Saturday, September 12, 2009
Qualifications of a Voter
Thursday, September 10, 2009
Roque et al vs COMELEC et al [3]
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 Philippines
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 Smartmatic 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 Smartmatic. 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.
Antecedents | Procedural Grounds | Substantive Issues | Ruling
Omnibus Election Code - Article XVI
OMNIBUS ELECTION CODE
Article XVI
OFFICIAL BALLOTS AND ELECTION RETURNS
SEC. 181. Official ballots. - Ballots for national and local offices shall be of uniform size and color and shall be provided at public expense. They shall be printed on paper with watermarks or other marks that will readily distinguish the ballot paper from ordinary paper. Each ballot shall be in the shape of a strip with stub and detachable coupon containing the serial number of the ballot, and a space for the thumb mark of the voter on the detachable coupon. It shall bear at the top on the middle portion thereof the coat of arms of the Republic of the Philippines, the words "Official Ballot," the name of the city or the municipality and province in which the election is held, the date of the election, and the following notice: "Fill out this ballot secretly inside the voting booth. Do not put any distinctive mark on any part of this ballot."
The ballot shall also contain the names of all the offices to be voted for in the election, allowing opposite the name of each office, sufficient space or spaces with horizontal lines where the voter may write the name of names of the individual candidates voted for by him.
There shall not be anything on the reverse side of the ballot.
Ballots in cities and municipalities where Arabic is of general use shall have each of the titles of offices to be voted printed in Arabic in addition to and immediately below the English title.
Notwithstanding the preceding provisions of this section, the Commission is hereby empowered to prescribe a different form of ballot to facilitate voting by illiterate voters and to use or adopt the latest technological and electronic devices as authorized under paragraph (i) of Section 52 hereof.
SEC. 182. Emergency ballots. - No ballots other than the official ballots shall be used or counted, except in the event of failure to receive the official ballots on time, or where there are no sufficient ballots for all registered voters or where they are destroyed at such time as shall render it impossible to provide other official ballots, in which cases the city or municipal treasurer shall provide other ballots which shall be as similar to the official ones as circumstances will permit and which shall be uniform within each polling place. The treasurer shall immediately report such action to the Commission.
The municipal treasurer shall not undertake the preparation of the emergency ballots unless the political parties, candidates and the organizations collectively authorized by the Commission to designate watchers have been sufficiently notified to send their representatives and have agreed in writing to the preparation and use of emergency ballots.
SEC. 183. Requisition of official ballots and election returns. - Official ballots and election returns shall be printed upon orders of the Commission. Requisition of official ballots shall be for each city and municipality, at the rate of one and one-fifth ballots for every registered voter in the next preceding election; and for election returns, at one set thereof for every polling place.
SEC. 184. Printing of official ballots and election returns. - The official ballots and election returns shall be printed by the Government Printing Office and/or the Central Bank printing facilities exclusively, under the exclusive supervision and control of the Commission which shall determine and provide the necessary security measures in the printing, storage and distribution thereof.
Each ballot shall be joined by a perforated line to a stub numbered consecutively, beginning with number "1" in each city and municipality. Each ballot shall also have at the bottom a detachable coupon bearing the same number of the stub. Each pad of ballots shall bear on its cover the name of the city or municipality in which the ballots are to be used and the inclusive serial numbers of the ballots contained therein.
The official ballots shall be bound in separate pads of fifty or one hundred ballots each as may be required.
The election returns shall be prepared in sets of six copies per set and shall be numbered consecutively, beginning with number "1" in each city and municipality. Each set of the election returns shall be printed in such a manner that will ensure that the entries on the original of the returns are clearly reproduced on the other copies thereof and shall bear the name of the city or municipality in which the returns are to be used. For this purposes, the Commission shall acquire, if necessary, a special kind of carbon paper or chemically treated paper.
SEC. 185. Sample official ballots. - The Commission shall provide the board of election inspectors with sample official ballots at the rate of thirty ballots per polling place. The sample official ballots shall be printed on colored paper, in all respects like the official ballots but bearing instead the words "Sample Official Ballot," to be shown to the public and used in demonstrating how to fill out and fold the official ballots properly. No name of any actual candidate shall be written on the spaces for voting on the sample official ballots provided by the Commission, nor shall they be used for voting.
Omnibus Election Code - Article XV
Sec. 178. Official watchers of candidates. - Every registered political party, coalition of political parties and every independent candidate shall each be entitled to one watcher in every polling place.
No person shall be appointed watcher unless he is a qualified voter of the city or municipality, of good reputation and shall not have been convicted by final judgment of any election offense or of any other crime, must know how to read and write Pilipino, English, Spanish or any of the prevailing local dialects, and not related within the fourth civil degree of consanguinity or affinity to the chairman or any member of the board of election inspectors in the polling place where he seeks appointment as a watcher.
Each candidate, political party or coalition of political parties shall designate in every province, highly urbanized city or district in the Metropolitan Manila area, a representative authorized to appoint watchers, furnishing the provincial election supervisor or the city election registrar, as the case may be, the names of such representatives. The provincial election supervisors shall furnish the municipal election registrars and election registrars of component cities with the list of such representatives.
In the case of Metropolitan Manila, the designation of the persons authorized to appoint watchers shall be filed with the Commission, which shall furnish the list of such representatives to the respective city and municipal election registrars.
Sec. 179. Rights and duties of watchers. - Upon entering the polling place, the watchers shall present and deliver to the chairman of the board of election inspectors his appointment, and forthwith, his name shall be recorded in the minutes with a notation under his signature that he is not disqualified under the second paragraph of Section 178. The appointments of the watchers shall bear the personal signature or the facsimile signature of the candidate or the duly authorized representatives of the political party or coalition of political parties who appointed him or of organizations authorized by the Commission under Section 180. The watchers shall have the right to stay in the space reserved for them inside the polling place. They shall have the right to witness and inform themselves of the proceedings of the board of election inspectors, including its proceedings during the registration of voters, to take notes of what they may see or hear, to take photographs of the proceedings and incidents, if any, during the counting of votes, as well as of election returns, tally boards and ballot boxes, to file a protest against any irregularity or violation of law which they believe may have been committed by the board of election inspectors or by any of its members or by any persons, to obtain from the board of election inspectors a certificate as to the filing of such protest and/or of the resolution thereon, to read the ballots after they shall have been read by the chairman, as well as the election returns after they shall have been completed and signed by the members of the board of election inspectors without touching them, but they shall not speak to any member of the board of election inspectors, or to any voter, or among themselves, in such a manner as would distract the proceedings, and to be furnished with a certificate of the number of votes in words and figures cast for each candidate, duly signed and thumbmarked by the chairman and all the members of the board of election inspectors. Refusal of the chairman and the members of the board of election inspectors to sign and furnish such certificate shall constitute an election offense and shall be penalized under this Code.
Sec. 180. Other watchers. - The duly accredited citizens arm of the Commission shall be entitled to appoint a watcher in every polling place. Other civic, religious, professional, business, service, youth and any other similar organizations, with prior authority of the Commission, shall be entitled collectively to appoint one watcher in every polling place.
Omnibus Election Code - Article XIV
OMNIBUS
ELECTION CODE
Article XIV
BOARD
OF ELECTION INSPECTORS
Sec. 164. Composition and appointment of board
of election inspectors. - At least thirty days
before the date when the voters list is to be prepare in accordance with this
Code, in the case of a regular election or fifteen days before a special
election, the Commission shall, directly or through its duly authorized
representatives, constitute a board of election inspectors for each precinct to
be composed of a chairman and a poll clerk who must be public school teachers,
priority to be given to civil service eligibles, and two members, each
representing the two accredited political parties. The appointment shall state
the precinct to which they are assigned and the date of the appointment.
Sec. 166. Qualification of members of the board
of election inspectors. - No person shall be
appointed chairman, member or substitute member of the board of election
inspectors unless he is of good moral character and irreproachable reputation,
a registered voter of the city or municipality, has never been convicted of any
election offense or of any other crime punishable by more than six months of
imprisonment, or if he has pending against him an information for any election
offense. He must be able to speak and write English or the local dialect.
Sec. 167. Disqualification. - No person shall serve as chairman or member of the board of
election inspectors if he is related within the fourth civil degree of
consanguinity or affinity to any member of the board of election inspectors or
to any candidate to be voted for in the polling place or his spouse.
Sec. 168. Powers of the board of election
inspectors. - The board of election
inspectors shall have the following powers and functions:
a.
Conduct the voting and counting of
votes in their respective polling places;
b.
Act as deputies of the Commission in
the supervision and control of the election in the polling places wherein they
are assigned, to assure the holding of the same in a free, orderly and honest
manner; and
c.
Perform such other functions prescribed
by this Code or by the rules and regulations promulgated by the Commission.
Sec. 169. Voting privilege of members of board
of election inspectors. - Members of the board of
election inspectors and their substitutes may vote in the polling place where
they are assigned on election day: Provided, That they are registered voters
within the province, city or municipality where they are assigned: and
Provided, finally, That their voting in the polling places where they are not
registered voters be noted in the minutes of the board of election inspectors.
Sec. 170. Relief and substitution of members of
the board of election inspectors. -
Public school teachers who are members of the board of election inspectors
shall not be relieved nor disqualified from acting as such members, except for
cause and after due hearing.
Any
member of the board of election inspectors, nominated by a political party, as
well as his substitute may at any time be relieved from office and substituted
with another having the legal qualifications upon petition of the authorized
representative of the party upon whose nomination the appointment was made, and
it shall be unlawful to prevent said person from, or disturb him in, the
performance of the duties of the said office. A record of each case of
substitution shall be made, setting forth therein the hour in which the
replaced member has ceased in the office and the status of the work of the
board of election inspectors. Said record shall be signed by each member of the
board of election inspectors including the incoming and outgoing officers.
Sec. 171. Vacancy in the board of election
inspectors. - Every vacancy in the board of
election inspectors shall be filled for the remaining period in the manner
hereinbefore prescribed.
Sec. 172. Proceedings of the board of election
inspectors. - The meetings of the board of
election inspectors shall be public and shall be held only in the polling place
authorized by the Commission.
The
board of election inspectors shall have full authority to maintain order within
the polling place and its premises, to keep access thereto open and
unobstructed, and to enforce obedience to its lawful orders. If any person
shall refuse to obey lawful orders of the board of election inspectors, or
shall conduct himself in a disorderly manner in its presence or within its
hearing and thereby interrupt or disturb its proceedings, the board of election
inspectors may issue an order in writing directing any peace officer to take
such person into custody until the adjournment of the meeting, but such order
shall not be executed as to prevent any person so taken into custody from
exercising his right to vote. Such order shall be executed by any peace officer
to whom it may be delivered, but if none be present, by any other person
deputized by the board of election inspectors in writing.
Sec. 173. Prohibition of political activity. - No member of the board of election inspectors shall engage in
any partisan political activity or take part in the election except to discharge
his duties as such and to vote.
Sec. 174. Functioning of the board of election
inspectors. - The board of election
inspectors shall act through its chairman, and shall decide without delay by
majority vote all questions which may arise in the performance of its duties.
Sec. 175. Temporary vacancies. - If, at the time of the meeting of the board of election
inspectors, any member is absent, or the office is still vacant, the members
present shall call upon the substitute or the absent members to perform the
duties of the latter; and, in case such substitute cannot be found, the members
present shall appoint any non-partisan registered voter of the polling place to
temporarily fill said vacancy until the absent member appears or the vacancy is
filled. In case there are two or more members present, they shall act jointly:
Provided, That if the absent member is one who has been proposed by an
accredited political party, the representative of said political party or in
his absence the watchers belonging to said party shall designate a registered
voter of the polling place to temporarily fill said vacancy: Provided, further,
That in the event or refusal or failure of either representative or watchers of
said political party to make the designation, the members of the board of
election inspectors present shall choose a non-partisan registered voter of the
polling place to fill the vacancy.
Sec. 176. Temporary designation of members of
the board of election inspectors by watchers. - If
at the time the board of election inspectors must meet, all the positions in
the board of election inspectors are vacant, or if not one of the appointed
members shall appear, the watchers present may designate voters of the polling
place to act in the place of said members until the absentees shall appear or
the vacancies are filled.
Sec. 177. Arrest of absent members. - The member or members of the board of election inspectors
present may order the arrest of any other member or substitute thereof, who in
their judgment, has absented himself with intention of obstructing the
performance of duties of the board of election inspectors.
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