Petitioners vs poll automation project file Motion for Reconsideration

MANILA, PHilippines - Lawyer Harry Roque recently filed a Motion for Reconsideration (MR) at the Supreme Court seeking to nullify the earlier decision denying his petition to junk the Commission on Election’s (Comelec) 2010 poll automation project, which was awarded to the joint venture of Total Information Management Inc. (TIM) and Smartmatic International Corp. (Smartmatic).

Roque filed a motion last Sept. 28 urging the Court to reconsider its Sept. 10, 2009 ruling wherein the justices decided by an 11-3 vote to deny the petition of Roque.

In the decision penned by Justice Presbitero Velasco Jr., the Court upheld the poll automation contract and ruled that the Comelec did not commit grave abuse of discretion.

It stressed that the joint venture of Smartmatic and TIM was properly documented.

“Had petitioners only bothered to undertake the usual due diligence that comes with good judgment and examined the eligibility envelope of the Smartmatic-TIM joint venture, they would have discovered that their challenge to and arguments against the joint venture and its JVA (Joint Venture Agreement) have really no factual basis,” the Court said.

Concurring were Chief Justice Reynato Puno and Justices Consuelo Ynares-Santiago, Renato Corona, Minita Chico-Nazario, Antonio Eduardo Nachura, Teresita Leonardo-de Castro, Diosdado Peralta, Lucas Bersamin, Mariano del Castillo, and Roberto Abad. Justice Antonio Carpio dissented and wrote a separate opinion, which was joined by Justice Conchita Carpio-Morales. Justice Arturo Brion also wrote a dissenting opinion.

Senior Justice Leonardo Quisumbing was on official leave.

Roque said in his latest motion that the award by the Comelec of the elections automation project to TIM and Smartmatic was made with grave abuse of discretion amounting to an excess or lack of jurisdiction, it being in violation of the Constitution, of statutes, and of jurisprudence.

He reiterated his prayer to the SC to permanently prohibit the commission, the Comelec-Special Bids and Awards Committee (SBAC), TIM and Smartmatic from implementing the contract.

Roque also asked the SC to declare the contract null and void for violating the Constitution, statutes, and jurisprudence.

He asked the Court to enjoin all respondents from implementing the contract and the respondent Secretary of the Department of Budget and Management (DBM) from releasing funds for the project.

Aside from Roque, other petitioners are lawyers Joel Butuyan and Romel Bagares, and private citizens Allan Jones Lardizabal, Gilbert Andres, Immaculada Garcia, Erlinda Mercado, Francisco Alcuaz, Ma. Azucena Maceda, and Alvin Peters.

“This patent misrepresentation by respondent Smartmatic-TIM is evidence of bad faith and intent to defraud the government,” the petitioners stressed.

The petitioners further argued that the consortium did not include Jarltech as a member of the alleged joint venture even if the Precinct Count Optical Scan (PCOS) machines are to be procured from it, which is a violation of the Court’s ruling in ITFP vs. Comelec, which mandated the latter to determine the full identity of the entity it is dealing with.

The group said Smartmatic also did not include Dominion and 2Go Corp. as members of the joint venture even if these companies are responsible for the software and the distribution of the PCOS machines, respectively.

“Since Jarltech, Dominion, and 2Go are not privy to the contract to be entered between Comelec and the alleged Smartmatic-TIM joint venture, these three entities are obviously not jointly and severally liable with respondents Smartmatic and TIM,” the petitioners complained.