Legal move cites grave abuse, violation of procurement law by Comelec

Posted by
April 11, 2012

VP Guingona
Former Vice President Teofisto Guingona, Jr., lead petitioner in the citizens' TRO, meets the press at the Supreme Court grounds on April 2, 2012.

Through individual petitioners led by former Vice President Teofisto T. Guingona, Jr., the Automated Election System Watch (AES Watch) on April 10 sought a Temporary Restraining Order (TRO) from the Supreme Court (SC) on the new contract signed by Comelec to buy Smartmatic-TIM PCOS machines for the 2013 automated elections.

The Petition for Certiorari, Prohibition, and Mandamus (with Prayer for TRO and Writ of Preliminary Injunction) was filed before the SC at Padre Faura, Manila on April 10 by, aside from VP Guingona, Bp. Broderick S. Pabillo, DD, Auxiliary Bishop of Manila; Prof. Solita (“Winnie”) C. Monsod of the Movement for Good Governance); Maria Corazon M. Akol,; Fr. Jose Dizon, Solidarity Philippines; Nelson J. Celis,  former president of the Philippine Computer Society Foundation; Pablo R. Manalastas, PhD, Senior Fellow of CenPEG; Dean Georgina R. Encanto, president of Transparency International-Philippines; and Anna Leah E. Colina, We Watch.

The petitioners took the legal move to nullify the new deal signed by Comelec and Smartmatic as Filipino citizens, voters, and taxpayers and in pursuit of public interest. They cited a recent SC ruling saying that such act can be resorted to when the public interest so requires.

AES Watch clarified that the legal move was taken when it was dared by Comelec Chairman Sixto Brillantes, Jr. on March 19 to sue over the poll body’s option to purchase. Felix D. Carao, Jr., lead volunteer lawyer of CenPEG and AES Watch, said “We took this challenge in order to once and for all settle the legal questions in court.”

Carao, Jr. cited grave abuse of discretion and violation of RA 9184 or the procurement law as two grounds for filing the petition. Comelec, Carao, Jr. said, committed grave abuse of discretion in totally disregarding the recommendation of Comelec Advisory Council (CAC) against exercising the option to purchase as provided for in the terminated July 2009 contract between the poll body and the Dutch-Venezuelan company. The CAC issued the recommendation twice – in June 2010 and in another resolution on Feb. 8 this year.

The option to purchase had already expired and, hence, the new Deed of Sale signed last March 30 is null and void, the petition states. Comelec furthermore committed grave abuse by entering into the contract despite incontrovertible findings of glitches, malfunctions, bugs, and defects of the Smartmatic PCOS machines and related paraphernalia.

AES Watch lead counsel, Felix Carao, Jr. (center) is interviewed by reporters after filing the citizens' petition for temporary restraining order at the Supreme Court, Padre Faura, Manila. With him are petitioners Nelson Celis (left) and Dr. Pablo Manalastas (right)

The Government Procurement Policy Board (GPBB) under the Department of Budget and Management echoed a similar concern in a March 28 letter to Comelec Commissioner Augusto Lagman. In the letter, Dennis S. Santiago, Executive Director III of GPBB, said “there is nothing more to extend because the existing ‘offer’ that served as basis of the
option to purchase had already ceased to exist” on Dec. 31, 2010. The extended “offer” should be treated as new and therefore subject to competitive bidding according to law, Santiago said. The subsequent extensions “have no leg to stand on” as the original “offer” for Comelec to exercise the option to purchase “was already non-existent,” he said.

Five Comelec commissioners including Brillantes, Jr., voted for the new contract. Only two, Lagman and Commissioner Robert Christian Lim, dissented.

Meanwhile, AES Watch clarified that the legal action is not meant to delay the preparations for the 2013 mid-term elections. As early as mid-2011, the broad multi-sectoral citizens’ watchdog along with the petitioners had called on the Comelec to prepare for the next elections. Much earlier, right after the May 2010 elections, AES Watch member-organizations began making representations with Congress in order to assess the conduct of the first automated polls as mandated by law and recommend whether to use the same election technology or not.

pic 3
Petitioner Nelson Celis (left) of PCS Foundation shows a copy of the TRO petition. Beside him are lawyer Felix Carao, Jr., co-petitioners Pablo Manalastas of CenPEG and Anna Lea E. Colina of We Watch.

Comelec has wasted time on the preparations since 2011 by allowing Smartmatic to rectify its technology errors and have it re-certified – proof of which has not been revealed anyway, AES Watch said. “Why the fixation with Smartmatic-TIM despite contrary views and expert advice by the CAC, GPBB, IT groups, and citizens’ watchdogs?”, the group asked. “Could there be other reasons that are being hidden from the public?”

AES Watch called on other election stakeholders and the public to support the legal move – through the honorable Petitioners – in order to right a wrong that was committed twice: first, under the Melo Commission, and now, under the Brillantes Commission. CenPEG News


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