http://www.tribune.net.ph/headlines/20100212hed3.html
The Supreme Court (SC) has turned down the suit challenging the holding of next May’s automated national and local elections this May and upheld its earlier ruling on the validity of the P7.2-billion poll automation deal between the Commission on Elections and Smartmatic-Total Information Management Corp. (TIM)
In a 15-page resolution by Associate Justice Presbitero Velasco Jr., the tribunal said there was no irregularity and grave abuse of discretion committed by the Comelec in awarding the contract to Smartmatic-TIM consortium as it said arguments raised by the petitioners — Harry Roque Jr. et al., the Philippine Senate and the late Pete Quadra — dwelt on possibilities or matters that may or may not occur.
“Speculations and conjectures are not equivalent to proof; they have little, if any probative value and, surely, cannot be the basis of a sound judgment,” the Court said.
SC spokesman Jose Midas Marquez, at a press briefing, indicated that the decision is already final.
“That means, any legality has been laid to rest,” Marquez said.
“That difficult and complex undertaking belongs at the first instance to the Comelec as part of its mandate to ensure orderly and peaceful elections.
“The Comelec, as it were, is laboring under a very tight timeline. It would accordingly need the help of all advocates of orderly and honest elections, all men and women of goodwill, to assist Comelec personnel in addressing the fears expressed about the integrity of the system. After all, peaceful, fair, honest and credible elections is everyone’s concern,” the Court reiterated.
Concurring with Justice Velasco were Chief Justice Reynato Puno and Justices Renato Corona, Arturo Brion, Martin Villarama, Jr., Diosdado Peralta, Antonio Eduardo Nachura, Lucas P. Bersamin, Teresita Leonardo-De Castro, Roberto Abad, Mariano Del Castillo, Jose Perez, and Jose Mendoza. Senior Justice Antonio Carpio reiterated his dissent of Sept. 10, 2009 and was joined by Justice Conchita Carpio Morales.
Roque’s group, in its motion for reconsideration, insisted that the poll automation should be scrapped in light of the recent statement of Comelec chairman Jose Melo that the poll body is preparing for manual elections in 30 to 50 percent areas in the country, particularly in areas that are prone to power failures and network transmission issues.
Such pronouncement, according to the petitioners, indicates a possible failure of poll automation during the May 2010 elections, thus, the need to abandon the project.
The petitioners added that the award of the poll automation contract to Smartmatic-TIM is tantamount to Comelec’s abdication of its duty to enforce and administer all laws and regulations relative to the conduct of an election and to decide all questions affecting elections.
The petitioners said that based on the provisions of the poll automation contract, the Comelec has given Smartmatic-Tim complete control of the technical aspects of the 2010 elections, which is unconstitutional.But, the Court noted that the said contentions are a rehash of their previous position that they expounded in their memorandum in support of their petition.
“They have been considered, squarely addressed, and found to be without merit in the decision subject hereof. The Court is not inclined to embark on another extended discussion of the same issue again,h the Court added.
It stressed that under the poll automation deal, Smartmatic-TIM is given only a specific and limited technical task to assist the Comelec in implementing the automated election system (AES).
“At the end of the day, the Smartmatic-TIM joint venture is merely a service provider and lessor of goods and services to the Comelec, which shall have exclusive supervision and control of the electoral process,” the SC explained.
On the other hand, the Senate, through Senate President Juan Ponce Enrile, intervened in the case and also sought the reconsideration of the September 2009 decision as well as Quadra, who prayed for the Board of Election Inspectors to manually count the ballots after the printing and the election transmission of ballots
The Court, however, reiterated that the AES to be provided by the Comelec has been successfully used in previous electoral exercises in other countries such as Ontario, Canada and New York, USA, although Smartmatic was not necessarily the system provider.
The Court also did not entertain new arguments raised by the parties in their motions for reconsideration “for compelling reasons.”
In their original petition, Roque’s group argued that the certifications were issued to a third party, the Dominion Voting Systems (Dominion), and not Smartmatic-TIM.
However, the Court said the system subject of the certifications was the same one procured by Comelec for the 2010 elections. It added that the Licensing Agreement between Smartmatic and DVS indicates that the former is the entity licensed by the latter to use the system in the Philippines.
The said petitioners now contend in their motion for reconsideration that the system certified as having been used in New York was the Dominion Image Cast, a ballot marking device.
“As a matter of sound established practice, points of law, theories, issues, and arguments not raised in the original proceedings cannot be brought out on review,” the SC stressed.
The Court also branded as “highly speculative and without evidentiary values the said petitioners’ claim that TIM-Smartmatic will not be able to provide for telecommunication facilities for areas without these facilities.
“Surely, a possible breach of a contractual stipulation is not a legal reason to prematurely rescind, much less annul, the contract,” said the Court.
The Court also brushed aside claims of said petitioners, which were based on mere news reports, that TIM-Smartmatic joint venture has allegedly entered into a new contract with the Shanghai-based Quisdi to manufacture on its behalf the needed PCOS machines.
“The argument is untenable. Surely, petitioners cannot expect the Court to act on unverified reports foisted on it,” the Court said.
In its Sept. 10, 2009 ruling, the Court did not give merit to the arguments raised by the petitioners that the joint venture agreement between Smartmatic and TIM was a sham; that the precinct count optical scan (PCOS) to be procured failed to pass the minimum capability requirement under Republic Act 8369 or the Election Modernization Act; and that the Comelec failed to adhere to the requirement of pilot-testing prior to the adoption of AES.
Contrary to the claim of the petitioners, the Court noted that the joint venture agreement between Smartmatic and TIM was properly documented.
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