SC junks ACM use for poll upgrade

The Supreme Court (SC) denied yesterday the petition of the election lawyer of President Arroyo and Vice President Noli de Castro to allow the poll body and the Department of Science and Technology to use 1,991 automated counting machines or ACMs purchased by the Commission on Elections (Comelec) in next year’s elections.

In an 11-page en banc resolution, the high tribunal invoked its earlier decision voiding a contract between the Comelec and a private consortium.

It said granting the petition of lawyer Romulo Macalintal would effectively overturn the court’s findings and conclusions nullifying with finality the contract between the Comelec and Mega Pacific Inc. and its subsidiary MegaPacific eSolutions for the purchase of the ACMs at P1.2 billion.

"In sum, to grant the present motion and petition and allow the use of the ACMs, after they were found to have failed mandatory legal requirements (not just the DOST testing, upon which the present motion places so much reliance), would effectively overturn the Court’s findings and conclusions in its final and executory decision," read the SC’s decision.

Comelec Chairman Benjamin Abalos said the tribunal’s ruling not only doused the chances of using the P1.3-billion ACMs purchased by the poll body, but also the possibility of holding the first ever computerized elections in 2007.

"The (SC) decision put an end to everyone’s dream of having computerized elections," Abalos said.

The SC said it would be admitting that it committed a "horrible mistake," and that it would be a declaration that the Comelec’s "impugned acts were aboveboard" if the petition of Macalintal were granted.

Granting the petition would also remove all grounds for any legal action by the government to recover the funds used to purchase the ACMs, the SC added.

The SC also reiterated its June 15, 2005 resolution ordering the Comelec to return the 1,991 ACMs to Mega Pacific and to recover the amount paid for them.

"That the Comelec officials have chosen to this day to keep the automated counting machines, in direct contravention of our directive, and worse, to incur imprudently and pay illegally for costs for their storage at the expense of public funds will simply add to their liability in the end," read the SC decision.

The Supreme Court said Macalintal failed to cite supervening events that would warrant the reopening of the case, and that nothing has also been done to correct the defect found in the ACM’s programs.

"Thus again we say, the ACMs were not good enough for either the 2004 national elections or for the 2007 elections, considering that nothing has been done to correct the legal, jurisprudential and technical flaws underscored in our final and executory decision," SC said in its decision.

"We repeat that no matter how many times the machines were re-tested, if nothing was done about programming defects and deficiencies, the same danger of massive electoral fraud remains," it said.

Following the SC decision, the Comelec has given up hope of using the ACMs in next year’s elections.

"At this time, it is too late for us to computerize the 2007 elections because amendments to the current Election Code remain pending before Congress," Abalos said.

The law allows only the use of the outmoded optical mark-sense reading machines, which the Comelec could no longer purchase even if Congress gave them the budget, Abalos said.

At the Office of the Ombudsman, the public hearings on the voided electoral automation contract were terminated yesterday because the complainants were no longer presenting any resource persons.

Overall Deputy Ombudsman Orlando Casimiro, investigating panel chairman, said even the complainants have also failed to appear in the clarificatory hearings despite several invitations.

"After hearing the presentations of IT (information technology) experts from the Department of Science and Technology, some individuals from private participating companies in the consortium, we are now ready to issue the resolution on or before Sept. 30, the deadline set by the Supreme Court," he said.

The complainants are the foundations Kilos Bayan and Bantay Katarungan and Sen. Aquilino Pimentel Jr.

The Office of the Ombudsman started its clarificatory public hearings last July 13.

During yesterday’s hearing, officials from the Comelec and the Mega Pacific Consortium gave Powerpoint presentations and argued that the deal was aboveboard, contrary to the findings of the Supreme Court.

In his presentation, Jose Tolentino, Comelec deputy executive director for operations, who was the project manager for poll automation, argued that the bidding process was valid and regular.

He also told the panel that the Mega Pacific Consortium was qualified to join in the bidding, and that the ACMs which they supplied were tested to be 100 percent accurate.

The contract was properly executed and proved to be advantageous for the government, having resulted in savings of P40 million "at the least" and P2 billion "at the most," Tolentino said.

On the other hand, Alfredo Lazaro, lawyer for Mega Pacific, said his clients were practically vindicated as the complainants have failed to appear in any of the panel’s hearings.

Lawyer Estrella Elamparo, Lazaro’s colleague, said the consortium welcomes the conclusion of the investigation, noting that the absence of the complainants shows that their allegations of irregularities could not be sustained.

"Our clients are very happy because we were given the venue so the court and the public may know our side of the issue," she said. "Now we had the chance to refute every single issue thrown upon us and we feel that we have cleared our name."

‘Test the ACMs’

Meanwhile, the 1.5 million-strong Liga nga mga Barangay led by Marinduque Board Member James Marty Lim threw its support yesterday behind a move to ask the Supreme Court to allow the public testing of the ACMs to determine their accuracy and reliability.

Lim said the testing of the ACMs is a "giant step" towards the ultimate goal of electoral automation to spare the country from perennial election disputes.

"With new witnesses surfacing recently to testify against alleged cheating in the last elections, the country faces another round of exasperating tirades from both the opposition and administration unless something concrete is implemented soon, such as automating succeeding elections to accelerate release of results," he said.

"Having been national president of the LnB for nine years, I’ve seen how my fellow public servants toil and imperil themselves during elections. It cannot be denied that a big chunk of election-related work is tasked upon barangay officials, and the longer it takes for results to be generated, the greater is their exposure to danger."

In batting for electoral automation, Lim gave three reasons:

• It will speed up the election process, thus, eliminating doubts and accusations.

• It will bring about huge savings on time and manpower thereby minimizing tasks requiring human intervention, which will spare unnecessary costs.

• It is bound to decrease election-related offenses by lessening the risk brought about by the length of time it takes before the results are released.

Automation will solve the major dilemma attributed to manual canvassing, Lim said.

League officials, representing the country’s 42,000 barangays nationwide, lamented that the ACMs, which cost the Comelec some P1.2 billion, may be "facing oblivion and deterioration" unless the Supreme Court acts favorably on a petition to reopen the case concerning the purchase of the ACMs.

In his petition, lawyer Romeo Macalintal said: "There are supervening factual and legal circumstances that transpired since Jan. 13, 2004, and that the situation at the time has so changed in the present as to justify a public testing or demonstration of these ACMs to determine if they are really 100 percent accurate and reliable for purposes of the 2007 elections." — With Mayen Jaymalin, Cecille Suerte Felipe