The Supreme Court, sitting as the Presidential Electoral Tribunal (PET), and not the Commission on Elections (COMELEC), has the sole authority to decide on the release of Vote Counting Machines (VCMs) to Smartmatic.
This was the argument raised by former Senator Ferdinand “Bongbong” R. Marcos Jr. against the COMELEC’s decision to release 1,356 VCMs to Smartmatic branding such move as a blatant violation of the Precautionary Protective Order (PPO) issued by the Tribunal and a contempt of court.
In an 11-page Urgent Manifestation and Motion, Marcos, through his counsel, George Garcia, asked the PET to stop the COMELEC from releasing the supposedly “unused” VCMs to Smartmatic on the ground that doing so would be violative of the PPO it earlier issued to preserve all election materials and equipment used in the May elections.
Garcia also said should the COMELEC proceed with the release of the VCMs on 26 October 2016, the same may be considered a contempt of court because it is a “disobedience of or resistance to a lawful order of the court” as provided under Section 3, Rule 31 of the 1997 Rules of Court.
Garcia said the act of the poll body to unilaterally declare the VCMs as “unused” is deplorable since the determination of whether they were used or not lies solely with the PET which has jurisdiction over all issues relating to the conduct of the vice presidential elections.
“Protestant Marcos respectfully submits however that COMELEC cannot release the subject VCMs as the determination of whether they were used in the 9 May 2016 elections and are thus, covered by the PPO, is solely within the jurisdiction of this Honorable Tribunal. As can be inferred from its letter dated 27 September 2016, the COMELEC made a unilateral determination that the subject VCMs are not within the scope of the PPO,” Garcia said.
He also raised doubt on the assurances given by the COMELEC that through a mere examination of the VCMs and the SD cards, they will be able to determine if they were used since there is always the possibility of switching. “Indeed, the possibility of the switching of the VCMs and SD cards cannot be ruled out,” he stressed.
For this reason, Garcia said any technical evaluation on the subject VCMs should be made under the direct supervision of the High Tribunal. “For purposes of determining the inclusion or exclusion of the subject VCMs from the PPO, protestant Marcos implores the High Tribunal to direct the technical examination of the subject VCMs, their SD cards and the system logs containing the deployment and use of the VCMs during the 9 May 2016 Elections,” he stated.
The COMELEC, through its Commissioner Christian Robert Lim, had earlier wrote PET Chairman, Chief Justice Ma. Lourdes Sereno, on their decision to grant the request of Smartmatic to release to them 1,356 VCMs that were not supposedly used during the elections.
Thereafter, COMELEC Executive Director Jose Tolentino conducted a briefing at the their warehouse in Sta. Rosa, Laguna in the presence of all the parties in the ongoing Elections Protests in the PET and the Senate Electoral Tribunal on the protocol that will be observed on the release of the VCMs on 26 October 2016.
During the said briefing, Jose Amor Amorado, another counsel of Marcos, expressed their opposition to the release of the VCMs on the ground that an approval from the PET has to be secured prior to release in the light of the PPO.
Amorado had pointed out that the VCMs scheduled to be released are covered by the PPO because they were the contingency machines that were deployed during the elections.
"These contingency machines were used during the last elections as contingency VCMs. Some of them were deployed admittedly during the earlier meetings in different areas. Some of them were left here in Sta Rosa. So because of lack of PET approval, the plan of COMELEC to return the VCM to Smartmatic is vehemently opposed," Amorado pointed out.
This is not the first time the Marcos camp questioned the COMELEC’s actions.
Last August, Marcos’ lawyers asked the COMELEC to explain why it approved the stripping of data contained in the SD cards and CCS laptop units used during the last elections. The poll body issued the assailed Order on July 12, 2016 — on the very same day that the PET resolved to issue a protection order to preserve the integrity of all election paraphernalia used in the May elections.
According to the COMELEC, the stripping activity was needed because the SD cards and VCMs were going to be used for the November 2016 barangay elections. However, the barangay elections have been postponed to next year.
Despite this, the COMELEC intends to return the VCMs to Smartmatic — a move which clearly contravenes both the spirit and the letter of the PPO issued by the PET.