A looming disaster

Just a little over a month after the Supreme Court ruled that the government could not use 1,991 automated counting machines in the 2007 polls, the Office of the Ombudsman cleared the election officials who paid P1.2 billion for the ACMs of any criminal or administrative liability.

Where does the Ombudsman’s decision place the ruling of the nation’s highest court?

And what does this bode for the conduct of the midterm elections next year? It’s a disaster in the making.

With the elections just seven months away, nothing has changed in the flawed electoral system that gave us the "Hello, Garci" cheating scandal last year. Except for the appointment of a few new faces, nothing has changed at the Commission on Elections (Comelec), which bought the ACMs from the Mega Pacific consortium in a deal that the Supreme Court said suffered from "legal, jurisprudential and technical flaws."

Until those flaws are corrected, the Supreme Court said in its ruling handed down only last Aug. 23, "the same danger of massive electoral fraud remains."

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Mega Pacific Inc. and its subsidiary, Mega Pacific eSolutions Inc., have dug in their heels and insisted on a policy of no return, no exchange. Fully paid with precious public funds, the two firms have refused to take back the ACMs that they have delivered to the Comelec.

Not that the Comelec is trying very hard to return the machines. Over the past months the poll body has launched an aggressive campaign to sell the idea of using the ACMs after all in the elections next year.

In this campaign, the Comelec apparently enjoys support in high places. No less than the election lawyer of both President Arroyo and Vice President Noli de Castro, Romulo Macalintal, had asked the SC to allow the use of the ACMs in 2007.

The high tribunal threw out the petition on Aug. 23, saying that approving it would be an admission that the court had erred in its decision on Mega Pacific and that the deal was in fact aboveboard.

Overturning its own ruling, the tribunal added, would remove all legal grounds for the government to recover the P1.2 billion and return the ACMs.

Macalintal has reportedly instructed his law firm to include the Ombudsman’s latest resolution in the motion for reconsideration of the SC’s Aug. 23 ruling. Macalintal, apart from insisting that the ACMs have been cleared for use by the Department of Science and Technology, also pointed out that taxpayers are spending a whopping P300 million a year in storage fees for the mothballed computers. That’s a huge amount; have they been stashed away in a special deep-freeze compartment?

In fact there is still someone else standing in the way of using the 1,991 ACMs: Ombudsman Merceditas Gutierrez.

But one of the petitioners in the case thrown out by her office, former Senate President Jovito Salonga, has given up on Mercy the Merciful.

"They committed grave abuse of discretion," Salonga told me yesterday. "There is no use going back to the Ombudsman."

Last night there were reports that Salonga had changed his mind and would seek a reconsideration of the resolution.

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Gutierrez has reportedly not endorsed the Ombudsman’s 52-page supplemental resolution prepared by a panel headed by Overall Deputy Ombudsman Orlando Casimiro.

She reportedly delegated the entire case to Casimiro and his team. Why? Isn’t she supposed to uphold or reject the resolution? Can the Ombudsman shirk responsibility for such a remarkable turnaround by her office in a major case?

The resolution reversed the Ombudsman’s previous resolution prepared by Prosecution Officer II Maria Elena Roxas last June 28, which found Comelec Commissioner Resurreccion Borra and members of the poll body’s bidding committee liable for graft in connection with the Mega Pacific deal.

The second resolution also ignored the findings of the Senate Blue Ribbon Committee headed by Joker Arroyo, which was approved by the entire chamber in plenary session on Dec. 12 last year. Oh well, the administration has given broad hints that it wants the Senate abolished. But hold it right there — the Office of the Ombudsman is supposed to be independent of the administration, even if its head used to be the President’s chief legal counsel and acting secretary of justice.

The Ombudsman’s first resolution, which could have served as a basis for Borra’s impeachment, cleared Comelec Chairman Benjamin Abalos of culpability in the deal that the Supreme Court had scrapped. Borra, not surprisingly, wondered aloud why he had been singled out.

Now the second resolution has cleared Borra and everyone else implicated in the deal of both criminal and administrative liability.

Can the Ombudsman insist that it is right and the Supreme Court wrong on this one? The SC, in its January 2004 decision penned by Artemio Panganiban who now heads the tribunal, had ruled that Comelec officials must be held accountable for the anomalous automation deal.

The Ombudsman’s turnaround, described by Salonga as a "brazen somersault," has raised fears that the Supreme Court may itself be headed for a reversal of its own ruling against the automation deal. This is, after all, a land of many mysteries.

And the Comelec will get away with everything — the use of the ACMs, and its officials free from prosecution for graft.

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Where does that leave us?

Apart from the crisis between the Supreme Court and the Ombudsman, we are facing another election disaster in 2007.

A Comelec official had told me that the poll body was busy preparing for manual elections in 2007, with a budget of about P500 million. That amount will allow for partial poll automation in three pilot areas in Luzon, the Visayas and Mindanao, the official said.

The question remains: which machines will be used for partial automation?

With the Comelec’s credibility at record lows, using those ACMs in 2007 – assuming there will be elections next year – will surely precipitate a slew of protests against poll fraud.

Those protests cannot be resolved. Not with the same electoral system, and not with the same faces at the Comelec. And not with the legal system compromised.