SUITS SUE COMELEC OVER PLAN TO BUY DEFECTIVE POLL MACHINES

SUITS SUE COMELEC OVER PLAN TO BUY DEFECTIVE POLL MACHINES

THREE petitions have been filed before the Supreme Court rising to the challenge of Commission on Elections (Comelec) chairman Sixto Brillantes for disgruntled parties to sue the collegial body over its plan to proceed with the purchase of more than 80,000 election machines earlier found to be defective.

Leading the petitioners are former Vice President Teofisto Guingona, Auxiliary Bishop of Manila Broderick S. Pabillo and Solita "Winnie" C. Monsod of the Movement for Good Governance.

The suits are asking the high court to nullify a P 1 billion government contract for Commission on Elections’ (Comelec) purchase of some 82,000 PCOS machines (Precinct Count Optical Scan) from Smartmatic-TIM.

In a statement, one of the three petitioners said the "petition is being filed to nullify the new contract between Comelec and the Smartmatic-TIM to purchase the latter’s PCOS machines because the option to purchase had expired and is against the law, according to the Government Procurement Policy Board (GPPB) & Comelec Advisory Council (CAC); the PCOS machines were proven to be deficient with errors and bugs (as confirmed by Comelec & Smartmatic); and for other legal grounds."

Last March 22, the Comelec's Brillantes dared  those opposed to the second Comelec-Smartmatic deal “to sue” Comelec.

        In another petition for certiorari, prohibition, and mandamus, the petitioners led by Davao Archbishop Fernando Capalla, former Marawi City mayor Omar Alih, and former Quezon City congresswoman Mary Anne Susano claimed that the deal was marred with irregularities, hence, should be voided.

They bared in their petition that the deal was bereft of a public bidding which was clearly provided for by law.
Furthermore, the petitioners expressed fears over the Comelec’s technical skills and competency to maintain the machines while in its possession.

In their petition, the petitioners urged the SC to issue a temporary restraining order while the petition is awaiting resolution or ruling on the merits.

Likewise, they petitioned the high court to issue a mandamus compelling the Comelec to conduct a public bidding for the equipment.

They also pointed out the alleged technical infirmities during the 2010 polls which include delays in delivery, recall of compact flash cards, and disabling of important security features
 
Smartmatic-TIM won the contract for the automation of the 2010 presidential poll. It was the country’s first automated election to replace manual counting.

Last year, the  Supreme Court  (SC) turned down for lack of merit the motion filed by an advocacy group seeking to cite the Comelec in contempt.
         The Center for Empowerment in Governance (Cenpeg)  claims that the poll body acted contumaciously in imposing restrictions on the review of the source codes for the automated elections.
          In a five-page resolution, the Court en banc held otherwise and said that the Comelec has valid reasons for imposing restrictions as part of security measures.
          Under the guidelines of the Comelec, an interested party may review the source code but it must first sign a non-disclosure agreement, submit the methodology for review he proposes to use, do the review in a restricted facility on a read-only copy, not take out the code or any part of it or bring copy equipment, and submit to Comelec a report after the review.
          The SC added that the source codes used in the elections remains to be the intellectual property of Smartmatic-Total Information Management Corp. as the latter has not ceded its ownership right to the Comelec.
          “None of these conditions, essentially designed to prevent copying, appropriation, and unauthorized use of the source code, has been demonstrated as making it impossible for Cenpeg to conduct a proper source code review. Cenpeg has not even attempted to do the review under such conditions,” the Court declared.
          Cenpeg, according to the Court, cannot demand the same conditions for review that Comelec allowed SysTest Labs, the international election n systems certification company that conducted the source code review and certification that the law required.

          It explained that Systest Labs’ review and certification formed part of the process for completing the source code preparation. It is not the source code review contemplated for Cenpeg and other similarly placed parties or groups.

          In 2010 the Court issued a decision directing the Comelec to make the source codes for the AES technologies it used in the last May 10 national and local elections available to Cenpeg and other interested political parties or groups for independent review.

          Cenpeg claims that the source code remained important and relevant despite that the election had already been held in light of several admissions of errors and claims of fraud.

          Under RA 9369, the source code is described as the “human readable instructions that define what the computer equipment will do.

          In granting Cenpeg’s petition, the Court noted that Section 12 of Republic Act 9369 or the poll automation law  is clear that the Comelec is required to make the source code open to any interested party for review once an AES technology is selected for implementation.
   
          On  February 19, 2010, various groups, including Cenpeg presented a joint  statement that they had chosen not to take part in the scheduled source code review since it was limited to a “walkthrough” of the source codes.

          They noted that SysTest Labs, which conducted an earlier source code review and certification, did not work under the same restrictions and controls and was allowed four months to do the review.

    In its November 30, 2010 motion to cite Comelec in contempt, Cenpeg alleged that they demanded compliance with the Court’s decision but it refused to release to them the source code used in the elections.

    The Comelec, on the other hand, insisted that it has not refused to allow Cenpeg to conduct the subject source code review under restrictions that would prevent copying. ######