11-3-1 Supreme Court decision allows full nationwide automation of Philippine elections

(UPDATE) It’s official: SC OKs poll automation

by Purple Romero, abs-cbnNEWS.com/Newsbreak | 09/10/2009 4:38 PM

MANILA – The Supreme Court (SC) officially announced Thursday it has junked the petition seeking to stop the automation of the May 2010 polls.

SC spokesman Midas Marquez confirmed that the High Tribunal voted 11-3-1 to junk the petition filed by Concerned Citizens Movement led by UP law professor Harry Roque that asked the court to stop the full nationwide automation of the elections.

He said the majority of justices concurred with the Commission on Elections’ (Comelec) argument that the pilot-test requirement, as stated in the poll automation law, does not apply for the May 2010 polls.

Roque had argued that the law specifically compels Comelec to pilot-test the automation system first before its nationwide implementation.

But the Solicitor-General and the Comelec argued that the requirement for the pilot-test was not mandatory. They said the elections referred to in the law for the pilot-test was the mid-term elections in 2007.

Marquez confirmed earlier reports by abs-cbnNEWS.com/Newsbreak that Justices Antonio Carpio, Conchita Carpio-Morales and Arturo Brion dissented, while Justice Leonardo Quisumbing did not participate since he is on official leave.

The ruling was penned by Justice Presbitero Velasco.

“Barred forever”

Roque’s petition sought to have the P7.3-billion automation contract between Comelec and Smartmatic-Total Information Management (TIM) Consortium nullified based on the following grounds:

  • Comelec did not conduct a pilot-testing of Smartmatic-TIM’s precinct count optical scan machines (PCOS), in violation of Republic Act 8346 or the poll automation law
  • Smartmatic-TIM did not enter into a joint venture agreement (JVA) during the bidding for the contract
  • The PCOS machines do not meet the minimum system capabilities outlined in RA 8346
  • The Comelec does have not control over the automated election system (AES)

The petitioners argued that Comelec overlooked Sec. 6 of RA 8346, which stated that the AES should be utilized in regular elections immediately after the law was enacted in 2007. Given this condition, the AES should have been used in the May 2007 elections – the “pilot test” for the full automation in 2010.

The Comelec failed to deploy the AES in the said elections, however, because of funding problems.

But the SC pointed out that if the non-implementation of AES in the 2007 elections would prevent the Comelec from venturing into full automation in succeeding polls, the country would be stuck perpetually with manual elections.

“To argue that pilot testing is a condition precedent to a full automation in 2010 would doubtless undermine the purpose of RA 9369…If there was no political exercise in May 2007, the country would be theoretically be barred forever from having full automation,” the SC said.


The SC also said that nowhere in the Comelec’s rules is the incorporation of the consortium required during the bidding.

They added that the petitioners also erred in saying that the Smartmatic-TIM joint venture agreement—just like the case of Mega Pacific consortium—is dubious. Mega Pacific bagged the P1.2- billion automation contract in 2003, but it was later revealed that it did not form a joint venture.

The Court said that the Smartmatic-TIM JVA clearly conveyed to Comelec the structure of joint venture and the 60-40 financing arrangement, in favor of TIM.

The SC also noted that Comelec will not be devoid of any control over the AES even if only Smartmatic will have the access to the public and private keys of the PCOS machines.

“The speculative nature of petitioners’ position as to who would have possession and control of the keys became apparent,” the SC stated in reference to Roque’s admission during the oral arguments that they have not clarified, in any way, this issue with Comelec.

The High Tribunal added that the poll automation contract does not show any hint of the alleged “abdication” of Comelec’s mandate. It noted that the petitioners have a weak grasp of the contract’s content and substance.

“The petitioners, to stress, are strangers to the automation contract. Not one participated in the bidding conference or the bidding proper or even perhaps examined the bidding documents,” they said.

Stringent criteria

As to the petitioners’ allegations that the PCOS machines failed to meet the 99.9% accuracy requirement in counting votes because, according to one website, it has a margin of error from 2% to 10%, the SC suggested that they first check Smartmatic’s own website where the accuracy rating is posted at 99.9 percent.

Also, the SC said that they were “satisfied” with the 26-item criteria set by the Comelec for the PCOS machines. The criteria included the capability of the equipment to detect fake ballots, recognize partial shade marks and produce reports.

The machines passed the criteria during the trial conducted in the Comelec building. The SC noted, however, that the credibility of the PCOS machines could be ascertained some more after they undergo the tests listed in Comelec’s terms of reference for the automation.

The tests include laboratory tests and mock elections.

SOURCE: ABS-CBN News, its-official-sc-oks-poll-automation


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