MANILA, Philippines - The Supreme Court (SC) upheld yesterday the legality of the government’s P1.8-billion purchase of precinct count optical scan (PCOS) machines for next year’s automated midterm elections.
Voting 11-3 in a special session, justices of the high court dismissed the consolidated petitions of various groups seeking to stop the Commission on Elections (Comelec) from purchasing 82,000 machines used under a lease agreement in the 2010 polls from the Netherlands-based Smartmatic.
Comelec Chairman Sixto Brillantes called the ruling “a very good decision.”
In its decision, the high court also effectively lifted its April 24 temporary restraining order on the Comelec-Smartmatic deal. The SC will officially release its decision today.
“The Comelec is now free to implement the contract for the purchase of the PCOS machines,” SC spokesman Ma. Victoria Gleoresty Guerra said at a press briefing.
Guerra explained that a majority of the justices believed that the deal was valid since it was forged when the earlier contract between Comelec and Smartmatic for the 2010 polls remained in effect.
“The main contract for the automated election system (AES) between Comelec and Smartmatic containing the option to purchase the PCOS machines was still existing when Smartmatic extended the period of the said option to purchase and when the poll body exercised the said option,” she said, quoting a portion of the SC ruling.
She also said the majority of the justices are convinced the contract is still valid because the Comelec has not yet returned in full the P360-million performance security bond collected from Smartmatic.
Associate Justice Diosdado Peralta penned the ruling. The other magistrates who voted to uphold the PCOS deal were acting Chief Justice Antonio Carpio, Associate Justices Presbitero Velasco Jr., Teresita Leonardo-de Castro, Lucas Bersamin, Mariano del Castillo, Roberto Abad, Jose Perez, Jose Mendoza, Lourdes Sereno and Bienvenido Reyes.
Justices Martin Villarama, Arturo Brion and Estela Perlas-Bernabe dissented.
Guerra said the petitioners – Automated Election System Watch (AES Watch) led by former Vice President Teofisto Guingona Jr., the Solidarity for Sovereignty (S4S) led by Ma. Linda Montayre, and another group of concerned citizens led by Davao City Archbishop Fernando Capalla have 15 days from receipt of notice to appeal the ruling.
In questioning the deal, the petitioners said the new contract was not subjected to bidding as required under Republic Act 9184 or the Government Procurement Reform Act.
They said Comelec failed to meet the Dec. 31, 2010 deadline to exercise its option to purchase the PCOS machines.
They said neither the Comelec nor Smartmatic can extend the option period as doing so would violate the guidelines set by the poll body’s Bids and Awards Committee (BAC). They said the purchase could only be considered legal if is done through public bidding.
Petitioners also argued that the Comelec committed grave abuse of discretion when it approved the contract through Resolution No. 9376 despite an advice from the Comelec Advisory Council (CAC) against exercising the option to purchase.
The CAC, the body mandated by law to recommend the appropriate and cost-effective technology for AES, issued a resolution on Feb. 8, 2012, reiterating its opposition to Comelec’s exercise of the option to purchase.
Citing “glitches, malfunctions, bugs, and defects of the Smartmatic PCOS machines and related paraphernalia” during the May 2010 elections, the CAC recommended that for the May 2013 elections, Comelec not need use the same PCOS machines and that it look for better options for the coming polls.
The petitioners also argued that the deal also violated Section 10, Republic Act 9369 (Automated Election System law) which stipulates that for the May 10, 2010 election and succeeding electoral exercises, “the system procured must have demonstrated capability and been successfully used in a prior electoral exercise here or abroad.”
In oral argument last May 8, the Comelec represented by Solicitor General Francis Jardeleza explained that the glitches found in the voting machines during the 2010 polls had already been fixed. The Comelec also argued that it had to resort to the purchase option for “practical reason,” saying its budget for the 2013 elections was only P7 billion.
Smartmatic, for its part, accused the petitioners of spreading “misleading information.”
Call for unity
Brillantes, meanwhile, said he hopes that the petitioners would no longer question the ruling and instead just help the poll body ensure the success of next year’s elections.
“We are accepting the decision… a very good decision. But I think more importantly, I hope to talk and convince the petitioners not to file an appeal. Mag-unify na lang kami para gumanda ang elections sa 2013 (Let’s unify to make the 2013 elections pleasant),” he noted.
The Comelec chief said they might invite critics of the deal to a meeting to get their insights on ensuring clean and honest elections in 2013.
“I think we should sit together and talk. What we need to do is help each other. If they will continue to (criticize) us, I don’t think it is right,” he added.
With the SC ruling, Brillantes said they intend to go full blast in the preparations for the 2013 polls starting today.
“The temporary restraining order has been lifted... We will be able to start with the publication of the bidding for services,” he added.
The Philippine National Police (PNP), for its part, said it has activated the National Committee for HOPE 2013 to ensure honest, orderly and peaceful elections in May 2013.
“The PNP shall also strengthen the police-community partnership to harness the cooperative potentials of community in preventing violence and fostering a culture of peace at the community level,” PNP chief Director General Nicanor Bartolome said.
He said he has issued a letter of instruction to guide police units in implementing procedures for the implementation of the program.
Under the LOI, Bartolome said the PNP shall vigorously pursue the coordination with the Armed Forces of the Philippines through the establishment of Joint Peace and Security Coordinating Center to address a wide range of security and law enforcement issues.
The PNP chief also emphasized that laws and regulations pertaining to the bearing and carrying of firearms would be strictly enforced.
Bartolome also said that the PNP shall strictly enforce regulations on the provision of security personnel for candidates, including the carrying of firearms by government security forces and authorized individuals.
He pointed out that the PNP shall also strictly adhere to criminal procedures to ensure that the offenders are properly charged in court and airtight cases are filed against them.
Chief Superintendent Agrimero Cruz Jr., acting director of the Police Community Relations Group (PCRG), also said the PNP would actively seek the cooperation of the general public.
“The involvement of the community in the much anticipated elections is very much needed to prevent, if not stop, the occurrence of possible election-related violent incidents in the country,” Cruz said. - with Cecille Suerte Felipe, Shiela Crisostomo - By Edu Punay