MANILA -- A group of lawyers Thursday filed a petition asking the Supreme Court (SC) to stop the Commission on Elections (Comelec) from signing an automation deal with a private consortium.

The petition for the issuance of a temporary restraining order (TRO) was filed a day before the Comelec and winning bidders Smartmatic Corporation and its Filipino partner Total Information Management (TIM) are set to sign the P7.2-billion deal, amid controversies shrouding their joint venture.

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Despite the citizens' protest, Comelec Chairman Jose Melo said they will proceed with the signing Friday.

The poll automation project almost did not push through after TIM backed out from the consortium due to differences over the implementation of the project. However, the two firms eventually ironed out their "internal" dispute.

But Chief Justice Reynato Puno, in an interview, hinted that the High Court may not act on the petition until its regular en banc session on Tuesday next week.

"I have yet to see the petition, but it will be calendared for deliberation on Tuesday. We will tackle the petition en banc," Puno said.

Petitioners in the taxpayer suit were University of the Philippines lawyers Harry Roque, Joel Butuyan, Rommel Bagares, Allan Jones Lardizabal, Gilbert Andres, Immaculada Garcia, Erlinda Mercado, Francisco Alcuaz, Ma. Azucena Maceda, and Alvin Peters.

In their petition, the group said the automation contract, if ever it is officially awarded to the consortium, violates certain provisions of Republic Act (RA) 9369, or the poll automation law.

Pilot testing

According to Roque, the Comelec failed to conduct any pilot testing of the precinct count optical scan (PCOS) machines by Smartmatic-TIM, pursuant to Section 6 of RA 9369, which stated that the automated election system (AES) shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao.

He noted that the pilot test conducted by the Comelec during the Autonomous Region in Muslim Mindanao (Armm) elections in 2008 could not be considered as compliance with this provision since it made use of different automation machines by different manufacturers.

The election body also failed to adhere to Section 12 of RA 9369 which requires that with respect to the May 10, 2010 elections and succeeding electoral exercises, the machines procured for poll automation must have demonstrated capability and had been successfully used in a prior electoral exercises here or abroad, petitioners said.

For one, Smartmatic-TIM only submitted to the Comelec special bids and awards committee (SBAC) the certificate of acceptance addressed to a third party, Dominion Voting Systems, an election provider in Canada, stating that the said election machines have been successfully used in a prior electoral exercise, Roque said.

"This patent misrepresentation by respondent Smartmatic-TIM is evidence of bad faith and intent to defraud the government," petitioners said.

Furthermore, the PCOS machines offered by Smartmatic-TIM failed to comply with the minimum system capabilities as described under Section 6 of the poll automation such as accuracy in recording and reading of votes as well as in the tabulation, consolidation, canvassing, electronic transmission, and storage results.

The Comelec-SBAC has set that the automated election system shall count the voter's vote as marked on the ballot with an accuracy rating of at least 99.995 percent or an error of 0.005 percent.

Violation

Smartmatic also did not include Jarltech Corporation as a member of the alleged joint venture even if the PCOS machines are to be procured from it, which is a violation of the SC's ruling in Information Technology Foundation of the Philippines (ITFP) vs. Comelec, which mandated the latter to determine the full identity of the entity it is dealing with.

The consortium also did not include Dominion Voting Systems and ToGo Corporation, as members of the joint venture even if the said companies are responsible for the software and the distribution of the PCOS machines, respectively.

"Since Jarltech, Dominion, and ToGo are not privy to the contract to be entered between Comelec and the alleged Smartmatic-TIM joint venture, these three entities are obviously not jointly and severally liable with respondents Smartmatic and TIM," said Roque.

While insisting that they are not against poll automation, petitioners claimed that they wanted to hold it after the 2010 elections or after President Gloria Macapagal-Arroyo's term because "we do not trust her."

Roque said it is necessary to make sure that safeguards are in place to ensure that there will be no cheating in the 2010 elections. (ECV/Sunnex)