Only a temporary restraining order from the Supreme Court (SC) can stop Friday’s scheduled signing of the poll automation contract between the Commission on Elections (Comelec) and winning bidder Smartmatic Corporation/ Total Information Management, said a poll official.

Comelec Commissioner Rene Sarmiento said unless there’s a TRO issued by the SC the signing will push through Friday.

The Supreme Court (SC) was asked yesterday to stop the Comelec from signing the P7.2-billion poll automation contract with Smartmatic and TIM for alleged violations of the election automation law.

In a petition filed by a group of lawyers and private individuals led by University of the Philippines law
professor Harry Roque, the SC was asked to issue a temporary restraining order (TRO) that would stop the scheduled signing today of the contract.

As this developed, Smartmatic and TIM have finalized their incorporation documents as a joint venture company, with P1.13 paid up capital, as approved by the Securities and Exchange Commission (SEC) Thursday terday.

Named respondents in the SC petition were the Comelec, Smartmatic and TIM, special bids and awards committee (SBAC) chairman Ferdinand Rafanan, and Budget Secretary Rolando Andaya.

“That’s their constitutional right to file a complaint. I just hope the SC will resolve it as soon as possible so that there won’t be any obstacle on the part of the Comelec to fully implement the poll automation,” said Sarmiento.

But the poll official is confident the signing will push through.

“The whole process was very transparent, done publicly…so I don’t see there will be any problem,” Sarmiento said.

Today’s contract signing would make official the designation of Smartmatic/ TIM as the automation partner of the Comelec for the May, 2010 National and Local Elections.

The signing was delayed as Smartmatic and TIM waited for the SEC to approve the incorporation papers of their joint venture company.

The petitioners said the Comelec failed to conduct any pilot testing of the precinct count optical scan (PCOS) machines by Smartmatic-TIM which is required under Republic Act No. 9369, the election automation law.

They said that Section 5 of RA 9369 provides that for the regular and national election, the automated election system should be used in at least two highly urbanized cities and two provinces each in Luzon, the Visayas, and Mindanao which was not done by the Comelec.

It also said that the Comelec failed to adhere to Section 12 of RA 9369 which provides that with respect to the May 10, 2010 election and succeeding electoral exercises, the machines procured for poll automation must have demonstrated capability and have been successfully used in a prior electoral exercises here or board.

According to the petition that was also signed by lawyers Joel Butuyan, Romel Bagars, Allan Jones Lardizabal and Gilbert Andres, and taxpayers Immaculada Garcia, Erlinda Mercado, Francisco Alcuaz, Azucena Maceda and Alvin Peters, Smartmatic and TIM submitted to the Comelec’s SBAC the certificate of acceptance addressed to a third party, Dominion Voting Systems -- an election provider in Canada – to the effect that the said election machines have been successfully used in a prior electoral exercise.

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

At the same time, the petition told the SC that the PCOS machines offered to the Comelec failed to comply with the minimum system capabilities as described under Section 6 of RA 9369 such as those pertaining to the accuracy in recording and reading of votes as well as in the tabulation, consolidation, canvassing, electronic transmission, and storage results.