Justices outnumber Sereno in voting vs Smartmatic contract
The Supreme Court (SC) en banc on Tuesday indefinitely stopped the P300-million “midnight deal” entered into by the Commission on Elections (Comelec) with Smartmatic-Total Information Management (Smartmatic-TIM).
Voting 12 to 2, the High Court issued a Temporary Restraining Order (TRO) against Comelec and Smartmatic for the repair, refurbishment and maintenance of 82,000 Precinct Count Optical Scan (PCOS) machines to be used in the 2016 presidential polls.
The majority of SC justices prevailed over the wishes of Chief Justice Maria Lourdes Sereno and Associate Justice Presbitero Velasco Jr. who wanted to have oral arguments before a TRO shall be issued.
“The court, voting 12-2, issued a temporary restraining order to enjoin the implementation of the extended warranty contract (Program 1) , dated January 30, 2015, effective immediately and until further orders from the court,” the ruling said.
The ruling favored a petition filed by the Integrated Bar of the Philippines (IBP) questioning the contract signed on January 30, 2015, three days before the retirement of Comelec Chairman Sixto Brillantes Jr. on February 2, 2015.
Acting Comelec Chairman Christian Robert Lim said the development may prompt the poll body to consider reverting to manual elections, among other options, in the 2016 elections if the TRO is not lifted in time.
Lim admitted that the TRO will have a “big impact” on preparations for next year’s polls, saying that aside from the PCOS machines, the poll body has other important matters to deal with, like the bidding for the lease of additional counting machines.
“Of course, the possibility of going to manual will always be there,” he said. “We hope, we believe that the Supreme Court will resolve this case as soon as possible.”
Comelec spokesman James Jimenez said the poll body’s legal department will file a motion for reconsideration before the SC as soon as it receives a copy of the TRO.
Jimenez expressed confidence that the SC would reconsider its decision, saying that if it can be made within the first half of the year, then it would still be within the Comelec’s preparations time frame.
“The challenge is really to get the TRO lifted as soon as possible,” he said.
In the petition for certiorari, the lawyers group accused the Comelec of grave abuse of discretion amounting to lack or excess of jurisdiction in allowing the contract with Smartmatic to proceed.
In particular, the petitioners assailed Comelec Resolution 9922, entitled “In The Matter of Clarifying the Opinion of the Law Department to the Draft Contract for the 2014 Extension to the Warranty Program; Repair and Maintenance of the Precinct Count Optical Scan (PCOS) Machines,” on December 23, 2014, which approved Smartmatic-TIM’s Extended Warranty Proposal (Program 1), and the contract subsequently entered into by both parties.
According to the petition, the contract did not pass through the required public bidding. The deal was sealed via direct contracting or single source procurement.
The petitioners accused Comelec of violating the provisions of Republic Act (RA) 9184, also known as the “Government Procurement Reform Act.”
The IBP said competitive bidding in government procurement is “a matter of public policy.”
It pointed out that the election court’s contention of “tight time schedule” to justify the deal must not hold water since this is “not a ground to dispense with the conduct of the public bidding under the law.”
With this, the IBP asked the High Court to issue a TRO against the Comelec’s contract with Smartmatic.
Recently, AES Watch also filed a similar petition.
The signatories were Bishop Broderick Pabillo; former Comelec Commissioner Augusto Lagman; Dr. Pablo Manalastas, a computer science faculty of the Ateneo de Manila University and University of the Philippines; Leo Querubin of the Philippine Computer Society; Concepcion Bragas-Regalado, founding president of Migrante International; Dr. Jaime Caro of the UP Department of Computer Science; Marikol Akol, co-organizer of TransparentElections.org.ph; and Evita Jimenez, executive director of the Center for People Empowerment in Governance.
Meanwhile, the SC en banc junked for being premature petitions filed by former Immigration Commissioner Homobono Adaza and the Citizens for Clean and Credible Elections (C3E) asking the High Court to stop public bidding for the supply, lease or purchase of the Optical Mark Readers and Direct Recording Electronic machines.
It dismissed Adaza and C3E’s plea asking the court not to allow Smartmatic to participate in any Comelec bidding.
The SC said it is within the jurisdiction of the Comelec to have a public bidding on these machines for it is considered as the authority on election matters.
Acting Comelec Chairman Lim said he has called an emergency meeting of senior officials to discuss effects of the TRO.
“We will be creating scenarios, consider other alternatives,” he added.
The controversial PCOS machines, supplied by Smartmatic-TIM Corp., are undergoing repair and refurbishment by Smartmatic technicans at a Comelec warehouse in Cabuyao, Laguna.
WITH WILLIAM B. DEPASUPIL