Atty. Sonny Pulgar’s Blog & personal website.


Jul 16, 2005Articles0 comments

Had the 2004 elections been computerized and not conducted in what observers then called the archaic system of manual counting, today’s allegations of cheating and rigging would simply be baseless. It is disturbing (but also revealing) that hardly anyone is campaigning for election reforms today. This leads to the conclusion that many in the political class seem content with an outdated electoral system that is not only open to manipulation but also extremely destabilizing. (Insincere political class By Dr. Ronald Meinardus resident representative of the Friedrich Naumann Foundation and a commentator on Asian affairs liberal@fnf.org.ph Inquirer News Service July 03, 2005)

COMELEC two years ago laid the groundwork for the first computerized election ever in the Philippines. A little less than 12 months before the presidential elections in May, 2004, COMELEC drumbeaters had made us believe that we shall at last have state-of-the-art computers the election agency acquired for billions of pesos. On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172, which allocated the sum of P2.5 billion to fund the automated election system for the May 10, 2004 elections. Upon the request of Comelec, she authorized the release of an additional P500 million (INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, MA. CORAZON M.  AKOL, MIGUEL UY, EDUARDO H. LOPEZ, AUGUSTO C. LAGMAN, REX C. DRILON, MIGUEL HILADO, LEY SALCEDO, and MANUEL ALCUAZ JR., petitioners, vs. COMMISSION ON ELECTIONS; COMELEC CHAIRMAN BENJAMIN ABALOS SR.; COMELEC BIDDING and AWARD COMMITTEE CHAIRMAN EDUARDO D. MEJOS and MEMBERS GIDEON DE GUZMAN, JOSE F. BALBUENA, LAMBERTO P. LLAMAS, and BARTOLOME SINOCRUZ JR.; MEGA PACIFIC eSOLUTIONS, INC.; and MEGA PACIFIC CONSORTIUM,respondents. . [G.R. No. 159139.  January 13, 2004])

COMELEC therefore had a total budget of P3B.

Right after the contract award was made, and after paying the prevailing bidder P1, 048,828,407.00, a losing entity went to the Supreme Court and asked that the computer agreement be voided for failure to comply with some indispensable requirements. The Comelec chairman — speaking through Atty. Jaime Paz, his head executive assistant — rejected the protest and declared that the award “would stand up to the strictest scrutiny.” Unfazed, the poll body went on to spread the information that come hell or high water, we shall computerize and become a regular member of technological mainstream whose final election results are news barely twenty four hours after. There is no belabouring the point that swift and accurate voting results spell political stability. Whereas stranded counting destabilizes and contributes to a precarious political situation.

That was precisely why the filing of certificates of candidacy was advanced well before the May, 2004 vote giving the election agency lead time to prepare for an unfamiliar manner of voting. Hence, the poll body had set a tri-media massive public information to acquaint the electorate of the novelty. The candidates both local and national scurried to file their intentions and exposed themselves six months before the elections. Who do you think had the advantage? Of course the sitting officials who had at their disposal the massive resources of the government. Naturally the opposition was caught unaware not because of the computerized counting but the advanced registration and filing. The opposition was caught at the height of its dissension on who shall be its standard bearer. With the perceived disunity of the opposition, their benefactors clammed and cozied up with the administration, for good reason because the matter of six months could be disastrous to them. Disclosing one’s preference by a good six months prior to election courts the proverbial neck breathing.

Then came the retirement of known Erap protégés, the unlamented Commisioners Ralph Lantion and Luzviminda Tancangco. By appointing Emmanuel Barcelona and Virgilio Garcillano as replacements, the administration scraped the other camp as a tit-for tat. These two gofers were not meant for confirmation by the Commission on Appointments, the administration saw to that, because the moment it tabled their appointments, the opposition would pounce on them. Garcillano on hindsight is a useful hitman. His records in the COMELEC have recently come to light. Randy David aptly described him as the man who does not count election results but produces them.

As early as January, 2004 the presidential security adviser Norberto Gonzalez was heard saying that the computerized election would be scrapped by the Supreme Court. Apparently, this Malacanang stooge has pipeline in the high tribunal. It is not surprising because for the last three years the high court was packed by GMA’s and Mike Arroyo’s protégés.

Then came the bombshell. On January 13, 2004, the Supreme Court nullified COMELEC Resolution No. 6074 awarding the contract for Phase II of the AES [Automated Election System] to Mega Pacific Consortium (MPC).  Also declared null and void was the Contract executed between COMELEC and Mega Pacific eSolutions (MPEI).  In that decision COMELEC was further directed to refrain from implementing any other contract or agreement entered into with regard to that project.

COMELEC Chairman Benjamin Abalos rejected calls for him to resign after the Supreme Court voided the poll body’s contract for the automation of vote counting in the May elections. “No one is resigning,” Abalos said. “We are filing a motion for reconsideration because we want to clear our name. In my 68 years, I have a clear name. I can proudly say that I am in this position because of hard work,” he said (Philippine Daily Inquirer, January 14, 2004)

PRESIDENT Gloria Macapagal-Arroyo said that elections must go ahead as scheduled on May 10 even with manual counting of votes after the Supreme Court scrapped a contract for automated polls. “I have trust in the capability of the Comelec (the government poll watchdog Commission on Elections) as an institution to implement clean and credible elections under the law and jurisprudence,” Macapagal told a news conference. “The elections and the institution of elections are very important to our political stability and economic stability, and we must focus our efforts and capability to implement the elections as scheduled,” she said. “The future of our democracy is at stake,” the President said (PDI, Ibid.)

Upon denial by the High Court of Comelec’s Motion for Reconsideration on February 17, 2004, ten months thereafter, the latter filed a”Most Respectful Motion for Leave to Use the Automated Counting Machines in [the] Custody of the Commission on Elections for use (sic) in the August 8, 2005 Elections in the Autonomous Region for Muslim Mindanao (ARMM),” dated December 9, 2004. In a Resolution dated June 21, 2005, the Supreme Court denied the said motion rationalizing in this wise:

Decision Subverted by the Motion

There are several reasons why the present Motion must be denied.  First, although it professes utmost respect for the finality of our Decision of January 13, 2004 — an inescapable and immutable fact from which spring equally ineludible consequences — granting it would have the effect of illegally reversing and subverting our final Decision.  Plainly stated, our final Decision bars the grant of the present Motion.

To stress, as a direct result of our January 13, 2004 Decision, the Contract for the supply of the subject ACMs was voided, and the machines were not used in the 2004 national elections.  Furthermore, the OSG was directed “to take measures to protect the government and vindicate public interest from the ill-effects of the illegal disbursements of public funds made by reason of the void Resolution.”  Accordingly, in Civil Case No. 04-346, the government counsel has prayed for mutual restitution; and for the “return of all payments, amounting to P1,048,828,407.00 made by Comelec to Mega Pacific under the void Contract.”

In the meantime, Comelec has done nothing — at least, nothing has been reported in the present Motion — to abide by and enforce our Decision.  Apparently, it has not done anything to rectify its violations of laws, jurisprudence and its own bidding rules referred to in our judgment.  Neither has it reported any attempt to correct and observe the “mandatory financial, technical and legal requirements” needed to computerize the elections.

Apparently, it has simply filed the present Motion asking permission to do what it has precisely been prohibited from doing under our final and executory Decision.  If law and jurisprudence bar it from using the subject ACMs during the last elections, why should it even propose to use these machines in the forthcoming ARMM elections?  True, these elections are important.  But they cannot be more important than the 2004 national elections.  Note that the factual premises and the laws involved in the procurement and use of the ACMs have not changed.  Indeed, Comelec has not even alleged, much less proven, any supervening factual or legal circumstances to justify its Motion.

Basic and primordial is the rule that when a final judgment becomes executory, it thereby becomes immutable and unalterable.  In other words, such a judgment may no longer undergo any modification, much less any reversal, even if it is meant to correct what is perceived to be an erroneous conclusion of fact or law; and even if it is attempted by the court rendering it or by this Court.[7]  Equally well-entrenched is the doctrine that what is not permitted to be done directly may not be done indirectly either.  In the instant case, it is unarguable that the inexorable result of granting the present Motion will precisely be a subversion of the Decision, or at least a modification that would render the latter totally ineffective and nugatory.

To support its present Motion, Comelec appended as Annex 1 a letter dated January 22, 2004.  Addressed to its chairman, the Annex was signed by four[8] self-proclaimed “information technology experts,”[9] who had gratuitously contended that this Court’s Decision was “one of the most inopportune rulings ever to come out of the hallowed halls of that High Tribunal”; blame the Decision for supposedly forcing our people “to entrust their votes to a manual system of counting and canvassing that have been proven to be prone to massive fraud in the past”; and mouth legal/technical arguments that have already been repeatedly debunked in the Decision and Resolution here.  The letter also included a long-winded, tortuous discussion of the software development life cycle.  A quick check of the case records confirmed our suspicion.  The very same letter dated January 22, 2004 had previously been appended as Annex 2 to private respondents’ “Omnibus Motion A) for reconsideration of the Decision dated 13 January 2004; b) to admit exhibits in refutation of the findings of fact of the Court; c) to have the case set for hearing and/or reception of evidence if deemed necessary by the Court.”  The only difference is that this time around, Comelec overlooked or failed to photocopy the last page (page 17) of the letter, bearing the signatures of the four other purported “information technology experts.”[10]  In other words, to support its present Motion, it merely recycled an earlier exhibit that had already been used in seeking reconsideration of our aforesaid Decision.

While expressing utmost reverence for the finality of the Decision, Comelec implicitly seeks, nevertheless, to have this Court take up anew matters that have already been passed upon and disposed of with finality.
It is a hornbook doctrine that courts are presumed to have passed upon all points that were raised by the parties in their various pleadings, and that form part of the records of the case.  Our Resolution, disposing of respondents’ arguments on reconsideration, did not explicitly and specifically address all of the matters raised in the said letter of January 22, 2004.  It is presumed however, that all matters within an issue raised in a case were passed upon by the Court,[11] as indeed they were in the instant case.  And as we have held elsewhere,[12] courts will refuse to reopen what has been decided; they will not allow the same parties or their privies to litigate anew a question that has been considered and decided with finality.
Besides, the letter of January 22, 2004, laden as it is with technical jargon and impressive concepts, does not serve to alter by even the minutest degree our finding of grave abuse of discretion by Comelec, on account of its clear violations of law and jurisprudence and its unjustifiable and reckless disregard of its own bidding rules and procedures.

Furthermore, the letter would obviously not contain anything that might serve to persuade us that the situation obtaining in January 2004 has so changed in the interim as to justify the use of the ACMs in August 2005.

The Commission seems to think that it can resurrect the dead case by waving at this Court a letter replete with technical jargon, much like a witch doctor muttering unintelligible incantations to revive a corpse.

In its main text, the Motion concedes that our Decision “has become final and executory,” and that all that remains to be done is “to make mutual restitution.”[13]  So, what is the relevance of all these useless argumentations and pontifications in Annex 1 by the Commission’s self-proclaimed “experts”?  For its own illegal acts, imprudence and grave abuse of discretion, why blame this Court?  For Comelec to know immediately which culprit should bear full responsibility for its miserable failure to automate our elections, it should simply face the mirror.

Recovery of Government Funds Barred by the Motion

Second, the grant of the Motion will bar or jeopardize the recovery of government funds improvidently paid to private respondents, funds that to date the OSG estimates to be over one billion pesos.  At the very least, granting the Motion will be antagonistic to the  directive in our Decision for the OSG to recover the “illegal disbursements of public funds made by reason of the void Resolution and Contract.”

Indeed, if the government is conned into not returning the ACMs but instead keeping and utilizing them, there would be no need for Mega Pacific to refund the payments made by Comelec.  In fact, such recovery will no longer be possible.  Consequently, all those who stood to benefit (or have already benefited) financially from the deal would no longer be liable for the refund.  They can argue that there was nothing wrong with the voided Resolution and Contract, nothing wrong with the public bidding, nothing wrong with the machines and software, since the government has decided to keep and utilize them.  This argument can be stretched to abate the criminal prosecutions pending before the OMB and the impeachment proceedings it is considering.  After all, “reasonable doubt” is all that is needed to secure acquittal in a criminal prosecution.

In brief, the poll body’s Motion not only asks for what is legally impossible to do (to reverse and subvert a final and executory Decision of the highest court of the land), but also prevents the Filipino people from recovering illegally disbursed public funds running into billions of pesos.  Verily, by subverting the Decision of this Court, the Motion would be unduly favoring and granting virtual immunity from criminal prosecution to the parties responsible for the illegal disbursement of scarce public funds.

Use of the ACMs and Software Detrimental to ARMM Elections

Third, the use of the unreliable ACMs and the nonexistent software that is supposed to run them will expose the ARMM elections to the same electoral ills pointed out in our final and executory Decision.  Be it remembered that this Court expressly ruled that the proffered hardware and software had undeniably failed to pass eight critical requirements designed to safeguard the integrity of elections, especially the following three items:

They failed to achieve the accuracy rating criterion of 99.9995 percent set up by the Comelec itself.

They were not able to detect previously downloaded results at various canvassing or consolidation levels and to prevent these from being inputted again.

They were unable to print the statutorily required audit trails of the count/canvass at different levels without any loss of data.”[14]

The Motion has not at all demonstrated that these technical requirements have been addressed from the time our Decision was issued up to now.  In fact, Comelec is merely asking for leave to use the machines, without mentioning any specific manner in which the foregoing requirements have been satisfactorily met.

Equally important, we stressed in our Decision that “[n]othing was said or done about the software — the deficiencies as to detection and prevention of downloading and entering previously downloaded data, as well as the capability to print an audit trail.  No matter how many times the machines were tested and retested, if nothing was done about the programming defects and deficiencies, the same danger of massive electoral fraud remains.”[15]

Other than vaguely claiming that its four so-called “experts” have “unanimously confirmed that the software development which the Comelec undertook, [was] in line with the internationally accepted standards (ISO/IEC 12207) [for] software life cycle processes,” the present Motion has not shown that the alleged “software development” was indeed extant and capable of addressing the “programming defects and deficiencies” pointed out by this Court.

At bottom, the proposed use of the ACMs would subject the ARMM elections to the same dangers of massive electoral fraud that would have been inflicted by the projected automation of the 2004 national elections.

Motion Inadequate and Vague

Fourth, assuming arguendo that the foregoing formidable legal, financial and technical obstacles could be overcome or set aside, still, the Motion cannot be granted because it is vague; it does not contain enough details to enable this Court to act appropriately.

The sham nature of the Motion is evident from the following considerations.  While Comelec asserts a pressing need for the ACMs to be used in the ARMM elections, strangely enough, it has not bothered  to  determine  the  number  of  units  that  will  be  required for the purpose, much less tried to justify such quantification.  It contracted for a total of 1,991 ACMs, intended for use throughout the entire country during the 2004 elections.  Are we to believe that all 1,991 units would be utilized to count and canvass the votes cast in the ARMM elections?  Such a scenario is highly unlikely, even ridiculous.

A genuine, bona fide proposal for the utilization of the ACMs would naturally have included a well-thought-out plan of action, indicating the number of units to be deployed, places of utilization, number of operators and other personnel required, methods/periods of deployment and recovery or retrieval, assessments of costs and risks involved in implementing the proposal, and concomitant justifications, among other things.  Now, either “The Plan” is being kept absolutely top secret, or it is completely nonexistent.

Furthermore, once the ACMs are deployed and utilized, they will no longer be in the same condition as when they were first delivered to Comelec.  In fact, it is quite probable that by the time election day comes around, some of the machines would have been mishandled and damaged, maybe even beyond repair.  What steps has the poll body taken to make certain that such eventualities, if not altogether preventable, can at least be minimized so as to ensure the eventual return of the ACMs and the full recovery of the payments made for them?  A scrutiny of the 4-page Motion[16] ends in futility.  It is all too clear that a failure or inability of Comelec to return the machines sans damage would most assuredly be cited as a ground to refuse the refund of the moneys paid.  Yet, if Comelec has given any thought at all to this or any other contingency, such fact has certainly not been made evident to us.

ARMM Elections Not Jeopardized by Nonuse of ACMs

Fifth, there is no basis for the claim that unless the subject ACMs are used, the ARMM elections would not be held.

At the outset, if such elections are not held, the blame must be laid squarely at the doorstep of Comelec.  To stress, had it not gravely abused its discretion, the automation of the vote counting and canvassing processes would have already become a reality over a year ago, and the ACMs that would have been used in the 2004 national elections would now be available for the ARMM elections.

In any event, the Commission in its Motion argues that the government, given its present fiscal difficulties, has no available funds to finance the automation of the ARMM elections.  Without even asking under what authority it has assumed the role of Treasury spokesman, we emphasize that there would not now be any lack of funds for election automation had it not improvidently turned over P1 billion of taxpayers’ moneys to Mega Pacific’s bank accounts.

Nevertheless, had the poll body been honestly and genuinely intent on implementing automated counting and canvassing for the ARMM elections, it ought to have informed Congress of the non-availability of the subject ACMs due to our Decisions and of the need for special appropriations, instead of wasting this Court’s time on its unmeritorious Motion.  In fact, if only it had taken proper heed of our Decision of January 13, 2004, it could have conducted an above-board public bidding for the supply of acceptable ACMs.

Certainly, this option or course of action was not foreclosed by our Decision.  Moreover, there was sufficient time within which to conduct the public bidding process.  RA 9333, which set the second Monday of August 2005 (August 8, 2005) as the date of the ARMM elections, was enacted on September 21, 2004.  Undoubtedly, Comelec was made aware of the proposed date of the ARMM elections way before the passage of RA 9333.  Thus, the poll body had about ten (10) months at the very least (between the end of September 2004, when RA 9333 came into force and effect, and August 8, 2005) to lobby Congress, properly conduct a public bidding, award the appropriate contracts, deliver and test the new machines, and make final preparations for the election.

Even assuming that a new public bidding for ACMs was not a viable option, still, Comelec has had more than sufficient lead time — about ten months counted from the end of September 2004 until August 8, 2005 — to prepare for manual counting and canvassing in the ARMM elections.  It publicly declared, sometime in late January 2004, that notwithstanding our Decision nullifying the Mega Pacific Contract, it would still be able to implement such manualization for the May 10, 2004 national elections.  It made this declaration even though it had a mere three months or so to set up the mechanics.  In this present instance involving elections on a much smaller scale, it will definitely be able to implement manual processes if it wants to.

There is therefore absolutely no basis for any apprehension that the ARMM elections would not push through simply because the present Motion cannot pass muster.  More to the point, it would be ridiculous to regard the grant of permission to use the subject ACMs as the conditio sine qua non for the holding of the ARMM elections.

What is most odious is the resort to the present Motion seeking the use of the subject ACMs despite the availability of viable alternative courses of action[17] that will not tend to disturb or render this Court’s final Decision ineffectual.  Thus, the present Motion is wholly unnecessary and unwarranted.  Upon it, however has Comelec pinned all its hopes, instead of focusing on what the poll body can and ought to do under the circumstances.  The consequences of granting its lamentable Motion, we repeat, will indubitably subvert and thwart the Decision of this Court in the instant case.

Equally reprehensible is the attempt of the Commission to pass the onus of its mismanagement problems on to this Court.  For instance, the Motion quotes the cost of storage of the ACMs in its Maxilite Warehouse at P329,355.26 per month or P3,979,460.24 per annum.  Assuming for the nonce that the machines have to be held in storage pending the decision in the civil case (as it would simply not do to throw the machines out into the streets), why must it assume the cost of storage?  Per our Decision, the machines are to be returned to Mega Pacific.  If it refuses to accept them back, it does not follow that Comelec must pick up the tab.  Instead of further wasting the taxpayers’ money, it can simply send the bill to Mega Pacific for collection.

It would be entirely improper, bordering on unmitigated contempt of court, for the Commission to try to pass on the problem to this Court through its Motion.

No Actual Case or Controversy

Finally, the Motion presents no actual justiciable case or controversy over which this Court can exercise its judicial authority.  It is well-established in this jurisdiction that “x x x for a court to exercise its power of adjudication, there must be an actual case or controversy — one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice.  x x x [C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging.”[18]  The controversy must be justiciable — definite and concrete, touching on the legal relations of parties having adverse legal interests.[19]  In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other; that is, it must concern a real and not a merely theoretical question or issue.[20]  There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.[21]

A perusal of the present Motion will readily reveal the utter absence of a live case before us, involving a clash of legal rights or opposing legal claims.  At best, it is merely a request for an advisory opinion, which this Court has no jurisdiction to grant.[22]

The High Court had occasion to put on record the declarations of the Office of the Solicitor General that:

in compliance with this Court’s directive for it to “take measures to protect the government and vindicate public interest from the ill effects of the illegal disbursements of public funds made by reason of the void [Comelec] Resolution and Contract,” it filed on behalf of the Republic on July 7, 2004, an Answer with Counterclaim in Civil Case No. 04-346.  The OSG prayed for the return of all payments made by Comelec to Mega Pacific under the void Contract, amounting to P1,048,828,407.

The OSG also manifests that it received a copy of the Complaint-Affidavit dated September 15, 2004, filed with the Office of the Ombudsman by the Bantay Katarungan Foundation and the Kilosbayan Foundation against the Comelec commissioners who had awarded the Contract for the ACMs; and the private individuals involved, including the incorporators and officers of Mega Pacific eSolutions, Inc.  This Complaint-Affidavit was for violation of the Anti-Plunder Law (RA 7030), the Anti-Graft and Corrupt Practices Act (RA 3019 as amended), and the Code of Conduct and Ethical Standards for Public Officials and Employees (RA 6713).

The complainants alleged immense kickbacks and horrendous overpricing involved in the purchase of the 1,991 ACMs.  Based on the OSG’s available records, it appears that Comelec withdrew from Land Bank P1.03 billion, but actually paid Mega Pacific only P550.81 million.  Furthermore, commercial invoices and bank applications for documentary credits reveal that each ACM cost only P276,650.00, but that Comelec agreed to pay Mega Pacific P430,394.17 per unit — or a differential of P153,744.17 per unit or an aggregate differential of P306.10 million.  Moreover, Mega Pacific charged P83.924 million for value-added taxes (VAT) and P81.024 million more for customs duties and brokerage fees, when in fact — under the nullified Contract — it was supposed to be exempt from VAT, customs duties and brokerage fees.  Lastly, Comelec agreed to peg the ACM price at the exchange rate of P58 to $1, when the exchange rate was P55 to $1 at the time of the bidding, resulting in additional losses for the government amounting to about P30 million.

The OSG hews to the view that the automation of elections, if properly carried out, is a desirable objective, but is mindful of the need for mutual restitution by the parties as a result of the final Decision nullifying the Contract for the ACMs.  Nevertheless, in apparent response to Comelec’s clamor to use the ACMs in the ARMM elections, the OSG manifests that it has no objection to the proposal to use the machines, provided however that (1) Comelec should show with reasonable certainty that the hardware and software of the ACMs can be effectively used for the intended purpose; (2) Mega Pacific should be made to return to the Republic at least a substantial portion of the overprice they charged for the purchase of the ACMs; and (3) the use of these machines, if authorized by this Court, should be without prejudice to the prosecution of the related criminal cases pending before the Office of the Ombudsman (OMB) (emphasis ours)

and the Ombudsman who was investigating the criminal aspect of the voided gargantuan transaction:

manifested that as a result of the nullification of the Contract, various fact-finding investigations had been conducted, and criminal and administrative charges filed before it against the persons who appeared to be responsible  for  the  anomalous  Contract;  and  that  the  various cases had been consolidated, and preliminary investigation  conducted in respect of the non-impeachable Comelec officials and                co-conspirators/private individuals.  Furthermore, the OMB is in the process of determining whether a verified impeachment complaint may be filed against the poll body’s impeachable officials concerned.

A Supplemental Complaint prepared and filed by the Field Investigation Office of the Ombudsman reveals that the ACMs were overpriced by about P162,000.00 per unit; that, additionally, Mega Pacific unduly benefited by including VAT and import duties amounting to P194.60 million in its bid price for the ACMs, despite Section 8 of RA 8436 exempting such equipment from taxes and duties; that Comelec nonetheless awarded the Contract to Mega Pacific at the same bid price of P1.249 billion, inclusive of VAT, import duties and so on; and that the Commission allowed Mega Pacific to peg the ACM price using an exchange rate of P58 to $1 instead of P53 to $1, which further inflated Mega Pacific’s windfall.

The foregoing notwithstanding, the OMB had allegedly prepared a comment on the present Motion, stating its position on the issue of utilizing the ACMs, but upon further reflection decided not to file that comment.  It came to the conclusion that ventilating its position on the matter might engender certain impressions that it had already resolved factual and/or legal issues closely intertwined with the elements of the offenses charged in the criminal and administrative cases pending before it.  “For one, utilizing illegally procured goods or the intentional non-return thereof to the supplier may have a bearing on the determination of evident bad faith or manifest partiality, an essential element in any prosecution under the anti-graft law, and may, at the same time, be constitutive of misconduct penalized under relevant disciplinary laws.”

Consequently, out of prudential considerations, the OMB prayed to be excused from commenting on the merits of the present Motion, to avoid any perception of prejudgment, bias or partiality on its part, in connection with the criminal and administrative cases pending before it (emphasis ours).

Had the COMELEC been under the control and supervision of the Supreme Court, the latter would have dismissed the Commissioners, including their Chairman, on the basis of res ipsa loquitor.

All told, there is a missing P2.5B from this transaction. The total releases from the office of the President were P3B as placed on record in the original decision of the Supreme Court on January 13, 2004. From the manifestations of the OSG and the Ombudsman, what was released was about P500M only in payment of the 1,991 automated counting machines which were even overpriced by about P153,744.17 each! Somebody is patting himself at his back, congratulated no end by his boss for being such a genius, and grinning from ear to ear to the nearest bank. The dim-witted opposition was put one over.

It was a set up, pure and simple.

We were milked dry by about P2.5B from a transaction doomed from the start. Was it a fund raising effort in anticipation of the May, 2004 elections?

The opposition was, by reason of the novelty of election counting, caught flatfooted when the COMELEC advanced the filing of candidacy. It was a clear clever ploy of fragmenting the opposition, and paralyzing its funders, who had no sufficient time of convening itself in search of a viable presidential candidate.

Some well-meaning jurists in the Supreme Court, Chief Justice Hilario Davide and the ponente, Justice Artemio Panganiban, were unwittingly used, together with the administration’s appointed bunch, in voiding the patently illegal contract with MEGA PACIFIC eSOLUTIONS, INC. and MEGA PACIFIC CONSORTIUM.

Upon the nullification of the automation, COMELEC reverted to manual counting. Commissioner Virgilio Garcillano’s role came in assuring the one million margin.

The rest is history.



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