Left holding the bag

Two decisions handed down this week—one by the Sandiganbayan (SB) on the Lucio Tan case (Civil Case 0005) and the other by the Supreme Court on the Commission on Elections-Smartmatic case—have very serious negative implications for the Filipino people. And, if the news reports on these are accurate, they are lousy as well.

In the Tan case, the SB said it had to acquit because there was lack of evidence. I find that the height of irony: First, the SB rejects the government’s evidence, rejects the testimony of Imelda and Bongbong that Ferdinand Marcos owned 60 percent of the Tan enterprises, rejects the testimony of Marcos’ financial counselor to the same effect, rejects the documentary evidence showing how Marcos favored Tan enterprises. And THEN says there is lack of evidence. Dear God.

The SB has done that at least one other time: It dismissed an ironclad case—literally a mountain of evidence gathered by Heidi Mendoza—against former Makati Mayor Elenita Binay.  Also for insufficient evidence. The Binay case never even went to trial.

Since I have already written in another newspaper about the Tan decision, I invite the Reader to google it, and other columns I have written on the same subject. So you can get the full flavor of how the Filipino people have been robbed of an estimated P220 billion (at least) if the decision is not reversed.

The rest of this column deals with the Supreme Court’s Comelec-Smartmatic decision, which is still not available on the tribunal’s website. As of this writing, in fact, the latest uploads are the April decisions—although a decision is supposed to be uploaded very soon after its promulgation. So I have to rely on the news reports.

I have a second caveat: As chair of the Movement for Good Governance (MGG), I am one of the plaintiffs in the case. And here I invite the Reader to go to the MGG website to read the documents that led it to support the case against Comelec-Smartmatic. Because of my participation in the case, I forbade myself from writing about it (the sub judice thing) while it was pending. I do so now, because I feel that until my side files a motion for reconsideration, there is a window for me to write about it.

President Aquino apparently had no such twinges of conscience and/or delicadeza. He spoke freely about the case before the high court’s decision was handed down and even deplored the tribunal’s slowness in deciding it—which is fine for the man on the street, but certainly not for the President, particularly one who is perceived to use every power at his command to remove a chief justice.

Even more unfortunately, which caused a great deal of teeth-gnashing on our side, he got the issue wrong. In fairness to him, he isn’t the only one, because that was precisely the media spin given out by Comelec-Smartmatic on the matter—which he (and others) seems to have swallowed hook, line and sinker.

P-Noy seems to think that the issue is between automation and manual counting, or, as he said it, between the PCOS (precinct count optical scan) machines and the manual system. And he comes down in favor of PCOS machines because of their “proven credibility” in the 2010 elections, while the manual system is “vulnerable” to manipulation by corrupt politicians and their supporters. White and Black.

Excuse me, Mr. President. We are all for automation. But automation done with the proper safeguards, because without them, high-tech cheating can and does occur—as our information technology (IT) community has pointed out time and again. The issue before the Supreme Court was never between PCOS vs. manual, although that was the (Sixto) Brillantes/Smartmatic spin (I guess the high court swallowed it, too—the false line that if the contract is not upheld, the Comelec would have to go manual because there would be no more time). The issue was between the PCOS machines supplied by Smartmatic and other PCOS machines. There are other legal issues—e.g., whether the Comelec should have bid out the contract for new PCOS machines, or whether its option to purchase Smartmatic’s PCOS machines could still be exercised (as the Comelec wanted to do).

Almost the entire IT community, and most groups that monitored the 2010 elections, reported that the Smartmatic PCOS machines were flawed (more than 200 defects), and were definitely vulnerable to cheating for lack of the safeguards mandated by law. That’s why they are against Smartmatic. And there was no “proven credibility” because the Random Manual Audit that “validated” the poll results was a sick and sorry joke.

Per reports, the Supreme Court declared that the Comelec-Smartmatic option-to-purchase contract was still valid (thus no need for bidding). Why? Because of something I never heard of before: that the Comelec had not yet returned to Smartmatic the performance security bond worth 5 percent of the contract.

But isn’t the fact that the Comelec had not yet returned the performance bond clear and convincing evidence that either Smartmatic had not performed as expected or failed to deliver the equipment per schedule? So why this passion for each other? Not to mention the letters from Smartmatic to the Comelec saying that the latter’s option to purchase had lapsed.

Again, the irony. Clearly, Smartmatic did not perform as expected, and yet this is the excuse grabbed by the high court to say the contract must still be valid.

Which leaves Filipinos holding the bag—PCOS machines that are flawed and therefore vulnerable to high-tech cheating. For shame.