Supreme Court Okays Poll Automation in 2010 Elections

The Supreme Court of the Philippines will promulgate Thursday, September 10, 2009, its decision regarding the petition by a UP law professor seeking to invalidate the contract signed between COMELEC and Smartmatic/TIM to automate the 2010 national and local elections.  This was the report gathered by abs-cbnNEWS/Newsbreak.  The news item reads in full, thus:

MANILA -- It's full steam ahead to automate next year’s elections.

Voting 11-3-1, the Supreme Court junked the petition filed by University of the Philippines law professor Harry Roque to declare as invalid the P7.2 billion automation contract between the Commission on Elections (Comelec) and winning consortium Smartmatic and Total Information Management (TIM), according to early reports reaching abs-cbnNEWS.com/Newsbreak.

The ruling, penned by Justice Presbitero Velasco, is expected to be promulgated this week. Justices Antonio Carpio, Conchita Carpio-Morales, and Arturo Brion dissented. Justice Leonardo Quisumbing, who is on leave, took no part.

The ruling paves the way for Comelec to go full throttle in the preparations and implementation of poll automation.

Earlier, fears were raised that the SC case, if further prolonged, could push back the poll body’s timetable, which could have dire consequences on the country’s first-ever nationwide computerized elections.

Roque had sought the junking of the automation contract, arguing that the automation law provides that the system should be first pilot-tested in selected areas.

Representing the Concerned Citizens Movement, Roque said the Comelec did not the follow this provision in the law.

Republic Act (RA) 9369, or the amended Automation Law, required that pilot-testing be held in highly-urbanized areas and two provinces each in Luzon, Visayas and Mindanao in the national and local elections that would be held shortly after the measure’s adoption.

The law was passed January 23, 2007.

The Comelec and the Office of the Solicitor-General argued that the law was referring to the May 2007 mid-term senatorial race. But since automation was not implemented at that time, this provision of the law has been deemed waived.

The Roque petition is just one of a series of dramatic incidents that have plagued poll automation.

The winning consortium almost broke up after bagging the contract due to “irreconcilable differences.”

Legal threats issued by Comelec prompted TIM, the Filipino partner in the consortium, to go back to the negotiating table.

The foreign partner itself, Smartmatic, is bugged by negative publicities and controversies.

Powers and Functions of COMELEC (Administrative Code of 1987)

POWERS and FUNCTIONS of the Commission on Elections

(As Provided by the Administrative Code of 1987)

In addition to the powers and functions conferred upon it by the Constitution, the Commission on Elections has the exclusive charge of the enforcement and administration of all laws relative to the conduct of elections, for the purpose of ensuring free, orderly, honest, peaceful and credible elections, as provided for by the Administrative Code of 1987.

The Code provides the following, to wit:

(1) Promulgate rules and regulations implementing the provisions of the Omnibus Election Code or other laws which the Commission is required to enforce and administer;

(2) Fix other reasonable periods for certain pre-election requirements in order that voters shall not be deprived of their right of suffrage and certain groups of rights granted them in the Omnibus Election Code;

Unless indicated in the Omnibus Election Code, the Commission is hereby authorized to fix the appropriate period for the various prohibited acts enumerated therein consistent with the requirements of free, orderly, honest, peaceful, and credible elections.

(3) Exercise direct and immediate supervision and control over national and local officials or employees, including members of any national or local law enforcement agency and instrumentality of the government required by law to perform duties relative to the conduct of elections, it may authorize CMT cadets, eighteen years of age and above to act as its deputies for the purpose of enforcing its orders; [see People vs. Basilla, 179 SCRA 87]

The Commission may relieve any officer or employee referred to in the preceding paragraph from the performance of his duties relating to electoral processes who violates the election law or fails to comply with its instructions, orders, decisions or rulings, and appoint his substitute.  Upon recommendation of the Commission, the corresponding proper authority shall suspend or remove from office any or all of such officers or employees who may, after due process, be found guilty of such violation or failure.

(4) During the period of the campaign and ending thirty days thereafter, when in any area of the country there are persons committing acts of terrorism to influence people to vote for or against any candidate or political party, the Commission shall have the power to authorize any member or members of the Armed Forces of the Philippines, the National Bureau of Investigation, the Integrated National Police or any similar agency or instrumentality of the government, except civilian home defense forces, to act as deputies for the purpose of insuring the holding of a free, orderly, honest, peaceful, and credible elections;

(5) Publish at least ten (10) days before an election in a newspaper of general circulation certified data on the number of official ballots and election returns and the names and address of the printers and the number printed by each;

(6) Refuse, motu proprio or upon a verified petition, to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the office which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate;

(7) Postpone, motu proprio or upon verified petition and after due notice and hearing whereby all interested parties are afforded equal opportunity to be heard, the election to a date which should be reasonably be close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause for such postponement or suspension of the election or failure to elect, when for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes the holding of a free, orderly, honest, peaceful, and credible election should become impossible in any political subdivision.

(8) Call for the holding or continuation of election not held in any polling place where on account of force majeure, violence, terrorism, fraud or other analogous causes the election has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect and in any of such cases the failure or suspension of election would affect the result of the election.  Such call should be on the basis of a verified petition by any interested party and after due notice and hearing, and the new date should be reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty (30) days after the cessation of the cause of such postponement or suspension of the election or failure to elect.

(9) Call a special election to elect the member to serve the unexpired portion in case a vacancy arises in the Senate or in the House of Representatives eighteen (18) months or more before a regular election, to be held within sixty (60) days after the vacancy occurs;

(10) Summons the parties to a controversy pending before it, issue subpoena duces tecum and take testimony in any investigation or hearing before it, and delegate such power to any officer of the Commission who shall be a member of the Philippine Bar. In case of failure of a witness to attend, the Commission, upon proof of service of the subpoena to said witness, may issue a warrant to arrest the witness and bring him before the Commission or the officer before whom his attendance is required.

Any controversy submitted to the Commission shall, after compliance with the requirements of due process, be immediately heard and decided by it within sixty (60) days from the date of its submission for decision or resolution.  No decision or resolution shall be rendered by the Commission either en banc or by division unless taken up in a formal session properly convened for the purpose.

The Commission may, when necessary, avail itself of the assistance of any national or local enforcement agency and/or instrumentality of the government to execute under its direct and immediate supervision any of its final decisions, orders, instructions or rulings.

(11) Punish for contempt according to the procedure and with the same penalties provided, in the Rules of Court. Any violation of any final and executory decision, order or ruling of the Commission shall constitute contempt thereof;

(12) Enforce and execute its decisions, directives, orders and instructions which shall have precedence over those emanating from any other authority, except the Supreme Court and those issued in habeas corpus proceedings;

(13) Prescribe the forms to be used in the election, plebiscite or referendum, recall or initiative;

(14) Procure any supplies, equipment, materials or services needed for the holding of the election by public bidding; but if it finds the requirements of public bidding impractical to observe, then by negotiations or sealed bids, and in both cases, the accredited parties shall be duly notified;

(15) Prescribe the use or adoption of the latest technological and electronic devices, taking into account the situation prevailing in the area and funds available for the purpose.  The Commission shall notify the authorized representatives of accredited political parties and candidates in the areas affected by the use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices;

(16) Constitute a pool of standby-teachers from which substitutes shall be drawn in case a member/s of the Board of Election Inspectors who, for one reason or another, failed to report or refused to act as such on the day of the election.

(17) Carry out a continuing systematic campaign through newspapers of general circulation, radio and other media forms to educate the public and fully inform the electorate about election laws, procedures, decisions, and other matters relative to the works and duties of the Commission and the necessity of clean, free, orderly, honest, peaceful and credible electoral processes;

(18) Accredited non-partisan groups or organizations of citizens from the civic, youth, professional, education, business or labor sectors known for their probity, impartiality and integrity with the membership and capability to undertake a coordinated operation and activity to assist it in the implementation of the provisions of the Omnibus Election Code and the resolutions, orders and instructions of the Commission for the purpose of ensuring free, orderly, honest, peaceful, and credible elections in any constituency.  Such groups or organizations shall function under the direct and immediate control and supervision of the Commission;

(19) Conduct hearing on controversies pending before it in the cities or provinces upon proper motion of any party, taking into consideration the materiality and number of witnesses to be presented, the situation prevailing in the area and the fund available for the purpose;

(20) Have exclusive jurisdiction over all pre-proclamation controversies.  It may motu proprio or upon written petition, and other due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made, as the evidence shall warrant.  Notwithstanding the pendency of any pre-proclamation controversy, the Commission, may motu proprio or upon filing of a verified petition and after due notice and hearing, order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy.

(21) Have the exclusive power, through its duly authorized legal officers, to conduct preliminary investigation of all election offenses punishable under the Omnibus Election Code and to prosecute the same.  The Commission may avail itself of the assistance of the other prosecuting arms of the Government: Provided, however, That in the event that the Commission fails to act on any complaint within four (4) months from its filing, the complainant may file the complaint with the office of the fiscal or with the Department of Justice for the proper investigation and prosecution, if warranted; and

(22) Perform such other functions as may be provided by law.

SOURCE:

Sec. 2, Chapter 1, Sub-title C, Title I, Book V, Administrative Code of 1987

Powers and Functions of the Commission on Elections

The Constitutional Provisions

The 1987 Constitution of the the Philippines (Sec. 2, Art. IX-C) provides for the following powers and functions of Commission on Elections. It provides, thus, to wit:

(1) Enforce and administer all laws and regulations relative to the enactment of an election, plebiscite, initiative, referendum, and recall.

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable.


(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters.

(4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful and credible elections.

(5) Register, after sufficient publication, political parties, organizations, or conditions which, in addition to other requirements, must present platform or program of government, and accredit citizen's arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence of unlawful means, or refuse to uphold and adhere to this Constitution or which are supported by any foreign government shall likewise be refused registration.

Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections constitute interference in the national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law.

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. [see People vs. Inting, 187 SCRA 788 and People vs. Delgado, 189 SCRA 715]

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates.

(8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order or decision.

(9) Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall.

Nature of the Right of Suffrage

The dictionary defines ELECTIONS as "a choosing by vote", while SUFFRAGE as "a vote or voting"; "the right to vote", which make both terms somewhat synonymous. Suffrage is an important political right appertaining to citizenship. Each individual qualified to vote is a particle of popular sovereignty. (Santos vs. Paredes, G.R. No. 45906 (Sup. Ct); Moya vs. Del Fierro, 69 Phil. 199)

The right of suffrage is predicated upon the theory that the people who bear the burden of government should share in the privilege of choosing the officials of that government. This is the theory of a representative form of government. (Macolor vs. Amores, G.R. No. L-8306, Nov. 5, 1953)

The right to vote is a political right or privilege, to be given or withheld at the exercise of the lawmaking power of the sovereignty. It is not a natural right of the citizen, but a franchise dependent upon law, which it must be conferred to permit its exercise. It can emanate only from the people, either in their sovereign statement of the organic law or through legislative enactment which they have authorized. It is not included among the rights of property or of person. Neither is it an absolute unqualified right, but is altogether conventional. When once granted, it may be taken away by the exercise of sovereign power, and if taken away no vested right is violated or bill of attainder passed. For example, those to whom the right of suffrage is guaranteed by the constitution cannot be deprived of it by any act of the legislature. (White vs. Multnomab County, 13 0.317)

The fundamental principle of suffrage consists of two things: first -- that every man entitled to vote may vote; second, that his vote may be sent forward and counted and so he may exercise his part of sovereignty in common with his fellow-citizen. (Paine, Law of Election, p. 2)

The object of suffrage is the continuity of government and the preservation and perpetuation of its benefits.  The right to vote is not of necessity connected with citizenship.  The rights of the citizen are civil rights, such as liberty of person and of conscience, the right to acquire and possess property, all of which are distinguishable from the political privilege. (McCrary, Am. Law of Election, 4th Ed., p. 3)

And finally, our Constitution provides: "The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them." (Art. II, Sec. 1, Declaration of Principles, 1987 Constitution).

The officers are mere agents and not rulers of the people, where no one man or set of men has a proprietary or contractual right to an office, but where every officer accepts office pursuant to the provisions of the law and hold the office as a trust for the people whom he represents. (Cornejo vs. Gabriel and Prov. Board of Rizal, 41 Phil. 188)

Reason for Creating COMELEC

The growing public distrust and dissatisfaction upon the way the Secretary of the Interior were exercising their powers under the election laws, including their arbitrary resolutions as to the location of polling places, compelled the National Assembly to create, by constitutional amendments, an independent Commission on Elections.   (Cortez vs. COMELEC, et al., 79 Phil. 352)

By the very nature of their functions, the members of the Commission on Elections must be independent. They must be made to feel that they are secured in the tenure of their office and entitled to fixed emoluments during their incumbency (economic security), so as to make them impartial in the performance of their functions -- their powers and duties.

That independence and impartiality may be shaken and destroyed by a designation of a person or officer to act temporarily in the Commission on Elections. It would be more in keeping with the intent purpose and aim of the framers of the Constitution to appoint a permanent Commissioner than to designate one to act temporarily. (Cortez vs. COMELEC, et al., 79 Phil. 352)

Under the Constitution, the Commission on Elections is an independent body or institution (Article X), just as the General Auditing Office is an independent office (Art. XI). The membership of the Commission for a fixed period of nine years (now seven), except as to the first members appointed who were to hold office for nine, six and three years (now seven, five and three years). With these periods, it was the intention of the framers of the Constitution to have one position vacant every three years, so that no President can appoint more than one Commissioner, thereby preserving and safeguarding the independence and impartiality of the Commission. (The Nationalista Party vs. Solicitor General, G.R. No. L-3452, Dec. 7, 1949; XV, L.J. 163)

The main purpose behind the creation of the Commission on Elections, was to place the supervision and control of the conduct of the elections and the enforcement of the election laws in the hands of an independent body, composed of public-spirited men, who, with the consciousness of the high dignity of performing the duties of a constitutional office, shall administer the law justly, impartiality without any partisanship, and never countenance for any reason or consideration an illegality.

The creation of the new body was intended to remedy the unsatisfactory situation created by the general belief, among the majority and the minority parties, that the Secretaries of the Interior were administering the election laws not for the purpose of securing an honest and free elections, but to serve the political interests of the party in power to which the secretaries belonged. (Cortez vs. COMELEC, et al., 79 Phil. 352)