Supreme Court expected to uphold poll automation law

MANILA, Philippines – The fate of the country’s first automated national elections will be known tomorrow.

The Supreme Court is expected to decide tomorrow on a petition seeking to stop the P7.2-billion automation contract of the Commission on Elections (Comelec) with joint venture Smartmatic Corp. and its Filipino partner, Total Information Management (TIM) Inc., SC spokesman Jose Midas Marquez said yesterday.

But an abs-cbnNEWS.com/Newsbreak report revealed that justices of the High Court already voted yesterday to uphold the poll automation deal and junk the petition of the Concerned Citizens Movement (CCM) led by UP professor and lawyer Harry Roque Jr.

Based on the report, 11 justices, including Chief Justice

Reynato Puno, voted during full court session against the arguments of CCM while three others voted in favor of the petitioner.

Associate Justices Antonio Carpio, Conchita Carpio-Morales and Arturo Brion gave the dissenting votes. Associate Justice Leonardo Quisumbing is on leave.

The actual decision penned by Associate Justice Presbitero Velasco, the abs-cbnNEWS report said, would be released tomorrow.

Marquez declined to confirm or deny the information, saying the justices have yet to finalize their positions by submitting their opinions tomorrow.

In its petition last July 9, the CCM asked the SC to stop the poll automation deal citing violations of the poll automation law.

Roque argued that the agreement should be stopped as it had supposedly violated a provision in Republic Act 9369 or the Poll Automation Law that requires pilot testing of an automation system before its implementation.

But the Comelec, through the Office of the Solicitor General, said the poll automation contract did not violate RA 9369.

“The only condition imposed by Congress in RA 9369 for the automation of the 2010 elections is that the AES (automated election system) to be procured must have demonstrated capability and must have been successfully used in a prior electoral exercise here or abroad,” Assistant Solicitor General Thomas Laragan told the SC justices.

He said the automation machines had been subjected to strict technical evaluation and certified to have been used successfully in past electoral exercises.

Laragan argued that the word “pilot-testing” as used in Section 6 of RA 9369 merely states that the machines “shall be used in at least two highly urbanized cities and two provinces.”

“Quite glaringly, too, the provision does not state that the use of the AES is necessary or is a condition precedent to the conduct of automated elections in 2010. Had legislators intended that a ‘pilot testing’ be mandatory, they could have categorically expressed the same in a language that is clear and straightforward,” Laragan argued. “After all, text is an index of intention.”

The OSG recalled that in the 2008 elections in the Autonomous Region in Muslim Mindanao, the Comelec utilized the Counting Center Optical Scan (CCOS), which uses a technology similar to the one used for the precinct count optical scan (PCOS) machines of Smartmatic TIM.

Comelec elated

“We are happy (with the ruling) and of course tuloy-tuloy na talaga tayo sa (there’s no stopping) poll automation,” Comelec Chairman Jose Melo said.

Melo said they have yet to receive a copy of the SC decision, but have been informed that majority of the High Court justices have voted in favor of poll automation.

“We don’t have the copy of the order yet but I am told that it’s 11-3-1,” Melo said.

He stressed the Comelec would still look into the dissenting opinion of Justice Antonio Carpio.

“Justice Carpio has a dissenting opinion and we need to see that,” he pointed out.

Premature

Roque, for his part, denounced what he called premature release of information regarding the SC’s ruling.

He expressed exasperation that “decisions are leaked out” even before they could reach concerned parties.

Roque, who is in New York, said the SC should do something about the problem “or the people will lose hope in the judiciary.”

“There’s really something wrong with the system,” he told The STAR over the phone.

“It’s like everyone knows about it except the court,” Roque said.

“We cannot lose by default. We may lose the case but we will continue to oppose this automated Garci,” Roque said referring to former Comelec commissioner Virgilio Garcillano.

Garcillano was believed to be the Comelec official who promised one million votes to President Arroyo, in a recorded phone conversation shortly after the 2004 presidential elections. Mrs. Arroyo narrowly won over closest rival the late actor Fernando Poe Jr.

Meanwhile, the Comelec ruled out a delay in the transport of the needed ballot and counting machines despite the suspension on the operations of Aboitiz Transport System Corp. (ATSC) following the sinking of SuperFerry 9.

James Jimenez, Comelec spokesman, said the poll body is ready to take necessary action to prevent any hitches in the conduct of the computerized 2010 elections.

“There are other companies that provide similar services (as Abotiz’s). What matters is that the project is not jeopardized,” Jimenez pointed out.

He said the suspension order on Aboitiz is only temporary and there is no reason for the Comelec to be alarmed.

“It’s too early to make any conclusion. We will see how long the suspension lasts what it covers etc. The Comelec is prepared to ensure the success of the project,” he stressed.

The Comelec earlier sought the services of a subsidiary of Abotiz for the transport of the ballots and counting machines.

Failure of elections?

Former President Joseph Estrada warned yesterday of a possible “failure of elections” scenario through power outages that would cripple the automated counting machines.

In a speech before the joint meeting of the Rotary Club of Makati, Estrada urged the people to remain vigilant to prevent massive cheating in next year’s elections.

“Under this untested system, the potentials of a failure of elections are real. The computers may be tampered with so as to cause intentional breakdown,” he said.

“The wirings of the system may be short-circuited. There may be sudden power failures, accidental or deliberate and worst of all, note that there has been no date set to train teachers and watchers to acquaint themselves with the machines for the elections,” Estrada said.

“We must be prepared for a possible failure of elections. This is a scenario that political analysts consider a serious threat and yet a real possibility,” he pointed out.

“We must therefore be on guard against the possibilities of sabotage or system failure because these can lead to the declaration of failure of the elections,” Estrada said.

He said a failure of elections “can be used as an excuse for the continuation of this regime in a transition government or worse, the declaration of martial law.”

“That continuation can also result in the amending of the Constitution to change our system of government from presidential to parliamentary,” he said.

Estrada stressed that he does not intend to belittle the competence and integrity of Comelec.

“I seek only to make our people aware and vigilant. And you as distinguished members of an elite learned class must be at the forefront of this effort against any attempt to make the elections fail,” Estrada said.

“It (Arroyo administration) is a government that stole the presidency, not only once, but twice. Firstly, from me and later from my friend, Fernando Poe Jr.,” he said.

“It is a government that has been enmeshed in continuing and appalling exposés of incidences of graft and corruption one after the other, with the trademark of ZTE-Broadband and Husband. While my trademark is wristband only,” Estrada said. –Edu Punay (The Philippine Star) with Jose Rodel Clapano, Mayen Jaymalin and Michael Punongbayan