This developed after the counsel of Comelec Chairman Benjamin Abalos argued that any move to question Benipayo over the voided deal would violate the client-lawyer relationship.
Lawyer Anacleto Diaz pointed out Benipayo represented Comelec as the government lawyer when the automation deal was being questioned before the Supreme Court ahead of the May 10, 2004 elections.
"The Supreme Court says a lawyer cannot give evidence against his former client," Diaz told the Ombudsman panel.
"It would be unfair for Justice Benipayo to give evidence on the Mega Pacific deal as this is covered by the lawyer-client rule. Unless there is consent from the client, no lawyer can give information on matters he was privy to," he said.
Special Prosecutor Dennis Villa Ignacio, a member of the panel formed by the Ombudsman to conduct the clarificatory hearings over the voided poll automation program, reminded Diaz that the lawyer-client privilege is not an absolute rule.
"It can be waived, it is not absolute," he said.
Villa Ignacio added the panel only intends to question Benipayo regarding a statement he made during the Senate probe of the voided Mega Pacific deal.
He told Diaz that the panel merely wanted to clarify the statement, not any other information exclusive to the lawyer-client relationship.
"We are not dealing with information but on a statement he made during the Senate probe. I do not see anything objectionable to that," Villa Ignacio told Diaz.
The panel had invited Benipayo, who had served as Supreme Court justice and also Comelec chairman, as a resource person to answer some questions as part of its clarificatory investigation.
Benipayo later told the panel he will not answer any question until panel members resolved the argument tossed by Diaz.
The magistrate also suggested before the panel to just focus on the documentary evidence of the case since any testimony elicited from him would not add any new information.
"To my recollection, confidentiality was not an issue (in the Senate hearing). Whether there was overpricing or not, it could be answered by the documents. All of these are documentary," Benipayo said.
"I do not know if I could improve on what the documents contain. I suggest that we just go through the records and the contracts," he said.
Gabriel Villareal, counsel for Comelec Commissioner Resurreccion Borra, added that any questioning on Benipayo over the voided automation deal risks "tainting the entire procedure with nullity."
The Senate inquiry uncovered the automation deal with Mega Pacific was overpriced by half a billion pesos.
The Supreme Court later voided the Mega Pacific contract in January 2004 for being grossly onerous.
The high court ordered the government to recover the P850-million paid by Comelec to Mega Pacific.
As a result of the ruling, ownership of the counting machines reverted to Mega Pacific even after Comelec had already paid P850 million.
Villa Ignacio said the panel will issue a resolution on the argument raised by Diaz but invited Benipayo to appear again on Thursday for the resumption of the clarificatory hearing.
Alabastro and Celis said the Mega Pacific counting machines are accurate. Both gave their testimonies before the panel looking into the possibility of using the machines for the 2007 midterm elections.
Election lawyer Romulo Macalintal earlier filed a taxpayer’s petition urging the high court to reconsider using the counting machines for the elections next year.
"Verily, it can be said that there has been a change in circumstances which may prompt the High Tribunal to perceive Atty. Macalintal’s motion differently," Mega Pacific said in the statement.
"What are they afraid of in the first place? That a public demonstration of the machines would prove them wrong? If they are so confident that the machines are defective, then why are they moving heaven and earth to thwart a demonstration?" Mega Pacific added.
Alabastro told the panel that their numerous tests showed the counting machines had passed the 14-hour endurance tests to determine their reliability and accuracy.
"These numerous tests showed that the ACMs (automatic counting machines) which require minimum human intervention were able to count 20,000 ballots with 440,000 votes in a span of 14 hours without a single error," she said.
Alabastro said the accuracy rating by the DOST and IT experts also proved the machines are in accordance with the requirements of the Election Modernization Act.
She said a panel of experts tested the hardware and software components of the machines.
Alabastro even expressed her willingness to stake her position to back the findings of the DOST on the accuracy of the machines.
Alabastro went on to appeal to the complainants in the voided Mega Pacific contract to attend the clarificatory hearings of the Ombudsman.
The case was referred back by the Supreme Court to the Ombudsman to investigate if other Comelec officials are criminally liable.
The Ombudsman is presently conducting a probe although it submitted a recommendation to the House of Representatives in initiating an impeachment proceeding against Borra last June 30.
Alabastro also belied the allegations made by petitioner Augusto Lagman and Maricor Akol, of the Information Technology Foundation of the Philippines (ITFP), in supposedly quoting her and other DOST officials that Mega Pacific consortium failed in the accuracy test of the machines.
"That is not true. I never mentioned any word to that effect saying that Mega Pacific failed the tests conducted by my department," Alabastro said.