Festering

Does the Supreme Court still matter?

The Court recently affirmed with finality its decision to overturn the Comelec’s arbitrary disqualification of Smartmatic. The poll body’s motion for reconsideration was rejected. But that does not, however, mean that the humongous P18-billion contract awarded will be rebid.

Because the Comelec overstepped its bounds and disqualified a potential bidder without proper process, the way was cleared for a bidding process with only one bidder participating. That is almost a mockery of our procurement laws.

That single bidder, the consortium led by South Korean firm Miru, was awarded the contract despite the legal requirement for procured election technology to have a clear record of performance in a previous election. Miru submitted, and the Comelec approved, untried and untested technology that the supplier itself described as a “prototype.”

The Supreme Court’s ruling in Smartmatic vs. Comelec found that the poll body ignored due process by summarily disqualifying a long-time supplier of our counting machines. In fact, the machines supplied by Smartmatic are all operational and covered by warranty. We could have saved P18 billion in taxpayer money if these machines, already owned by the Comelec, were reused and the procurement for new machines delayed until the next elections cycle. But the poll body chose to decommission the machines.

But the Comelec, it seems, is in such a hurry to spend the money on new machines – even if the new machines are untested. The commissioners were itching to shop.

In two other cases – Macalintal vs Comelec and de Guzman-Lara vs Comelec – the Court admonished the poll body for grave abuse of discretion. The Court’s appraisal seriously undermines public confidence in the ability of the poll body to manage the coming elections.

Public confidence is taxed further by the abrupt withdrawal of St. Timothy Construction Corporation from the Miru-led joint venture. That raises further questions about the Comelec’s conduct of due diligence in awarding such a critical contract. It also raises serious legal issues about whether the contract with the consortium subsists after one partner backed out.

The Comelec does not appear to have acknowledged in any way the Court’s ruling about its arbitrary exclusion of one possible bidder and the process by which it decided to award the contract. Civil society groups have raised issues of transparency. The Comelec simply ignored them all?

With all the red flags waving about this humongous procurement deal and with the imperious manner with which the Comelec has dealt with legal questions raised, those most concerned with the issue are left with only one recourse. The flawed bidding, the heavy-handed disqualification of one bidder, the lack of transparency at nearly every stage of the process all provide ground for taking the Comelec to the Office of the Ombudsman.

There was grave abuse of discretion and it is possible the public’s best interest was harmed.

Alternative dump

Over a hundred local governments and many industries are in a quandary over where they may legally dump their trash.

As discussed in the previous column, the Capas RTC restrained the Clark Development Corporation (CDC) from evicting Metro Clark from the Kalangitan Landfill it has been using for 25 years now. A similar petition field with the Angeles City RTC was junked for forum shopping.

Metro Clark’s lease on the 100-hectare property has expired. The CDC intends to reuse the area and has billions in new investments lined up. While the court’s injunction is in effect, CDC cannot move to redevelop the area for better economic returns.

However, CDC points out, the injunction, while it prevents eviction, does not return things to status quo ante. CDC’s contract with Metro Clark no longer exists. Therefore, it cannot continue the operation of the landfill.

This appears to leave Metro Clark holding an empty bag. While it cannot be evicted because of the court’s injunction, it cannot continue doing business either. Its contract expired. Without it, the company cannot possibly acquire environmental clearance for their landfill. Neither has it been given a valid permit to operate.

The CDC is adamant in its legal appreciation of the situation. Continued operation of the Kalangitan landfill is illegal.

Only the CDC may issue a permit to operate the dumpsite. That permit expired with the end of the Metro Clark contract. Only the CDC may decide on extending the contract – which, as things stand, it will not do.

The CDC, not the court, has jurisdiction over the Kalangitan landfill. Any court will overstep its jurisdiction if it cancels the ownership rights of the government agency. That will be a travesty.

The CDC exercises regulatory powers provided it under Republic Act 7227 and subsequent issuances. There is no way the Capas RTC could bury that fact.

Confident in its legal standing, the CDC complied with the temporary restraining order and preferred to wait until all legal questions are cleared out. The delay in implementing its investment plan is treated simply as part of the hazards of doing business in this country.

However, the CDC warns that Metro Clark will be violating the law by continuing its business in the dump site. The violation, possibly, extends to the local governments and industries sending their waste to the dump site. The CDC will not stand idly if Metro Clark continues doing its business without a contract and all the needed permits.

Those who use this dumpsite should begin looking for alternatives.