the capital of which is owned by such citizens.

In this case, however, the SC said, "it is not aware of any constitutional or statutory provision classifying as a nationalized activity the lease or possession of goods and technical services for automation of an election."

The SC highlighted that the Comelec is an independent constitutional body with a distinct and pivotal role in our scheme of government.

The poll body, it added, should not be stymied with restriction that would perhaps be justified in the case of an organization of lesser responsibility and should be afforded ample elbow room and enough wherewithal in devising means and initiatives that would enable it to accomplish the great objective for which it was created–to promote free, orderly, honest, and peaceful elections.

"Absent, therefore, a clear showing of grave abuse of discretion on COMELEC's part, as here, the Court should refrain from utilizing the corrective hand of certiorari to review, let alone nullify, the acts of that body….The Court, however, will not indulge in the presumption that nothing would go wrong, that a successful automation election unmarred by fraud, violence, and like irregularities would be the order of the moment on May 10, 2010…That task belongs at the first instance to COMELEC, as part of its mandate to ensure clean and peaceful elections," the SC said.

"The road, however, towards successful 2010 automation elections would certainly be rough and bumpy. The COMELEC is laboring under very tight timelines. It would accordingly need the help of all advocates of orderly and honest elections, of all men and women of good will, to smoothen the way and assist COMELEC personnel address the fears expressed about the integrity of the system. Like anyone else, the Court would like and wish automated elections to succeed credibly." (PNA)



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