The Supreme Court Thursday officially released its decision allowing the Commission on Elections (Comelec) to proceed with the P7.2 billion election automation project starting with the May 2010 national and local polls.

In a full court decision handed down last Tuesday and written by Justice Presbitero J. Velasco Jr., the SC denied the petition filed by the Concerned Citizens Movement to nullify the joint venture agreement on election automation between the Comelec and Total Information Management Corp./Smartmatic International
Corp.

The SC ruled that the Comelec did not commit grave abuse of discretion in the award of the contract to TIM/Smartmatic.

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

Ten other justices concurred. They were Chief Justice Reynato S. Puno and Justices Consuelo Ynares-Santiago, Renato C. Corona, Minita V. Chico-Nazario, Antonio Eduardo B. Nachura, Teresita J. Leonardo-De Castro, Diosdado M. Peralta, Lucas P. Bersamin, Mariano C. Del Castillo, and Roberto A. Abad. Chief Justice Puno and Justice Corona wrote separate opinions.

Justice Antonio T. Carpio dissented and wrote a separate opinion which was joined by Justice Conchita Carpio Morales. Justice Arturo D. Brion also wrote a dissenting opinion.

Senior Justice Leonardo A. Quisumbing was on official leave.

According to the SC, the pilot testing of the poll automation technology in an actual, scheduled electoral exercise, as alleged in the petition, was not a mandatory requirement for the choice of system in, or a prerequisite for, the full automation of the May 2010 elections.

It stressed that mandating a pilot testing would “doubtless undermine the purpose of Republic Act No. 9369, the Act Amending RA 8436 or the Election Modernization Act.”

What the law really exacts, the SC said, is that for the automation of the May 10, 2010 and subsequent elections, the Precinct Count Optical Scan (PCOS), or any AES to be procured must have demonstrated its capability or success in either a local or a foreign election.

At the same time, the SC said that any 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, in which Congress appropriated PhP11.301 billion to automate the 2010 elections, subject to compliance with the transparency and accuracy requirements in selecting the relevant technology of the machines.”

The SC said the Automated Election System (AES) was not to be confused with the PCOS procured by the Comelec for the 2010 polls. PCOS, it noted, is merely one of several automated voting, counting, or canvassing technologies coming within the term AES.

It stressed that the PCOS meets the minimum capabilities standards prescribed by RA 8436, as amended. Based on the records before it, it added that it was “fairly satisfied that the Comelec has adopted a rigid technical evaluation mechanism, a set of 26-item/check list criteria…to ensure compliance with the above minimum systems capabilities.”

There was no abdication of the Comelec’s mandate and responsibility as the SC noted a provision designating Smartmatic as the joint venture partner in charge of the technical aspect of the counting and canvassing wares does not translate to ceding control of the electoral process to Smartmatic.

Moreover, the Request for Proposal (RFP), also known as the Terms of Reference, itself puts all prospective bidders on notice of Comelec’s supervision and control to ensure effective and successful implementation of the automation project.

According to the SC, the AES limits the possibility of system hacking as it noted that 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, it said.

Also, the SC said that the disruption of the election process due to machine breakdown or malfunction may be limited to a precinct only. But even in the worst case scenario of breakdown of the 82,000 PCOS machines, such machine failure would not translate into failure of elections, the SC said.

In his separate concurring opinion, Chief Justice Puno said: “Absent any capricious and whimsical exercise judgment on the part of the Comelec, its determination of the appropriate election technology, as well as the procedure for its procurement, should be respected.”

Puno stressed that “the fear of automation failure should not overwhelm us” following the safeguards provided by the PCOS System procured by Comelec, which is a paper-based system.

Among these safeguards, Puno noted that it has a provision for system auditability and a voter-verified paper trail and in the event of problems arising from non-functioning PCOS machines, the official ballots cast in the precincts, which have previously been fed into the locked ballot box, could be used for a manual recount.”

He said that the “full automation will not completely cleanse the dirt in our electoral system. But it is a big forward step which can lead us to the gateway of real democracy where the vote of the people is sacred and supreme.”

For his part, Justice Corona stressed that the Congress has vested the Comelec with the authority to modernize the Philippine electoral system through the adoption of an AES.

“No worst-case scenarios painted by doomsayers, no speculative political catastrophe should be the basis of invalidating the Comelec’s official acts. Only when the exercise by the Comelec of its discretion is done with grave abuse will this Court nullify the challenged discretionary act. Otherwise, the institutional independence of the Comelec will be unduly restricted and eroded, and its constitutional and statutory prerogatives encroached upon. This Court should not allow that in any situation. This Court should not allow that in this case.”