Computerization mumbo-jumbo

(Part 3)

Let’s get down to brass tacks. There are those who urge, like old Mafioso dons, that we should let the nullified computer purchase contract between the Commission on Elections and the Mega Pacific Group "sleep with the fishes."

On the other hand, there appears to be an effort by both Comelec and Malacanang itself to put to good use the 1,991 machines already delivered by the supplier and fully paid for by the Commission. The argument is also made that all the machines passed rigorous accuracy tests administered by the Department of Science and Technology.

However, both the Commission and the Palace know that the unambiguous decision of the Supreme Court in the case of Information Technology Foundation of the Philippines, et al. vs. Commission on Elections , et al (January 13, 2004) is a formidable, if not insurmountable, obstacle.

Without an "approval" by the Supreme Court of the use of the equipment despite the invalidation of the purchase contract, one remedy being explored by the Palace is to somehow "reopen" the case. GMA election lawyer Romulo Macalintal vows he will file a case for that purpose, without prejudice to ongoing investigations by the Ombudsman into possible criminal liability arising from the nullification of the Mega Pacific contract.

Even if deemed by some quarters to be a long shot, this is far from being an exercise in futility. The GMA administration appears to favor this route, not only because the almost P1 billion already spent will not be wasted, the resulting automation of the 2007 polls could also be touted as a delivery on its commitment to effect electoral reform.

But is there anything in the Supreme Court decision which may indicate that the Justices may be disposed to review the matter, if properly raised for their attention? In its resolution on the respondents’ motion for reconsideration, the Court firmly ruled that its denial of that motion was "final." But some people seem to be of the view that when the Court says its decision is final, the unwritten caveat is "unless there is good and valid reason to reopen the matter." Whether they’re right remains to be seen.

The vote among the Supreme Court Justices was 9 to 5. The five dissenters were Chief Justice Hilario Davide and Associate Justices Jose Vitug, Renato Corona, Adolfo Azcuna and Dante Tinga.

To start with, Justice Jose Vitug’s dissent raised a technical, but in my view vital, legal issue. The majority had, in his view, made findings of fact in an original action brought directly to the Supreme Court. This was not an appeal from a decision from a lower court which had conducted a full hearing of the facts. The Justice remarked that the Supreme Court was "not a trier of facts" and that "a review of the evidence" was "not the proper office" of an original petition for certiorari, prohibition or mandamus.

Justice Vitug’s point is actually a simple one. He thought that the petition should have been dismissed for being premature because the Supreme Court does not resolve issues of fact, only issues of law. Considering that the case hinged on the resolution of factual disputes, it was inappropriate for the High Court to take cognizance of it.

But the majority of Justices held that direct resort to the Supreme Court was justified. In its resolution denying reconsideration, the Court ruled that the respondents’ prayer for a new hearing was without merit, noting that: "The Court has given the parties more than sufficient opportunity to explain their causes through their kilometric pleadings and their exhaustive presentations during the Oral Argument."

Chief Justice Davide asserted that, "Setting aside the contract in question at this late hour may have unsettling, disturbing and even destabilizing effect." The Chief, in the minority in this case, also said that, "there is no suggestion that graft and corruption attended the bidding process, or that the contract price is excessive or unreasonable."

He thought it was "precipitate" for the Court to "declare void the contract in question." His main point was the impracticability of going through the whole bidding and award process all over again, in time to computerize the 2004 elections.

For his part, Justice Tinga argued in a long separate opinion that the petitioner had failed to exhaust administrative remedies and had other remedies in the ordinary course of law. Under Republic Act No. 9184, decisions of the Comelec Bids and Awards Committee, which had found the winning bidder eligible to bid, could be appealed to the Comelec en banc. However, the petitioners never questioned that finding of the BAC during the entire bidding process.

Briefly, too, Justice Tinga had a different appreciation of the circumstances of the case. Contrary to the majority’s conclusion, he felt that the Mega Pacific Consortium did participate in the bidding. Further, Mega Pacific eSolutions, Inc., with whom the Comelec actually signed the contract, was the lead member of that consortium and was authorized to sign on behalf of the other consortium members. The consortium agreements, he said, were sufficient to prove the existence of that joint venture.

Moreover, Justice Tinga said, the Mega Pacific counting machines met the criteria prescribed by law, as evaluated by a technical working group of the Department of Science and Technology. All the 1,991 machines supplied by Mega Pacific satisfied mandatory requirements. The "failed" marks were mere formalities in certain documentary requirements. These certifications by the DOST, he said, "should be accorded full faith and credit, there being no justification for a contrary stance."

Of course, as far as those opposing any contract with the Mega Pacific group are concerned, the only place fit for those machines supplied by Mega Pacific’s South Korean partner is the garbage dump. Moreover, those involved in the voided contract, led by top officials of Comelec, should be locked up in jail and the key thrown away.

In our jurisdiction, legal considerations usually trump allegations of practicality or lack of material time. In this case, however, one can’t be too sure. From Macalintal’s point of view, his legal "intervention" in the case would be the "win-win" solution, considering the uncertainty of recovering the amounts paid to the supplier and the very real possibility that the machines would deteriorate until totally useless.

Now, if he could only convince the opponents of Mega Pacific, particularly those who claim that elections are too sacred an undertaking to risk on allegedly "faulty" machines purveyed by a "ineligible" supplier and his phantom business partners.