Republic of the
SUPREME COURT
EN BANC
|
H.
HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. BAGARES, ALLAN JONES F.
LARDIZABAL, GILBERT T. ANDRES, IMMACULADA D. GARCIA, ERLINDA T. MERCADO,
FRANCISCO A. ALCUAZ, MA. AZUCENA P. MACEDA, and ALVIN A. PETERS,
Petitioners, - versus - COMMISSION
ON ELECTIONS, Represented
by HON. CHAIRMAN JOSE MELO, COMELEC SPECIAL BIDS and AWARDS COMMITTEE,
represented by its CHAIRMAN HON. FERDINAND RAFANAN, DEPARTMENT OF BUDGET and MANAGEMENT,
represented by HON. ROLANDO ANDAYA, TOTAL INFORMATION MANAGEMENT CORPORATION
and SMARTMATIC INTERNATIONAL CORPORATION, Respondents. PETE QUIRINO-QUADRA, Petitioner-in-Intervention. SENATE OF THE PHILIPPINES, represented by its President, JUAN PONCE ENRILE, Movant-Intervenor. |
|
G.R. No. 188456 Present: PUNO, C.J., QUISUMBING,*
YNARES-SANTIAGO, CARPIO, CARPIO
MORALES, CHICO-NAZARIO, VELASCO,
JR., NACHURA, LEONARDO-DE
CASTRO, BRION, PERALTA, BERSAMIN, ABAD,
JJ. Promulgated: September
10, 2009 |
x-----------------------------------------------------------------------------------------x
D E C I S I O N
VELASCO, JR., J.:
In a democratic system of government,
the people’s voice is sovereign. Corollarily, choosing through the ballots the
men and women who are to govern the country is perhaps the highest exercise of
democracy. It is thus the interest of
the state to insure honest, credible and peaceful elections, where the sanctity
of the votes and the secrecy of the ballots are safeguarded, where the will of
the electorate is not frustrated or undermined. For when the popular will
itself is subverted by election irregularities, then the insidious seeds of
doubt are sown and the ideal of a peaceful and smooth transition of power is
placed in jeopardy. To automate, thus breaking away from a manual system of
election, has been viewed as a significant step towards clean and credible
elections, unfettered by the travails of the long wait and cheating that have
marked many of our electoral exercises.
The Commission on Elections
(Comelec), private respondents, the
In this petition for certiorari,
prohibition and mandamus with prayer for a restraining order and/or preliminary
injunction, petitioners H. Harry L. Roque, Jr., et al., suing as
taxpayers and concerned citizens, seek to nullify respondent Comelec’s award of
the 2010 Elections Automation Project (automation project) to the joint venture
of Total Information Management Corporation (TIM) and Smartmatic International
Corporation (Smartmatic)[1]
and to permanently prohibit the Comelec, TIM and Smartmatic from signing and/or
implementing the corresponding contract-award.
By Resolution[2] of
July 14, 2009, the Court directed the respondents as well as the University of
the Philippines (UP) Computer Center, National Computer Center (NCC) and
Information Technology Foundation of the Philippines (Infotech, hereinafter) to
submit their collective or separate comments to the petition on or before July
24, 2009. Before any of the comments
could actually be filed, Atty. Pete Quirino-Quadra sought leave to intervene.
In another resolution, the Court allowed the intervention and admitted the
corresponding petition-in-intervention.[3]
On July 29, 2009, the Court heard the
principal parties in oral arguments which was followed by the submission of
their and the resource persons’ instructive, albeit clashing, memoranda. The
Senate, through the Senate President, would later join the fray via a Motion for Leave to Intervene. In
a Resolution of August 25, 2009, the Court admitted the Senate’s comment-in-intervention.
From the petition, the separate
comments thereon, with their respective annexes, and other pleadings, as well as from admissions during
the oral arguments, the Court gathers the following facts:
On December 22, 1997, Congress
enacted Republic Act No. (RA) 8436 authorizing the adoption of an automated
election system (AES) in the May 11,
1998 national and local elections and onwards. The 1998, 2001, and 2004
national and local polls, however, came and went but purely manual elections
were still the order of the day. On January 23, 2007, the amendatory RA 9369[4]
was passed authorizing anew the Comelec to use an AES. Of particular relevance
are Sections 6 and 10 of RA 9369––originally Secs. 5 and 8, respectively of RA
8436, as amended––each defining Comelec’s specific mandates insofar as
automated elections are concerned. The AES was not utilized in the May 10, 2000
elections, as funds were not appropriated for that purpose by Congress and due
to time constraints.
RA 9369 calls for the creation of the Comelec
Advisory Council[5]
(CAC). CAC is to recommend, among other functions, the most appropriate,
applicable and cost-effective technology to be applied to the AES.[6]
To be created by Comelec too is the Technical Evaluation Committee (TEC)[7]
which is tasked to certify, through an established international certification
committee, not later than three months before the elections, by categorically
stating that the AES, inclusive of its hardware and software components, is
operating properly and accurately based on defined and documented standards.[8]
In August
2008, Comelec managed to automate the regional polls in the Autonomous Region
of Muslim Mindanao[9]
(ARMM), using direct recording electronics (DRE) technology[10]
in the
Accordingly,
in early March 2009, the Comelec released the Request for Proposal (RFP),
also known as Terms of Reference (TOR), for the nationwide automation of
the voting, counting, transmission, consolidation and canvassing of votes for
the May 10, 2010 Synchronized National and Local Elections. What is referred to
also in the RFP and other contract documents as the 2010 Elections Automation
Project (Automation Project) consists of three elaborate components, as
follows:
Component
1: Paper-Based AES.[15]
1-A. Election Management System (
Component
2: Provision for Electronic Transmission of Election Results using Public
Telecommunications Network; and
Component 3: Overall
Project Management
And obviously to address the possibility of
systems failure, the RFP required interested bidders to submit, among other
things: a continuity plan[17]
and a back-up plan. [18]
Under the
two-envelope system designed under the RFP,[19]
each participating bidder shall submit, as part of its bid, an Eligibility Envelope[20]
that should inter alia establish the
bidder’s eligibility to bid. On the other hand, the second envelope, or the Bid Envelope itself, shall contain two
envelopes that, in turn, shall contain the technical proposal and the financial
proposal, respectively.[21]
Subsequently,
the Comelec Special Bids and Awards Committee (SBAC), earlier constituted
purposely for the aforesaid project, caused the publication in different
newspapers of the Invitation to Apply for Eligibility and to Bid[22] for the
procurement of goods and services to be used in the automation project.[23] Meanwhile, Congress enacted RA 9525
appropriating some PhP 11.3 billion as supplemental budget for the May 10, 2010
automated national and local elections.
Of the ten
(10) invitation-responding consortia which obtained the bid documents, only
seven (7) submitted sealed applications for eligibility and bids[24]
which, per Bid Bulletin No. 24, were to be opened on a pre-set date, following
the convening of the pre-bid conference.
Under the RFP, among those eligible to participate in the bidding are
manufacturers, suppliers and/or distributors forming themselves into a joint
venture. A joint venture is defined as a group of two or more manufacturers,
suppliers and/or distributors that intend to be jointly and severally
responsible or liable for a particular contract.[25]
Among the submitted bids was that of the joint
venture (JV) of TIM and Smartmatic, the former incorporated under the Corporation
Code of the
After
declaring TIM-Smartmatic as the best complying bidder, the SBAC then directed
the joint venture to undertake post-qualification screening, and its PCOS
prototype machines––the Smarmatic Auditable Electronic System (SAES) 1800––to undergo end-to-end[30]
testing to determine compliance with the pre-set criteria.
In its Memorandum of June 01, 2009, on the
Subject: Systems Evaluation Consolidated Report and Status Report on the
Post-Qualification Evaluation Procedures, the SBAC Technical Working Group (TWG) stated that it
was undertaking a 4-day (May 27 to May 30, 2009) test evaluation of TIM and Smartmatic’s
proposed PCOS project machines. Its conclusion: “The demo systems presented PASSED all tests as required in the 26-item criteria
specified in the [RFP]” with 100% accuracy rating.[31]
The TWG also validated the eligibility, and technical and financial
qualifications of the TIM-Smartmatic joint venture.
On June 9,
2009, Comelec, upon the recommendation of its SBAC, the CAC and other
stakeholders, issued Resolution No. (Res.) 8608[32]
authorizing the SBAC to issue, subject to well-defined conditions, the notice
of award and notice to proceed in favor of the winning joint venture.
Soon after,
TIM wrote Comelec expressing its desire to quit the JV partnership. In time, however, the parties were able to
patch up what TIM earlier described as irreconcilable differences between
partners.
What
followed was that TIM and Smartmatic, pursuant to the Joint Venture Agreement
(JVA),[33]
caused the incorporation of a joint venture corporation (JVC) that would enter
into a contract with the Comelec. On July 8, 2009, the Securities and Exchange
Commission issued a certificate of incorporation in favor of Smartmatic TIM
Corporation. Two days after, or on July 10, 2009, Comelec and Smartmatic TIM
Corporation, as provider, executed a contract[34]
for the lease of goods and services under the contract for the contract amount
of PhP 7,191,484,739.48, payable as the “Goods and Services are delivered
and/or progress is made in accordance [with pre-set] Schedule of Payments.”[35] On the same date, a Notice to Proceed[36] was sent to, and
received by, Smartmatic TIM Corporation.
Meanwhile,
or on July 9, 2009, petitioners interposed the instant recourse which, for all
intents and purposes, impugns the validity and seeks to nullify the July 10,
2009 Comelec-Smartmatic-TIM Corporation automation contract adverted to. Among
others, petitioners pray that respondents be permanently enjoined from
implementing the automation project on the submission that:
PUBLIC RESPONDENTS COMELEC AND COMELEC-SBAC
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
IN AWARDING THE 2010 ELECTIONS AUTOMATION PROJECT TO PRIVATE RESPONDENTS TIM
AND SMARTMATIC FOR THE FOLLOWING REASONS:
x x x COMELEC DID NOT CONDUCT ANY PILOT
TESTING OF THE x x x PCOS MACHINES OFFERED BY PRIVATE RESPONDENTS SMARTMATIC
AND TIM, IN VIOLATION OF [RA] 8436 (AS AMENDED BY [RA] 9369)
THE [PCOS] MACHINES [THUS] OFFERED BY PRIVATE RESPONDENTS x x x DO NOT
SATISFY THE MINIMUM SYSTEM CAPABILITIES
SET BY [RA] NO. 8436 (AS AMENDED BY [RA] 9369).
PRIVATE RESPONDENTS x x x DID NOT SUBMIT THE
REQUIRED DOCUMENTS DURING THE BIDDING PROCESS THAT SHOULD ESTABLISH THE DUE
EXISTENCE, COMPOSITION, AND SCOPE OF THEIR JOINT VENTURE, IN VIOLATION OF THE
SUPREME COURT’S HOLDING IN INFORMATION TECHNOLOGY FOUNDATION OF THE
PHILIPPINES, vs. COMELEC (G.R. No. 159139, Jan. 13, 2004).
THERE WAS NO VALID JOINT
VENTURE AGREEMENT [JVA] BETWEEN PRIVATE RESPONDENTS SMARTMATIC AND TIM DURING
THE BIDDING, IN VIOLATION OF THE SUPREME COURT’S HOLDING IN INFORMATION
TECHNOLOGY FOUNDATION OF THE PHILIPPINES vs. COMELEC x x x WHICH REQUIRES A JOINT VENTURE
TO INCLUDE A COPY OF ITS [JVA] DURING THE BIDDING.
THE ALLEGED JOINT VENTURE COMPOSED OF PRIVATE
RESPONDENTS SMARTMATIC AND TIM, DOES NOT SATISFY THE SUPREME COURT’S DEFINITION
OF A “JOINT VENTURE” IN INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES
vs. COMELEC x x x WHICH
“REQUIRES A COMMUNITY OF INTEREST IN THE PERFORMANCE OF THE SUBJECT MATTER.”
Filed as
it was before contract signing, the petition understandably did not implead
Smartmatic TIM Corporation, doubtless an indispensable party to these
proceedings, an incident that did not escape Comelec’s notice.[37]
As a
preliminary counterpoint, either or both public and private respondents
question the legal standing or locus
standi of petitioners, noting in this regard that the petition did not even
raise an issue of transcendental importance, let alone a constitutional
question.
As an additional point, respondents
also urge the dismissal of the petition on the ground of prematurity,
petitioners having failed to avail themselves of the otherwise mandatory
built-in grievance mechanism under Sec. 55 in relation to Sec. 58 of RA 9184,
also known as the Government Procurement Reform Act, as shall be discussed
shortly.
PROCEDURAL GROUNDS
The Court is not disposed to dismiss the petition on procedural grounds
advanced by respondents.
Locus Standi and Prematurity
It is true, as postulated, that to
have standing, one must, as a rule, establish having suffered some actual or
threatened injury as a result of the alleged illegal government conduct; that
the injury is fairly traceable to the challenged action; and that the injury is
likely to be redressed by a favorable action.[38] The prescription on standing, however, is a
matter of procedure. Hence, it may be relaxed, as the Court has often relaxed
the rule for non-traditional plaintiffs, like ordinary citizens and taxpayers,
when the public interest so requires, such as when the matter is of transcendental
importance, of overarching significance to society, or of paramount public
interest.[39] As we wrote in Chavez v. PCGG,[40]
where issues of public importance are presented, there is no necessity to show
that the suitor has experienced or is in actual danger of suffering direct and
personal injury as the requisite injury is assumed.
Petitioners’
counsel, when queried, hedged on what specific constitutional proscriptions or
concepts had been infringed by the award of the subject automation project to
Smartmatic TIM Corporation, although he was heard to say that “our objection to the system is anchored on
the Constitution itself a violation [sic] of secrecy of voting and the sanctity of the ballot.”[41] Petitioners also depicted the covering
automation contract as constituting an abdication by the Comelec of its
election-related mandate under the Constitution, which is to enforce and
administer all laws relative to the conduct of elections. Worse still,
according to the petitioners, the abdication, with its anti-dummy dimension, is
in favor of a foreign corporation that will be providing the hardware and
software requirements.[42]
And when pressed further, petitioners came out with the observation that, owing
in part to the sheer length of the ballot, the PCOS would not comply with Art.
V, Sec. 2 of the Constitution[43]
prescribing secrecy of voting and sanctity of the ballot.[44]
There is
no doubt in our mind, however, about the compelling significance and the
transcending public importance of the one issue underpinning this petition: the
success––and the far-reaching grim implications of the failure––of the
nationwide automation project that will be implemented via the challenged automation contract.
The doctrinal formulation may vary,
but the bottom line is that the Court may except a particular case from the
operations of its rules when the demands of justice so require.[45]
Put a bit differently, rules of procedure are merely tools designed to
facilitate the attainment of justice.[46]
Accordingly, technicalities and procedural barriers should not be allowed to
stand in the way, if the ends of justice would not be subserved by a rigid
adherence to the rules of procedure.[47] This postulate on procedural technicalities
applies to matters of locus standi and the presently invoked principle
of hierarchy of courts, which discourages direct resort to the Court if the
desired redress is within the competence of lower courts to grant. The policy
on the hierarchy of courts, which petitioners indeed failed to observe, is not
an iron-clad rule. For indeed the Court has full discretionary power to take
cognizance and assume jurisdiction of special civil actions for certiorari and mandamus filed directly
with it for exceptionally compelling reasons[48]
or if warranted by the nature of the issues clearly and specifically raised in
the petition.[49]
The exceptions that justify a deviation from the policy on
hierarchy appear to obtain under the premises. The Court will for the nonce
thus turn a blind eye to the judicial structure intended, first and foremost,
to provide an orderly dispensation of justice.
Hierarchy of Courts
At this stage, we shall
dispose of another peripheral issue before plunging into the core substantive
issues tendered in this petition.
Respondents contend that petitioners
should have availed themselves of the otherwise mandatory protest mechanism set
forth in Sections 55 and 58 of the procurement law (RA 9184) and the
counterpart provisions found in its Implementing Rules and Regulations (IRR)-A
before seeking judicial remedy. Insofar
as relevant, Sec. 55 of RA 9184 provides that decisions of the bids and awards
committee (BAC) in all stages of procurement may be protested, via a “verified position paper,” to the head of
the procuring agency. On the other hand, the succeeding Sec. 58 states that
court action may be resorted to only after the protest contemplated in Sec. 55
shall have been completed. Petitioners except. As argued, the requirement to
comply with the protest mechanism, contrary to what may have been suggested in Infotech, is imposed on the bidders.[50]
Petitioners’ position is correct. As
a matter of common sense, only a bidder
is entitled to receive a notice of the protested BAC action. Only a losing
bidder would be aggrieved by, and ergo
would have the personality to challenge, such action. This conclusion finds
adequate support from the ensuing provisions of the aforesaid IRR-A:
55.2. The verified position paper shall contain the following documents:
a) The name of bidder;
b) The office address of the bidder x x x.
SUBSTANTIVE
ISSUES
We now turn to the central issues tendered in the petition which, in terms of subject matter, revolved around two concerns, viz: (1) the Joint Venture Agreement (JVA) of Smartmatic and TIM; and (2) the PCOS machines to be used. Petitioners veritably introduced another issue during the oral arguments, as amplified in their memorandum, i.e. the constitutionality and statutory flaw of the automation contract itself. The petition-in-intervention confined itself to certain features of the PCOS machines.
The Joint Venture
Agreement: Its Existence and Submission
The issue respecting the existence and submission of
the TIM-Smartmatic JVA does not require an extended disquisition, as repairing
to the records would readily provide a satisfactory answer. We note in fact that the petitioners do not
appear to be earnestly pressing the said issue anymore, as demonstrated by
their counsel’s practically cavalier discussion thereof during the oral
argument. When reminded, for instance, of private respondents’ insistence on having
in fact submitted their JVA dated April 23, 2009, petitioners’ counsel
responded as follows: “We knew your honor
that there was, in fact, a joint venture agreement filed. However, because of
the belated discovery that [there] were irreconcilable differences, we then
made a view that this joint venture
agreement was a sham, at best pro
forma because it did not contain all the required stipulations in order
to evidence unity of interest x x x.”[51]
Indeed,
the records belie petitioners’ initial posture that TIM and Smartmatic, as
joint venture partners, did not include in their submitted eligibility envelope
a copy of their JVA. The SBAC’s Post Qualification Evaluation Report
(Eligibility) on TIM-Smartmatic, on page 10, shows the following entry: “Valid
Joint Venture Agreement, stating among things, that the members are jointly and
severally liable for the whole obligation, in case of joint venture – Documents
verified compliance.”[52]
Contrary to what the petitioners posit, the
duly notarized JVA, as couched, explained the nature and the limited purpose[53]
of the joint venture and expressly defined, among other things, the
composition, scope, and the 60-40 capital structure of the aggroupment.[54]
The JVA also contains provisions on the management[55]
and division of profits.[56]
Article 3[57] of the
JVA delineates the respective participations and responsibilities of the joint
venture partners in the automation project.
Given the
foregoing perspective, the Court is at a loss to understand how petitioners can
assert that the Smartmatic-TIM consortium has failed to prove its joint venture
existence and/or to submit evidence as would enable the Comelec to know such
items as who it is dealing with, which between the partners has control over
the decision-making process, the amount of investment to be contributed by each
partner, the parties’ shares in the profits and like details. 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 have really no factual basis.
It may be,
as petitioners observed, that the TIM-Smartmatic joint venture remained an
unincorporated aggroupment during the bid-opening and evaluation stages. It
ought to be stressed, however, that the fact of non-incorporation was without a
vitiating effect on the validity of the tender offers. For the bidding ground
rules, as spelled out primarily in the RFP and the clarificatory bid bulletins,
does not require, for bidding purposes, that there be an incorporation of the
bidding joint ventures or consortiums. In fact, Bid Bulletin Nos. 19 and 20
recognize the existence and the acceptability of proposals of unincorporated
joint ventures. In response to a poser, for example, regarding the 60% Filipino
ownership requirement in a joint venture arrangement, the SBAC, in its Bid
Bulletin No. 22, stated: “In an unincorporated joint venture,
determination of the required Filipino participation may be made by examining
the terms and conditions of the [JVA]
and other supporting financial documents submitted by the joint venture.” (Emphasis ours.) Petitioners, to be sure,
have not shown that incorporation is part of the pass/fail criteria used in
determining eligibility.
Petitioners
have made much of the Court’s ruling in Information Technology Foundation of
the
Petitioners’
invocation of Infotech is utterly
misplaced. Albeit Infotech and this
case are both about modernizing the election process and bidding joint
ventures, the relevant parallelism ends there. Cast as they are against
dissimilar factual milieu, one cannot plausibly set Infotech side with and
contextually apply to this case the ratio of Infotech. Suffice it to delve on the most glaring of differences.
In Infotech, the winning bid
pertained to the consortium of Mega Pacific, a purported joint venture. Extant
records, however, do not show the formation of such joint venture, let alone
its composition. To borrow from the ponencia of then Justice, later
Chief Justice, Artemio Panganiban, “there
is no sign whatsoever of any [JVA], consortium agreement [or] memorandum
agreement x x x executed among the
members of the purported consortium.”[59]
There was in fine no evidence to show that the alleged joint venture partners
agreed to constitute themselves into a single entity solidarily responsible for
the entirety of the automation contract. Unlike the purported Mega Pacific consortium
in Infotech, the
existence in this case of the bidding joint venture of Smarmatic and TIM is
properly documented and spread all over the bid documents. And to stress, TIM
and Smartmatic, in their JVA, unequivocally agreed between themselves to perform
their respective undertakings. And over and beyond their commitments to each
other, they undertook to incorporate, if called for by the bidding results, a
JVC that shall be solidarily liable with them for any actionable breach of the
automation contract.
In Infotech, the Court chastised the Comelec for dealing with an entity, the full identity of which the poll body knew nothing about. Taking a cue from this holding, petitioners tag the TIM-Smartmatic JVA as flawed and as one that would leave the Comelec “hanging” for the non-inclusion, as members of the joint venture, of three IT providers. The three referred to are Jarltech International, Inc. (Jarltech), a subsidiary of Smartmatic that manufactures the Smartmatic voting machines; Dominion Voting Systems (Domino), the inventor of said PCOS machines; and 2GO Transportation System Corporation (2GO), the subcontractor responsible for the distribution of the PCOS machines throughout the country.
Petitioners’ beef against the
TIM-Smartmatic JVA is untenable. First off, the Comelec knows the very entities
whom they are dealing with, which it can hold solidary liable under the
automation contract, should there be contract violation. Secondly, there is no
requirement under either RA 8436, as amended, or the RFP, that all the
suppliers, manufacturers or distributors involved in the transaction should be
part of the joint venture. On the contrary, the Instruction to Bidders––as
petitioners themselves admit[60]––allows
the bidder to subcontract portions of the goods or services under the
automation project.[61]
To digress a bit, petitioners have
insisted on the non-existence of a bona
fide JVA between TIM and Smarmatic. Failing to gain traction for their
indefensible posture, they would thrust on the Court the notion of an invalid
joint venture due to the non-inclusion of more companies in the existing
TIM-Smartmatic joint venture. The irony is not lost on the Court.
This brings us to the twin technical issues tendered herein
bearing on the PCOS machines of Smartmatic.
At its most basic, the petition ascribes grave abuse of
discretion to the Comelec for, among other things, awarding the automation
project in violation of RA 8436, as amended. Following their line, no pilot
test of the PCOS technology Smartmatic-TIM offered has been undertaken; hence,
the Comelec cannot conduct a nationwide automation of the 2010 polls using the
machines thus offered. Hence, the contract award to Smartmatic-TIM with their
untested PCOS machines violated RA 8436, as amended by RA 9369, which mandates
that with respect to the May 2010 elections and onwards, the system procured
must have been piloted
in at least 12 areas referred to in Sec. 6 of RA 8436, as amended. What is more, petitioners assert, private
respondents’ PCOS machines do not satisfy the minimum system capabilities set
by the same law envisaged to ensure transparent and credible voting, counting
and canvassing of votes. And as earlier narrated, petitioners would
subsequently add the abdication angle in their bid to nullify the automation
contract.
Pilot Testing Not Necessary
Disagreeing, as to be expected, private respondents maintain
that there is nothing in the applicable law requiring, as a pre-requisite for
the 2010 election automation project award, that the prevailing bidder’s
automation system, the PCOS in this case, be subjected to pilot testing. Comelec echoes its co-respondents’ stance on
pilot testing, with the added observation that nowhere in the statutory
provision relied upon are the words “pilot testing” used.[62]
The Senate’s position and its supporting arguments match those of private
respondents.
The respondents’ thesis
on pilot testing and the logic holding it together are well taken. There can be
no argument about the phrase “pilot test” not being found in the law. But does
it necessarily follow that a pilot test is absolutely not contemplated in the
law? We repair to the statutory provision petitioners cited as requiring a
pilot run, referring to Sec. 6 of RA 8436, as amended by RA 9369, reading as
follows:
Sec. 5. Authority to use an Automated
Election System.- To carry out the above stated-policy, the [Comelec], x x x
is hereby authorized to use an automated election system or systems in the same
election in different provinces, whether paper-based or a direct recording
electronic election system as it may deem appropriate and practical for the
process of voting, counting of votes and canvassing/consolidation and
transmittal of results of electoral exercises: Provided, that for the regular national and local
elections, which shall be held immediately after the effectivity of this
Act, the AES shall be used in at least two highly urbanized cities and two
provinces each in Luzon, Visayas, and Mindanao to be chosen by the
[Comelec]: Provided, further,
That local government units whose officials have been the subject of
administrative charges within sixteen (16) month prior to the May 14, 2007
elections shall not be chosen. Provided, finally, That no area shall be
chosen without the consent of the Sanggunian of the local government unit
concerned. The term local government unit as used in this provision shall refer
to a highly urbanized city or province. In succeeding regular national or local
elections, the AES shall be implemented. (Emphasis and underscoring added.)
RA 9369, which envisages an AES, be it
paper-based or direct-recording electronic, took effect in the second week of
February 2007 or thereabout.[63]
The “regular national and local
elections” referred to after the “effectivity
of this Act” can be no other than the May 2007 regular elections, during
which time the AES shall, as the law is worded, be used in at least two highly
urbanized cities and provinces in Luzon, Visayas and Mindanao. The Court takes
judicial notice that the May 2007 elections did not deploy AES, evidently due
to the mix of time and funding constraints.
To the petitioners, the
underscored portion of the aforequoted Sec. 6 of RA 8436 is the pilot-testing
provision that Comelec failed to observe.
We are not persuaded.
From the practical
viewpoint, the pilot testing of the technology in question in an actual,
scheduled electoral exercise under harsh conditions would have been the ideal
norm in computerized system implementation. The underscored proviso of Sec. 6
of RA 8436 is not, however, an authority for the proposition that the pilot
testing of the PCOS in the 2007 national elections in the areas thus specified
is an absolute must for the machines’ use in the 2010 national/local elections.
The Court can concede that said proviso, with respect to the May 2007 elections,
commands the Comelec to automate in at least 12 defined areas of the country.
But the bottom line is that the required 2007 automation, be it viewed in the
concept of a pilot test or not, is not a mandatory requirement for the choice
of system in, or a prerequisite for, the full automation of the May 2010
elections.
As may be noted, Sec. 6
of RA 8436 may be broken into three essential parts, the first partaking of the
nature of a general policy declaration: that Comelec is authorized to automate
the entire elections. The second part states that for the regular national and
local elections that shall be held in May 2007, Comelec shall use the AES, with
an option, however, to undertake automation, regardless of the technology to be
selected, in a limited area or, to be more precise, in at least two highly
urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to be chosen by the Comelec. On the
other hand, the last part, phrased sans
reference to the May 2007 elections, commands thus: “[I]n
succeeding regular national or local
elections, the [automated election system] shall be implemented.” Taken in its proper context, the
last part is
indicative of the legislative intent for the May 2010 electoral exercise to be fully automated, regardless of
whether or not pilot testing was run in the 2007 polls.
To argue that pilot
testing is a condition precedent to a full automation in 2010 would doubtless
undermine the purpose of RA 9369. For,
as aptly observed during the oral arguments, if there was no political exercise
in May 2007, the country would theoretically be barred forever from having full
automation.
Sec. 6 of the amended RA
8436, as couched, therefore, unmistakably conveys the idea of unconditional
full automation in the 2010 elections. A construal making pilot testing of the
AES a prerequisite or condition sine qua
non to putting the system in operation in the 2010 elections is tantamount
to reading into said section something beyond the clear intention of Congress,
as expressed in the provision itself. We reproduce with approval the following
excerpts from the comment of the Senate itself:
The plain wordings
of RA 9369 (that amended RA 8436) commands that the 2010 elections shall be
fully automated, and such full automation is not conditioned on “pilot testing”
in the May 2007 elections. Congress merely gave COMELEC the flexibility to
partially use the AES in some parts of the country for the May 2007 elections.[64]
Lest it be overlooked, an
AES is not synonymous to and ought not to be confused with the PCOS. Sec. 2(a)
of RA 8436, as amended, defines an AES as “a
system using appropriate technology which has been demonstrated in the voting,
counting, consolidating, canvassing and transmission of election results, and
other electoral processes.” On the other hand, PCOS refers to a technology
wherein an optical ballot scanner, into which optical scan paper ballots marked
by hand by the voter are inserted to be counted.[65]
What may reasonably be deduced from these definitions is that PCOS is merely
one of several automated voting, counting or canvassing technologies coming
within the term AES, implying in turn that the automated election system or
technology that the Comelec shall adopt in future elections need not, as a
matter of mandatory arrangement, be piloted in the adverted two highly
urbanized cities and provinces.
In perspective, what may be taken as
mandatory prerequisite for the full automation of the 2010 regular national/
local elections is that the system to be procured for that exercise be a
technology tested either here or abroad. The ensuing Section 8 of RA 8436, as
amended, says so.
SEC 12. Procurement of Equipment and Materials.– To achieve the purpose of this Act, the Commission is authorized to procure, xxx, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities, and other services, from local or foreign sources xxx. With respect to the May 10, 2010 elections and succeeding electoral exercises, the system procured must have demonstrated capability and been successfully used in prior electoral exercise here or abroad. Participation in the 2007 pilot exercise shall not be conclusive of the system’s fitness. (Emphasis supplied).
While the underscored portion makes
reference to a “2007 pilot exercise,” what it really exacts is that, for the
automation of the May 2010 and subsequent elections, the PCOS or any AES to be
procured must have demonstrated its capability and success in either a local or
a foreign electoral exercise. And as expressly declared by the provision,
participation in the 2007 electoral exercise is not a guarantee nor is it
conclusive of the system’s fitness. In
this regard, the Court is inclined to agree with private respondents’
interpretation of the underscored portion in question: “The provision clearly conveys that the [AES]
to be used in the 2010 elections need not have been used in the 2007 elections,
and that the demonstration of its capability need not be in a previous
Philippine election. Demonstration
of the success and capability of the PCOS may be in an electoral exercise in a
foreign jurisdiction.”[66]
As determined by the Comelec, the PCOS system had been successfully deployed in
previous electoral exercises in foreign countries, such as
At any event, any lingering doubt on the issue of whether or
not full automation of the 2010 regular elections can validly proceed without a
pilot run of the AES should be put to rest with the enactment in March 2009 of
RA 9525,[68] in
which Congress appropriated PhP 11.301 billion to automate the 2010 elections,
subject to compliance with the transparency and accuracy requirements in
selecting the relevant technology of the machines, thus:
Sec. 2. Use of Funds.– x x x Provided, however, That
disbursement of the amounts herein appropriated or any part thereof shall be
authorized only in strict compliance with the Constitution, the provisions of [RA]
No. 9369 and other election laws incorporated in said Act as to ensure the
conduct of a free, orderly, clean, honest and credible election and shall adopt
such measures that will guaranty transparency and accuracy in the selection
of the relevant technology of the machines to be used on May 10, 2010 automated
national and local elections. (Emphasis added.)
It may safely be assumed that Congress
approved the bill that eventually became RA 9525, fully aware that the system
using the PCOS machines were not piloted in the 2007 electoral exercise. The
enactment of RA 9525 is to us a compelling indication that it was never
Congress’ intent to make the pilot testing of a particular automated election
system in the 2007 elections a condition precedent to its use or award of the
2010 Automation Project. The comment-in-intervention of the Senate says as
much.
Further, the highly charged issue of whether or not the 2008
ARMM elections––covering, as NCC observed, three conflict-ridden island
provinces––may be treated as substantial compliance with the “pilot test”
requirement must be answered in the affirmative. No less than Senator Richard
J. Gordon himself, the author of the law, said that “the system has been tried
and tested in the ARMM elections last year, so we have to proceed with the
total implementation of the law.”[69]
We note, though, the conflicting views of the NCC[70]
and ITFP[71] on the
matter. Suffice it to state at this
juncture that the system used in the 2008 ARMM election exercise bears, as
petitioners to an extent grudgingly admit, [72] a
similarity with the PCOS. The following, lifted from the Comelec’s comment, is
to us a fair description of how the two systems (PCOS and CCOS) work and where
the difference lies:
xxx the elections in the [ARMM] utilized the Counting Center Optical Scan (CCOS), a system which uses the Optical Mark Reader (OMR), the same technology as the PCOS.
Under the CCOS, the voters cast their votes by shading or marking the circles in the paper ballots which corresponded to the names of their chosen candidates [like in PCOS]. Thereafter, the ballot boxes were brought to the counting centers where they were scanned, counted and canvassed.
xxx
Under the PCOS, the counting, consolidation and canvassing of the votes are
done at the precinct level. The election
results at the precincts are then electronically transmitted to the next level,
and so on. xxx PCOS dispenses with the physical transportation of ballot boxes
from the precincts to the counting centers.[73]
Moreover, it has been proposed that a
partial automation be implemented for the May 2010 elections in accordance with
Section 5 of RA 8436, as amended by RA 9369 instead of full automation. The Court cannot agree as such proposition
has no basis in law. Section 5, as worded, does not allow for partial
automation. In fact, Section 5 clearly states that “the AES shall be implemented nationwide.”[74]
It behooves this Court to follow the letter and intent of the law for full
automation in the May 2010 elections.
PCOS Meets Minimum Capabilities
Standards
As another ground for the
nullification of the automation contract, petitioners posit the view that the
PCOS machines do not satisfy the minimum system capabilities prescribed by RA
8436, as amended. To a specific point, they suggest that the PCOS system
offered and accepted lacks the features that would assure accuracy in the
recording and reading of votes, as well as in the tabulation,
consolidation/canvassing, electronic transmission, storage results and accurate
ballot counting.[75] In this
particular regard, petitioners allege that, based on Smartmatic’s website, the
PCOS has a margin of error of from 2% to 10%, way beyond that of the required
99.99% accuracy in the counting of votes.[76]
The minimum system capabilities provision cited is Sec. 7 of
RA 8436, as amended, and the missing features referred to by petitioners are
pars. (b) and (j). In full, Sec. 7 of RA
8436, as amended, reads:
SEC. 6. Minimum System Capabilities. - The automated election system must at least have the following functional capabilities:
(a)
Adequate
security against unauthorized access;
(b)
Accuracy
in recording and reading of votes as well as in the tabulation,
consolidation/canvassing, electronic transmission, and storage of results;
(c)
Error
recovery in case of non-catastrophic failure of device;
(d)
System
integrity which ensures physical stability and functioning of the vote
recording and counting process;
(e)
Provision
for voter verified paper audit trail;
(f)
System
auditability which provides supporting documentation for verifying the
correctness of reported election results;
(g)
An
election management system for preparing ballots and programs for use in the
casting and counting of votes and to consolidate, report and display election
result in the shortest time possible;
(h)
Accessibility
to illiterates and disabled voters;
(i)
Vote
tabulating program for election, referendum or plebiscite;
(j)
Accurate
ballot counters;
(k)
Data
retention provision;
(l)
Provide
for the safekeeping, storing and archiving of physical or paper resource used
in the election process;
(m)
Utilize or generate official ballots as herein
defined;
(a)
Provide
the voter a system of verification to find out whether or not the machine has
registered his choice; and
(o) Configure access control for sensitive system data and function.
In
the procurement of this system, the Commission shall develop and adopt an
evaluation system to ascertain that the above minimum system capabilities are
met. The evaluation system shall be developed with the assistance of an
advisory council.
From the records before us, the Court
is fairly satisfied that the Comelec has adopted a rigid technical evaluation
mechanism, a set of 26-item/check list criteria, as will be enumerated shortly,
to ensure compliance with the above minimum systems capabilities.
The SBAC Memorandum[77]
of June 03, 2009, as approved by Comelec Res. 8608,[78]
categorically stated that the SBAC-TWG submitted its report that
TIM/Smartmatic’s proposed systems and machines PASSED all the end-to-end demo
tests using the aforementioned 26-item criteria, inclusive of the accuracy
rating test of at least 99.955%. As appearing in the SBAC-TWG report, the
corresponding answers/remarks to each of the 26 individual items are as herein
indicated:[79]
ITEM
|
REQUIREMENT
|
REMARK/DESCRIPTION |
|
1 |
Does the system allow manual feeding of a ballot into the
PCOS machine? |
Yes. The proposed PCOS machine accepted the test ballots which were manually fed one at a time. |
|
2 |
Does the system scan a ballot sheet at the speed of at
least 2.75 inches per second? |
Yes. A 30-inch ballot was used in this test. Scanning the
30-inch ballot took 2.7 seconds, which translated to 11.11inches per second. |
|
3 |
Is the system able to capture and store in an encrypted
format the digital images of the ballot for at least 2,000 ballot sides
(1,000 ballots, with back to back printing)? |
Yes the system captured the images of the 1,000 ballots in encrypted format. Each of the 1,000 images files contained the images of the front and back sides of the ballot, totaling to 2,000 ballot side. To verify the captured ballot images, decrypted copies of the encrypted files were also provided. The same were found to be digitized representations of the ballots cast. |
|
4 |
Is the system a fully integrated single device as
described in item no. 4 of Component 1-B? |
Yes. The proposed PCOS is a fully integrated single device, with built-in printer and built-in data communications ports (Ethernet and USB). |
|
5 |
Does the system have a scanning resolution of at least 200
dpi? |
Yes. A portion of a filled up marked oval was blown up using image editor software to reveal the number of dots per inch. The sample image showed 200 dpi. File properties of the decrypted image file also revealed 200 dpi. |
|
6 |
Does the system scan in grayscale? |
Yes. 30 shades of gray were scanned in the test PCOS machine, 20 of which were required, exceeding the required 4-bit/16 levels of gray as specified in the Bid Bulletin No. 19. |
|
7 |
Does the system require authorization and authentication
of all operators, such as, but not limited to, usernames and passwords, with
multiple user access levels? |
Yes. The system required the use of a security key with different sets of passwords/PINs for Administrator and Operator users. |
|
8 |
Does the system have an electronic display? |
Yes. The PCOS machine makes use of an LCD display to show information: · if a ballot may be inserted into the machine; · if a ballot is being processed; if a ballot is being rejected; · on other instructions and information to the voter/operator. |
|
9 |
Does the system employ error handling procedures,
including, but not limited to, the use of error prompts and other related
instructions? |
Yes. The PCOS showed error messages on its screen whenever a ballot is rejected by the machine and gives instructions to the voter on what to do next, or when there was a ballot jam error. |
|
10 |
Does the system count the voter’s vote as marked on the
ballot with an accuracy rating of at least 99.995%? |
Yes. The two rounds of tests were conducted for this test using only valid marks/shades on the ballots. 20,000 marks were required to complete this test, with only one (1) allowable reading error. 625 ballots with 32 marks each were used for this test. During the comparison of the PCOS-generated results with the manually prepared/predetermined results, it was found out that there were seven (7) marks which were inadvertently missed out during ballot preparation by the TWG. Although the PCOS-generated results turned out to be 100% accurate, the 20,000-mark was not met thereby requiring the test to be repeated. To prepare for other possible missed out marks,650 ballots with (20,800 marks) were used for the next round of test, which also yielded 100% accuracy. |
|
11 |
Does the system detect and reject fake or spurious, and
previously scanned ballots? |
Yes. This test made use of one (1) photocopied ballot and one (1) “re-created” ballot. Both were rejected by the PCOS. |
|
12 |
Does the system scan both sides of a ballot and in any
orientation in one pass? |
Yes. Four (4) ballots with valid marks were fed into the PCOS machine in the four (4) portrait orientations specified in Bid Bulletin No. 4 (either back or front, upside down or right side up), and all were accurately captured. |
|
13 |
Does the system have necessary safeguards to determine the
authenticity of a ballot, such as, but not limited to, the use of bar codes,
holograms, color shifting ink, micro printing, to be provided on the ballot,
which can be recognized by the system? |
Yes. The system was able to recognize if the security features on the ballot are “missing”. Aside from the test on the fake or spurious ballots (Item No. 11), three (3) test ballots with tampered bar codes and timing marks were used and were all rejected by the PCOS machine. The photocopied ballot in the test for Item No. 11 was not able to replicate the UV ink pattern on top portion of the ballot causing the rejection of the ballot. |
|
14 |
Are the names of the candidates pre-printed on the ballot? |
Yes. The Two sample test ballots of different lengths were provided: one (1) was 14 inches long while the other was 30 inches long. Both were 8.5 inches wide. The first showed 108 pre-printed candidate names for the fourteen (14) contests/positions, including two (2) survey questions on gender and age group, and a plebiscite question. The other showed 609 pre-printed candidate names, also for fourteen (14) positions including three (3) survey questions. |
|
15 |
Does each side of the ballot sheet accommodate at least
300 names of candidates with a minimum font size of 10, in addition to other
mandatory information required by law? |
Yes. The 30-inch ballot, which was used to test Item No. 2, contained 309 names for the national positions and 300 names for local positions. The total pre-printed names on the ballot totaled 609. This type of test ballot was also used for test voting by the public, including members of the media. Arial Narrow, font size 10, was used in the printing of the candidate names. |
|
16 |
Does the system recognize full shade marks on the
appropriate space on the ballot opposite the name of the candidate to be
voted for? |
Yes. The ballots used for the accuracy test (Item No. 10), which made use of full shade marks, were also used in this test and were accurately recognized by the PCOS machine. |
|
17 |
Does the system recognize partial shade marks on the
appropriate space on the ballot opposite the name of the candidate to be
voted for? |
Yes. Four (4) test ballots were used with one (1) mark each per ballot showing the following pencil marks: · top half shade; · bottom half shade; · left half shade; and · right half shade These partial shade marks were all recognized by the PCOS
machine |
|
18 |
Does the system recognize check (ü)marks
on the appropriate space on the ballot opposite the name of the candidate to
be voted for? |
Yes. One (1) test ballot with one check (ü) mark, using a pencil, was used for this test.
The mark was recognized successfully. |
|
19 |
Does the system recognize x marks on the appropriate space
on the ballot opposite the name of the candidate to be voted for? |
Yes. One (1) test ballot with one x mark, using a pencil, was used for this test.
The mark was recognized successfully. |
|
20 |
Does the system recognize both pencil and ink marks on the
ballot? |
Yes. The 1000 ballots used in the accuracy test (Item No. 10) were marked using the proposed marking pen by the bidder. A separate ballot with one (1) pencil mark was also tested. This mark was also recognized by the PCOS machine. Moreover, the tests for Items No. 17, 18 and 19 were made using pencil marks on the ballots. |
|
21 |
In a simulation of a system shut down, does the system
have error recovery features? |
Yes. Five (5) ballots were used in this test. The power cord was pulled from the PCOS while the 3rd ballot was in the middle of the scanning procedure, such that it was left “hanging” in the ballot reader. After resumption of regular power supply, the PCOS machine was able to restart successfully with notification to the operator that there were two (2) ballots already cast in the machine. The “hanging” 3rd ballot was returned to the operator and was able to be re-fed into the PCOS machine. The marks on all five (5) were all accurately recognized.
|
|
22 |
Does the system have transmission and
consolidation/canvassing capabilities? |
Yes. The PCOS was able to transmit to
the CCS during the end-to-end demonstration using GLOBE prepaid Internet kit. |
|
23 |
Does the system generate a backup copy of the generated
reports, in a removable data storage device? |
Yes. The PCOS saves a backup copy of
the ERs, ballot images, statistical report and audit log into a Compact Flash
(CF) Card. |
|
24 |
Does the system have alternative power sources, which will
enable it to fully operate for at least 12 hours? |
Yes. A 12 bolt 18AH battery lead acid
was used in this test. The initial test had to be repeated due to a short
circuit, after seven (7) hours from start-up without ballot scanning. This
was explained by TIM-Smartmatic to be caused by non-compatible wiring of the
battery to the PCOS. A smaller wire than what is required was inadvertently
used, likening the situation to incorrect wiring of a car battery. Two (2)
COMELEC electricians were called to confirm TIM-Smartmatic’s explanation. The
PCOS machine was connected to regular power and started successfully. The
following day, the “re-test” was completed in 12 hours and 40 minutes xxx 984
ballots were fed into the machine. The ER, as generated by the PCOS was
compared with predetermined result, showed 100% accuracy. |
|
25 |
Is the system capable of generating and printing reports? |
Yes. The PCOS prints reports via its built-in printer which includes: 1. Initialization Report; 2. Election Returns (ER); 3. PCOS Statistical
Report; 4. Audit Log. |
|
26 |
Did the bidder successfully demonstrate |
Yes. An end-to-end demonstration of all proposed systems was
presented covering: importing of election data into the EMS; creation of
election configuration data for the PCOS and the CCS using EMS; creation of
ballot faces using EMS; configuring the PCOS and the CCS using the
EMS-generated election configuration file; initialization, operation,
generation of reports and backup using the PCOS; electronic transmission of
results to the: [1] from the PCOS to city/municipal CCS and the central
server. [2] from the city/municipal CCS to the provincial CCS. [3] from the
provincial CCS to the national CCS; receipt and canvass of transmitted
results: [1] by the city/municipal CCS from the PCOS. [2] by the provincial CCS
from the city/municipal CCS. [3] by the national CCS from the provincial CCS;
receipt of the transmittal results by the central server from the PCOS. |
Given
the foregoing and absent empirical evidence to the contrary, the Court, presuming
regularity in the performance of regular duties, takes the
demo-testing thus conducted by SBAC-TWG as a reflection of the capability of
the PCOS machines, although the tests, as Comelec admits,[80]
were done literally in the Palacio del Governador building, where a room
therein simulated a town, the adjoining room a city, etc. Perusing the RFP,
however, the real worth of the PCOS system and the machines will of course come
after they shall have been subjected to the gamut of acceptance tests expressly
specified in the RFP, namely, the lab test, field test, mock election test,
transmission test and, lastly, the final test and sealing procedure of all PCOS
and CCS units using the actual Election Day machine configuration.[81]
Apropos the counting-accuracy feature of the
PCOS machines, petitioners no less impliedly admit that the web page they
appended to their petition, showing a 2% to 10% failing rate, is no longer
current.[82] And if they bothered to
examine the current website of Smartmatic specifically dealing with its SAES
1800, the PCOS system it offered, they would have readily seen that the
advertised accuracy rating is over “99.99999%.”[83]
Moreover, a careful scrutiny of the old webpage of Smarmatic reveals that the 2%
to 10% failure rate applied to “optical scanners” and not to SAES. Yet the same
page discloses that the SAES has “100%” accuracy. Clearly, the alleged 2% to
10% failing rate is now irrelevant and the Court need not belabor this and the
equally irrelevant estoppel principle petitioners impose on us.
Intervenor
Cuadra’s concern relates to the auditability of the election results. In this
regard, it may suffice to point out that PCOS, being a paper-based technology,
affords audit since the voter would be able, if need be, to verify if the
machine had scanned, recorded and counted his vote properly. Moreover,
it should also be noted that the PCOS machine contains an LCD screen, one that
can be programmed or configured to display to the voter his votes as read by
the machine. [84]
No Abdication of Comelec’s Mandate and
Responsibilty
As a
final main point, petitioners would have the Comelec-Smartmatic-TIM Corporation
automation contract nullified since, in violation of the Constitution, it
constitutes a wholesale abdication of the poll body’s constitutional mandate
for election law enforcement. On top of this perceived aberration, the
mechanism of the PCOS machines would infringe the constitutional right of the
people to the secrecy of the ballot which, according to the petitioners, is
provided in Sec. 2, Art. V of the Constitution.[85]
The
above contention is not well taken.
The first function of the Comelec under the
Constitution[86]––and
the Omnibus Election Code for that matter––relates to the enforcement and
administration of all laws and regulations relating to the conduct of elections
to public office to ensure a free, orderly and honest electoral exercise. And
how did petitioners come to their conclusion about their abdication theory? By
acceding to Art. 3.3 of the automation contract, Comelec relinquished, so
petitioners claim, supervision and control of the system to be used for the
automated elections. To a more specific point, the loss of control, as may be
deduced from the ensuing exchanges, arose from the fact that Comelec would not
be holding possession of what in IT jargon are the public and private keys
pair.
CHIEF JUSTICE: Well, more specifically are you saying that the main
course of this lost of control is the fact that SMARTMATIC holds the public and
private keys to the sanctity of this system?
ATTY. ROQUE: Yes, Your Honor, as well as the fact that they control the
program embedded in the key cost that will read their votes by which the
electorate may verify that their votes were counted.
CHIEF JUSTICE: You are saying that SMARTMATIC and not its partner TIM who
hold these public and private keys?
ATTY. ROQUE: Yes, Your Honor.
The Court is not convinced. There is
to us nothing in Art 3.3 of the automation contract, even if read separately
from other stipulations and the provisions of the bid documents and the
Constitution itself, to support the simplistic conclusion of abdication of
control pressed on the Court. Insofar as pertinent, Art 3.3 reads:
3.3 The PROVIDER shall be liable for all its
obligations under this Project and the performance of portions thereof by other
persons or entities not parties to this Contract shall not relieve the PROVIDER
of said obligations and concomitant liabilities.
SMARTMATIC, as
the joint venture partner with the greater track record in automated elections,
shall be in charge of the technical aspects of the counting and canvassing
software and hardware, including transmission configuration and system
integration. SMARTMATIC shall also be primarily responsible for preventing and
troubleshooting technical problems that may arise during the elections. (Emphasis
added.)
The proviso designating Smartmatic as the
joint venture partner in charge of the technical aspect of the counting and
canvassing wares does not to us translate, without more, to ceding control of
the electoral process to Smartmatic.
It bears to stress that the aforesaid designation of Smartmatic was not
plucked from thin air, as it was in fact an eligibility requirement imposed,
should the bidder be a joint venture. Part 5, par. 5.4 (e) of the Instruction to Bidders on the subject Eligible Bidders, whence the second paragraph of aforequoted Art. 3.3 came from, reads:
5.4 A JV of two or more firms as partners shall comply with the
following requirements.
x x x x
(e) The JV member with
a greater track record in automated elections, shall be in-charge of the
technical aspects of the counting and canvassing software and hardware,
including transmission configuration and system integration
And
lest it be overlooked, the RFP, which forms an integral part of the automation
contract,[87] has put all prospective
bidders on notice of Comelec’s intent to automate and to accept bids that would
meet several needs, among which is “a complete solutions provider… which can
provide… effective overall nationwide project management service… under COMELEC supervision and control,
to ensure effective and successful implementation of the [automation] Project.”[88]
Complementing this RFP advisory as to control of the election process is Art.
6.7 of the automation contract, providing:
6.7 Subject to the provisions of the General Instructions to be issued
by the Commission En Banc, the entire
processes of voting, counting,
transmission, consolidation and canvassing of votes shall be conducted by
COMELEC’s personnel and officials, and their performance, completion and
final results according to specifications and within the specified periods
shall be the shared responsibility of COMELEC and the PROVIDER. (Emphasis added.)
But not one to let an opportunity to score points pass by,
petitioners rhetorically ask: “Where does Public Respondent Comelec intend to
get this large number of professionals, many of whom are already gainfully
employed abroad?”[89]
The Comelec, citing Sec. 3[90]
and Sec. 5 of RA 8436,[91]
as amended, aptly answered this poser in the following wise:
x x x [P]ublic
respondent COMELEC, in the implementation of the automated project, will forge
partnerships with various entities in different fields to bring about the
success of the 2010 automated elections.
Public respondent COMELEC will partner with
Smartmatic TIM Corporation for the training and hiring of the IT personnel as
well as for the massive voter-education campaign. There is in fact a budget
allocation x x x for these undertakings. x x x
As
regards the requirement of RA 9369 that IT-capable personnel shall be deputized
as a member of the BEI and that another IT-capable person shall assist the BOC,
public respondent COMELEC shall partner with DOST and other agencies and
instrumentalities of the government.
In not so many words during the oral arguments
and in their respective Memoranda, public and private respondents categorically
rejected outright allegations of abdication by the Comelec of its
constitutional duty. The petitioners, to stress, are strangers to the
automation contract. Not one
participated in the bidding conference or the bidding proper or even perhaps
examined the bidding documents and, therefore, none really knows the real
intention of the parties. As case law
tells us, the court has to ferret out the real intent of the parties. What is fairly clear in this case, however,
is that petitioners who are not even privy to the bidding process foist upon
the Court their own view on the stipulations of the automation contract and
present to the Court what they think are the parties’ true intention. It is a study of outsiders appearing to know
more than the parties do, but actually speculating what the parties
intended. The following is
self-explanatory:
CHIEF JUSTICE: Why did you say that it did not, did you talk with the Chairman and Commissioners of COMELEC that they failed to perform this duty, they did not exercise this power of control?
ATTY. ROQUE : Your Honor, I based it on the fact that it was the COMELEC in fact that entered into this contract ….
CHIEF JUSTICE : Yes, but my question is – did you confront the COMELEC officials that they forfeited their power of control in over our election process?
ATTY. ROQUE : We did not confront, your
Honor. We impugned
their acts, Your Honor.[92]
Just
as they do on the issue of control over the electoral process, petitioners also
anchor on speculative reasoning their claim that Smartmatic has possession and
control over the public and private keys pair that will operate the PCOS
machines. Consider: Petitioners’ counsel
was at the start cocksure about Smartmatic’s control of these keys and, with its
control, of the electoral process.[93]
Several
questions later, his answers had a qualifying tone:
JUSTICE NACHURA: And can COMELEC under the
contract not demand that it have access, that it be given access to and in fact
generate its own keys independently with SMARTMATIC so that it would be COMELEC
and not SMARTMATIC that would have full control of the technology insofar as
the keys are concerned xxx?
ATTY. ROQUE: I do not know if COMELEC will be
in a position to generate these keys, xxx. [94]
And
subsequently, the speculative nature of petitioners’ position as to who would
have possession and control of the keys became apparent.
CHIEF JUSTICE: Yes, but did you check
with the COMELEC who will be holding these two keys x x x did you check with
COMELEC whether this system is correct?
ATTY.ROQUE: We have not had occasion to do
so, x x x Your Honor.
x x x x
CHIEF JUSTICE: Why do you make that poor
conclusion against the COMELEC x x x May not the COMELEC hire the services of
experts in order for the institution to be able to discharge its constitutional
functions?
ATTY. ROQUE: That is true, but x x x there is
too much reliance on individuals who do not have the same kind of
accountability as public officers x x x
CHIEF JUSTICE: Are you saying that the
COMELEC did not consult with available I.T. experts in the country before it
made the bidding rules before it conducted the bidding and make the other
policy judgments?
ATTY. ROQUE: Your Honor, what I am sure is
that they did not confer with the I.T. Foundation x x x.
CHIEF JUSTICE: But is that foundation the
only expert, does it have a monopoly of knowledge?[95]
The Court,
to be sure, recognizes the importance of the vote-security issue revolving
around the issuance of the public and private keys pair to the Board of
Election Inspectors, including the digital signatures. The NCC comment on the
matter deserves mention, appearing to hew as it does to what appear on the
records. The NCC wrote:
The RFP/TOR used in the recent bidding for
the AES to be used in the 2010 elections specifically mandated the use of
public key cryptography. However, it was left to the discretion of the bidder
to propose an acceptable manner of utilization for approval/acceptance of the
Comelec. Nowhere in the RFP/TOR was it indicated that COMELEC would delegate to
the winning bidder the full discretion, supervision and control over the manner
of PKI [Public Key Infrastructure] utilization.
With the
view we take of the automation contract, the role of Smartmatic TIM Corporation
is basically to supply the goods necessary for the automation project, such as
but not limited to the PCOS machines, PCs, electronic transmission devices and
related equipment, both hardware and software, and the technical services
pertaining to their operation. As lessees
of the goods and the back-up equipment, the corporation and its operators would
provide assistance with respect to the machines to be used by the Comelec
which, at the end of the day, will be conducting the election thru its
personnel and whoever it deputizes.
And if only
to emphasize a point, Comelec’s contract is with Smartmatic TIM Corporation of
which Smartmatic is a 40% minority owner, per the JVA of TIM and Smartmatic and
the Articles of Incorporation of Smartmatic TIM Corporation. Accordingly, any
decision on the part or on behalf of Smartmatic will not be binding on Comelec.
As a necessary corollary, the board room voting arrangement that Smartmatic and
TIM may have agreed upon as joint venture partners, inclusive of the veto vote
that one may have power over the other, should really be the least concern of
the Comelec.
Parenthetically,
the contention that the PCOS would infringe on the secrecy and sanctity of the
ballot because, as petitioners would put it, the voter would be confronted with
a “three feet” long ballot,[96]
does not commend itself for concurrence. Surely, the Comelec can put up such
infrastructure as to insure that the voter can write his preference in relative
privacy. And as demonstrated during the oral arguments, the voter himself will
personally feed the ballot into the machine. A voter, if so minded to preserve
the secrecy of his ballot, will always devise a way to do so. By the same
token, one with least regard for secrecy will likewise have a way to make his
vote known.
During the
oral arguments, the notion of a possible violation of the Anti-Dummy Law
cropped up, given the RFP requirement of a joint venture bidder to be at least
be 60% Filipino. On the other hand, the winning bidder, TIM-Smartmatic joint
venture, has Smartmatic, a foreign corporation, owning 40% of the equity in,
first, the joint venture partnership, and then in Smartmatic TIM Corporation.
The Anti-Dummy Law[97] pertinently states:
Section 1. Penalty. In all cases in which any constitutional or legal provision requires Philippine or any other specific citizenship as a requisite for the exercise or enjoyment of a right, franchise or privilege, any citizen of the Philippines or of any other specific country who allows his name or citizenship to be used for the purpose of evading such provision, and any alien or foreigner profiting thereby, shall be punished by imprisonment xxx and by a fine xxx.
SECTION 2. Simulation of minimum capital stock – In all cases in which a constitutional or legal provision requires that a corporation or association may exercise or enjoy a right, franchise or privilege, not less than a certain per centum of its capital must be owned by citizens of the Philippines or any other specific country, it shall be unlawful to falsely simulate the existence of such minimum stock or capital as owned by such citizen for the purpose of evading such provision. xxx
SECTION 2-A. Unlawful use, Exploitation or Enjoyment. Any person, corporation, or association which, having in its name or under its control, a right, franchise, privilege, property or business, the exercise or enjoyment of which is expressly reserved by the Constitution or the laws to citizens of the Philippines or of any other specific country, or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, permits or allows the use, exploitation or enjoyment thereof by a person, corporation, or association not possessing the requisites prescribed by the Constitution or the laws of the Philippines; or leases, or in any other way, transfers or conveys said right, franchise, privilege, property or business to a person, corporation or association not otherwise qualified under the Constitution xxx shall be punished by imprisonment xxx (Emphasis added.)
The Anti-Dummy Law has been enacted
to limit the enjoyment of certain economic activities to Filipino citizens or
corporations. For liability for violation of the law to attach, it must be
established that there is a law limiting or reserving the enjoyment or exercise
of a right, franchise, privilege, or business to citizens of the
SEC 12. Procurement of Equipment and Materials.– To achieve the purpose of this Act, the Commission is authorized to procure, xxx, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities, and other services, from local or foreign sources xxx. (Emphasis added.)
Petitioners cite Executive Order No. (EO)
584,[98] Series
of 2006, purportedly limiting “contracts for the supply of materials, goods and
commodities to government-owned or controlled corporation, company, agency or
municipal corporation” to corporations that are 60% Filipino. We do not quite
see the governing relevance of EO 584. For let alone the fact that RA 9369 is,
in relation to EO 584, a subsequent enactment and, therefore, enjoys primacy
over the executive issuance, the Comelec does fall under the category of a
government-owned and controlled corporation, an agency or a municipal
corporation contemplated in the executive order.
A view has
been advanced regarding the susceptibility of the AES to hacking, just like the
voting machines used in certain precincts in
Additionally,
with the AES, the possibility of system hacking is very slim. The PCOS machines
are only online when they transmit the results, which would only take around one
to two minutes. In order to hack the system during this tiny span of
vulnerability, a super computer would be required. Noteworthy also is the fact
that the memory card to be used during the elections is encrypted and read-only––meaning no illicit program can be executed or introduced into the memory
card.
Therefore, even though the AES has its flaws, Comelec and Smartmatic have seen to it that the system is well-protected with sufficient security measures in order to ensure honest elections.
And as
indicated earlier, the joint venture provider has formulated and put in place a
continuity and back-up plans that would address the understandable apprehension
of a failure of elections in case the machines falter during the actual
election. This over-all fall-back strategy includes the provisions for 2,000
spare PCOS machines on top of the 80,000 units assigned to an equal number
precincts throughout the country. The
continuity and back-up plans seek to address the following eventualities: (1)
The PCOS fails to scan ballots; (2) The PCOS scans the ballots, but
fails to print election returns (ERs); and/or (3) The PCOS prints but
fails to transmit the ERs. In the event item #1 occurs, a spare PCOS, if
available, will be brought in or, if not available, the PCOS of another
precinct (PCOS 2 for clarity), after observing certain defined requirements,[101]
shall be used. Should all the PCOS machines in the entire municipality/city
fail, manual counting of the paper ballots and the manual accomplishment of ERs shall be resorted to in
accordance with Comelec promulgated rules on appreciation of automated ballots.[102]
In the event item #2 occurs where the PCOS machines fail to print ERs, the use
of spare PCOS and the transfer of PCOS-2 shall be effected. Manual counting of ERs
shall be resorted to also if all PCOS fails in the entire municipality. And
should eventuality #3 transpire, the following back-up options, among others,
may be availed of: bringing PCOS-1 to
the nearest precinct or polling center which has a functioning transmission
facility; inserting transmission cable of functioning transmission line to
PCOS-1 and transmitting stored data from PCOS-1 using functioning transmission
facility.
The disruption of the election process due to
machine breakdown or malfunction may be limited to a precinct only or could
affect an entire municipal/city. The worst case scenario of course would be the
wholesale breakdown of the 82,000 PCOS machines. Nonetheless, even in this most
extreme case, failure of all the machines would not necessarily translate into
failure of elections. Manual count tabulation and transmission, as earlier
stated, can be done, PCOS being a paper-ballot technology. If the machine fails
for whatever reason, the paper ballots would still be there for the hand counting
of the votes, manual tabulation and transmission of the ERs. Failure of
elections consequent to voting machines failure would, in fine, be a very
remote possibility.
A final
consideration.
The first step is always difficult.
Hardly anything works, let alone ends up perfectly the first time around. As
has often been said, if one looks hard enough, he will in all likelihood find a
glitch in any new system. It is no wonder some IT specialists and practitioners
have considered the PCOS as unsafe, not the most appropriate technology for
Philippine elections, and “easily hackable,” even. And the worst fear expressed
is that disaster is just waiting to happen, that PCOS would not work on
election day.
Congress has chosen the May 2010
elections to be the maiden run for full automation. And judging from what the
Court has heard and read in the course of these proceedings, the choice of PCOS
by Comelec was not a spur-of-moment affair, but the product of
honest-to-goodness studies, consultations with CAC, and lessons learned from
the ARMM 2008 automated elections. With
the backing of Congress by way of budgetary support, the poll body has taken
this historic, if not ambitious, first step. It started with the preparation of
the RFP/TOR, with a list of voluminous annexes embodying in specific detail the
bidding rules and expectations from the bidders. And after a hotly contested
and, by most accounts, a highly transparent public bidding exercise, the joint
venture of a Filipino and foreign corporation won and, after its machine
hurdled the end-to-end demonstration test, was eventually awarded the contract
to undertake the automation project. Not one of the losing or disqualified
bidders questioned, at least not before the courts, the bona fides of the bidding procedures and the outcome of the bidding
itself.
Assayed against the provisions of the Constitution, the enabling automation law, RA 8436, as amended by RA 9369, the RFP and even the Anti-Dummy Law, which petitioners invoked as an afterthought, the Court finds the project award to have complied with legal prescriptions, and the terms and conditions of the corresponding automation contract in question to be valid. No grave abuse of discretion, therefore, can be laid on the doorsteps of respondent Comelec. And surely, the winning joint venture should not be faulted for having a foreign company as partner.
The Comelec
is an independent constitutional body with a distinct and pivotal role in our
scheme of government. In the discharge of its awesome functions as overseer of
fair elections, administrator and lead implementor of laws relative to the
conduct of elections, it should not be stymied with restrictions that would
perhaps be justified in the case of an organization of lesser
responsibility.[103]
It should be afforded ample elbow room and enough wherewithal in devising means
and initiatives that would enable it to accomplish the great objective for
which it was created––to promote free, orderly, honest and peaceful elections.
This is as it should be for, too often, Comelec has to make decisions under
difficult conditions to address unforeseen events to preserve the integrity of
the election and in the process the voice of the people. Thus, in the past, the Court has steered away
from interfering with the Comelec’s exercise of its power which, by law and by
the nature of its office properly pertain to it. Absent, therefore, a clear
showing of grave abuse of discretion on Comelec’s part, as here, the Court
should refrain from utilizing the corrective hand of certiorari to
review, let alone nullify, the acts of that body. This gem, while not on all fours with, is
lifted from, the Court’s holding in an old but oft-cited case:
x x x We may not agree fully with [the Comelec’s] choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere. Politics is a practical matter, and political questions must be dealt with realistically––not from the standpoint of pure theory [or speculation]. x x x
x x x x
There are no ready-made formulas for solving public problems. Time and experience are necessary to evolve patterns that will serve the ends of good government. In the matter of the administration of the laws relative to the conduct of elections, x x x we must not by any excessive zeal take away from the [Comelec] the initiative which by constitutional and legal mandates properly belongs to it. Due regard to the independent character of the Commission x x x requires that the power of this court to review the acts of that body should, as a general proposition, be used sparingly, but firmly in appropriate cases.[104] x x x
The Court,
however, will not indulge in the presumption that nothing would go wrong, that
a successful automation election unmarred by fraud, violence, and like
irregularities would be the order of the moment on May 10, 2010. Neither will it guarantee, as it cannot
guarantee, the effectiveness of the voting machines and the integrity of the
counting and consolidation software embedded in them. That task belongs at the
first instance to Comelec, as part of its mandate to ensure clean and peaceful
elections. This independent constitutional commission, it is true, possesses
extraordinary powers and enjoys a considerable latitude in the discharge of its
functions. The road, however, towards successful 2010 automation elections
would certainly be rough and bumpy. The Comelec is laboring under very tight
timelines. It would accordingly need the help of all advocates of orderly and
honest elections, of all men and women of goodwill, to smoothen the way and
assist Comelec personnel address the fears expressed about the integrity of the
system. Like anyone else, the Court would like and wish automated elections to
succeed, credibly.
WHEREFORE, the instant
petition is hereby DENIED.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
WE CONCUR:
REYNATO S.
PUNO
Chief Justice
(On official leave)
LEONARDO A. QUISUMBING
CONSUELO YNARES-SANTIAGO
Associate Justice Associate Justice
ANTONIO T. CARPIO RENATO C. CORONA
Associate Justice Associate
Justice
CONCHITA CARPIO MORALES
MINITA V. CHICO-NAZARIO
Associate Justice Associate Justice
ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO
Associate Justice
Associate Justice
ARTURO D. BRION DIOSDADO M. PERALTA
Associate Justice Associate Justice
LUCAS P. BERSAMIN MARIANO C.
Associate Justice
Associate Justice
ROBERTO A. ABAD
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII
of the Constitution, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court.
REYNATO
S. PUNO
Chief Justice
[1] Both corporations are also referred to in the petition and other pleadings as Total Information Management, Inc. and Smartmatic International, Inc.
[4] An Act Amending [RA] 8436, entitled “An Act Authorizing the [Comelec] to Use Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National or Local Electoral Exercises, to Encourage Transparency, Credibility, Fairness and Accuracy of Elections, Amending for the Purpose Batas Pambansa Blg. 881, as Amended, [RA] 7166 and Other Related Election Laws, Providing Funds Therefor and For Other Purposes.”
[5] Composed of, among others, the Chairperson of the Commission on Information and Communications Technology (CICT), one member each from the Dept. of Education and the Dept. of Science and Technology and three members representing ICT professional organizations.
[9]
Composed of the cities and municipalities in the provinces of Isabela (except
[10] DRE is a technology wherein a vote is cast directly on a machine by the use of a touch screen, touchpad, keypad or other device and the machine records the individual votes and calculates the total votes electronically.
[11] CCOS means a technology wherein an optical ballot scanner, into which optical scan paper ballots marked by hand by the voter are inserted to be counted, is located in every voting center.
[13] Senate Resolutions 96 and 567, s. of 2008, authored by Senators Gordon and Villar, respectively; see Annexes 8 and 9 of private respondents’ Memorandum.
[15] Sec. 2 of RA 9369 defines “paper-based election system” as a type of automated election system that uses paper ballots; records and counts votes; and tabulates, consolidates/canvasses and transmits electronically the results of the vote counts.
[16] The Glossary of Terms of the RFP defines PCOS as referring to a technology wherein an optical ballot scanner, into which optical scan paper ballots marked by hand by the voter are inserted to be counted, is located in every precinct.
[17] Sec. 2 (10) of RA 8436, as amended, defines “continuity plan” as a “list of contingency measures and the policies for activation of such, that are put in place to ensure continuous operation of the AES.”
[18] The formulation of a continuity plan is a requirement under Sec. 9 of RA 8436, the activation of which shall be undertaken in the presence of political parties’ representatives and the citizens arm of the Comelec.
[20] Contains what the RFP refers to as Class “A” documents, referring to legal, technical and financial documents; and Class “B” documents, among which is a valid JVA, in case of joint venture.
[22] Rollo, p. 399. Per Certification of the Director of the Comelec’s Education & Information Department, Annex “4” of public respondents’ Comment.
[34] Denominated as the Contract for the Provision of an Automated Election System for the May 10, 2010 Synchronized National and Local Elections.
[37]
[39] Tatad v. Secretary of the Department of Energy, G.R. Nos. 124360 & 127867, November 5, 1997, 281 SCRA 330, 349; De Guia v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.
[40] G.R. No. 130716, December 9, 1998, 299 SCRA 744, cited in Chavez v. NHA, infra.
[43] Sec. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot x x x.
[44] TSN of the oral arguments, p. 76.
[45] Chuidian v. Sandiganbayan, G.R. Nos. 156383 & 160723, July 31, 2006, 497 SCRA 327; citing Ginete v. CA, G.R. No. 127596, September 24, 1998, 296 SCRA 38.
[47] Marabur v. Comelec, G.R. No. 169513, February 26, 2007, 516 SCRA 696.
[48] Chavez v. National Housing Authority, G.R. No. 164527, August 15, 2007, 530 SCRA 235.
[50] TSN, p. 38.
[53] The 5th and 6th preambulatory clauses of the JVA respectively provide:
WHEREAS, Tim and Smartmatic have agreed to jointly and severally submit, as an incorporated joint venture, a bid to the COMELEC for the automation Project pursuant to the rules and terms set forth in the Request for Proposal;
WHEREAS, in the event that the bid submitted by TIM and SMARTMATIC is declared to be the winning bid, TIM and SMARTMATIC have agreed to cause the incorporation of a joint venture corporation (the “JVC”) which will enter into a contract with the COMELEC for the Automation Project.
[54] 2.1 In the event that COMELEC declares the bid tendered by TIM and SMARTMATIC to be the winning bid for the Automation Project, the parties hereto shall incorporate or cause to be incorporated, the JVC which shall be named “TIM SMARTMATIC CORPRATION” or any other acceptable name … which may be allowed by the SEC.
2.2. The JVC shall be the corporate vehicle through which the joint venture … shall be carried out xxxx. The JVC shall be the entity which shall enter into a contract with the COMELEC for the Automation Project of the 2010 National Elections.
2.3 The purpose of the JVC shall be to carry out and perform jointly, severally and solidarily the obligations of TIM and SMARTMATIC arising from being declared the winning bidder in the public bidding for the Automation Project which obligations are spelled out in the [RFP] xxx
2.4 The authorized capital stock of the JVC is initially fixed herein at xxx PHP1,300,000,000.00 divided into Pesos: One Billion and Three Hundred Million shares xxx; Provided that the authorized capital stock of the JVC may be increased when so warranted xxx. 2.5 The capital contributions of the parties hereto to the JVC shall be as follows: a. TIM by itself or thorough its Philippine subsidiary – sixty percent (60%) of the shares to be issued by the JVC; b. SMATMATIC, by itself or through its Philippine subsidiary – forty percent (40%) of the shares to be issued by the JVC. xxx
[55] 4.1 For as long as TIM, either by itself or through its subsidiary, owns and holds 60% of the outstanding capital stock of the JVC and entitled to vote, TIM shall be entitled to nominate and elect 60% of the Board of Directors of the JVC. For as long as SMARTMATIC, either by itself or through its Philippine subsidiary, owns and holds 40% of the outstanding capital stock of the JVC and entitled to vote, SMARTMATIC shall be entitled to nominate and elect 40% of the Board of Directors of the JVC
[56] 7.1 The JVC will distribute its profits to the Shareholders to the extent determined by the Board of Directors xxx after taking into account the financial requirements of the JVC with respect to the working capital. xxx
[57] 3.1 For purposes of the Automation Project, TIM may contribute to the JVC and shall be responsible for the following: a. the value-added services pertaining or related to canvassing units, systems integration, transmission and such other services as required by the Automation Project and as indicated in the [RFP]; b. services pertaining or related to logistics, deployment and manpower; c. hardware, software, ballot paper, consumables and such other services as may be requested by SMARTMATIC; and d. local support staff as may be required under the circumstances;
3.2 For purposes of the Automation Project, SMARTMATIC shall contribute to the JVC and shall be responsible for the following: a. the development, manufacture and/or supply of EVMs, other machines and equipment, software, technology and systems; b. overall project management as required by the Automation Project and as indicated in the [RFP] and c. any other activity not expressly written in this Agreement or assigned to TIM;
x x x x
3.4 In the event the [financial and capital contribution] sources mentioned in the preceding Article 3,3 (b) or (c) are insufficient to meet the financial requirements of the JVC, the parties shall bear the responsibility of supporting or securing such financial requirements in proportion to their respective shareholdings xxx.
[61] Sec. 7.1 of the ITB reads: “The bidder shall specify in its Bid all portions of the Goods and Services that will be subcontracted, if any, including the entities to whom each portion will be subcontracted to xxx. Subcontracting of any portion shall not relieve the Bidder from any liability or obligation that may arise from its performance.”
[63] Approved on January 23, 2007, RA 9369 provides in its Sec. 47 that it shall take effect 15 days after its publication in a newspaper of general circulation.
[65] Annex “A” [Glossary of Terms] of the RFP.
[67] Memorandum, Report/Recommendation on the 2010 Automation Election Project Procurement, Annex “9,” Comment on Petition of Public Respondents.
[68] Entitled “An Act Appropriating the Sum of Eleven Billion Three Hundred One Million Seven Hundred Ninety Thousand Pesos (P11,301,790,000.00) as Supplemental Budget for an [AES] and for Other Purposes.”
[70] On page 3 of its Comment, NCC, thru its Dir. Gen. Angelo Timoteo M. Diaz de Rivera, states: “We believe that the successful deployment of the paper-based election system in 5 of the 6 provinces of ARMM and the concurrent deployment of the direct-recording-electronic election system in Maguindanao province, is substantial compliance of the spirit of this law, given the underlying circumstances.”
[71] Mr. Amado A. Malacaman, signing as secretary of the ITFP, states: “The ARMM election in August 2008 was not a valid pilot run for two reasons: (1) It did not cover two highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao, and (2) PCOS was not used in that electoral exercise.”
[72] Atty. Roque said: “The PCOS stage is similar to OMR because they also have to shade the oval for the candidate that they want to vote. The difference is that in the OMR they collate all the ballots xxx where in PCOS you don’t put it in a ballot, you feed it into the machines.”
[81] The final test shall be conducted at least three days before election after which the PCOS and CCS shall be sealed for election day use (Part V, item no. 13, RFP).
[86] Sec. 2, Art. IX-C; SECTION 2. The [Comelec] shall exercise the following powers and functions: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall; xxx (4) Deputize xxx law enforcement agencies xxx for the exclusive purpose of ensuring free, orderly, honest peaceful and credible elections.
[87] 21.1. “Contract documents” refers to the following documents and they are hereby incorporated and made an integral part of this Contract: x x x Annex “O” Request for Proposal/Terms of Reference.
[90] SECTION 3. Section 3 of [RA] 8436 is hereby amended to read as follows: “SEC. 3 Board of Election of Inspectors. – Where AES shall be adopted, at least one member of the Board of Election Inspectors shall be an [IT]-capable person, who is trained or certified by the DOST to use such AES. Such certification shall be issued by the DOST, free of charge.”
[91] SECTION 5. Section 5 of [RA] 8436 is hereby amended to read as follows: “SEC. 4 Information Technology Support for the Board of Canvassers.- To implement the AES, each board of canvasser shall be assisted by an [IT]-capable person authorized to operate the equipment adopted for the elections. The Commission shall deputize [IT] personnel from among agencies and instrumentalities of the government, including government-owned and controlled corporations. x x x”
[100] Sec. 10 of RA 8436, as amended, states that “once an AES technology is selected for implementation, the Commission shall promptly make the source code available and open to any interested party or groups which may conduct their own review thereof.”