Smartmatic row with Dominion



Smartmatic: Row with contractor won’t affect 2013 polls
The Philippine Star
MANILA, Philippines - Smartmatic International Corp. yesterday assured Filipino voters that its dispute with sub-contractor Dominion Voting Systems International Corp. would not affect the country’s midterm elections in 2013.
“Our guarantee to the Philippines is that our lawsuit against one of our sub-contractors has no impact on the development of the elections. We are on track and I want to reassure the public that this won’t have any impact on the elections,” said Smartmatic president for Asia Pacific Cesar Flores.
Smartmatic and Dominion have a worldwide licensing agreement to use the latter’s software, hardware, firmware and technical support to run Smartmatic’s precinct count optical scan (PCOS) machines, including those purchased by the Commission on Elections (Comelec) for the midterm polls next year.
But in September, Smartmatic sued Dominion before the Delaware Chancery Court in Florida, accusing the latter of terminating the contract.
According to Flores, Smartmatic could still use Dominion’s technology while the case is still pending and they are very confident of winning the case in the end.
“The contract is between Smartmatic and Comelec. And it’s Smartmatic who guarantees the Comelec access to the technology, to the upgrades and to the source code which will be available for the political parties to review,” he said.

He added Smartmatic is “fully capable of providing the Comelec with the enhancements and technology” that they need and they will “not be interrupted” in 2013.
“In fact, there are currently about 40 enhancements delivered (by us) and are being certified as we speak in the United States by the certification agency,” Flores said.
He said the enhancements the Comelec wanted introduced in the PCOS machines are “just cosmetic changes in the operations.”
Flores, however, refused to identify them in deference to Comelec.
“Our assurance is that Comelec will have a fully working technology with the enhancements that they have required. And that the source code will be available for review, all the legal reviews that are included in Republic Act 9369 (the poll automation law),” he added. 

Options to Stop Political Dynasty



Options to stop political dynasties

“The state shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law,” so the Constitution (Art. II, Sec. 26) solemnly declares. Despite repeated clamor, this provision of our Charter, like its many other “principles and state policies,” remains unimplemented to this day. How then can this provision be enforced and political dynasties ended, or at least regulated? There are four possible options: legislative, judicial (and quasi-judicial), sovereign and political. 

Legislative action. The “no-brainer” option is for Congress to enact a law defining what a political dynasty is, what offices (elective and nonelective) are covered, who may enforce the prohibition, and other details. While some senators and congressmen have perfunctorily filed bills covering these topics, not one has been seriously deliberated upon. To my knowledge, no such bills have been reported for second reading in the Senate or the House of Representatives. 

Realistically, such measures cannot be expected to be approved at this time. After all, many legislators have relatives—parents, children, siblings, and even grandparents—who serve simultaneously in Congress and in other offices. 

Tired of waiting for congressional action during the last 25 years, some citizens have filed judicial petitions to compel the Commission on Elections to enforce the constitutional prohibition by denying due course to certificates of candidacies of close relatives. 

Judicial and quasi-judicial actions. However, I think these petitions are legally untenable because the Comelec cannot legislate. Note that the Constitution prohibits political dynasties, “as may be defined by law.” True, the Comelec has the power to issue rules and regulations. However, such rules merely implement statutes. Without a law defining political dynasties, implementing rules have no leg to stand on. 

How about a judicial petition for mandamus to compel legislative action? I am afraid such recourse would also be iffy because courts can command the execution only of a purely ministerial act, which jurisprudence defines as “a simple, definite duty… a precise act accurately marked out… If the law imposes a duty but gives the officer [upon whom it is imposed] the right to decide how or when it shall be performed, the duty is discretionary and not ministerial.” 

Under this test, I doubt that courts will direct Congress to pass an enabling law since the duty is not clearly defined and precisely marked out. 

Obviously, the constitutional ban on dynasties is not “self-executing,” unlike, for instance, the term limits on congressmen (three consecutive terms) and senators (two consecutive terms). Here, the courts and the Comelec can disqualify candidates using the bare, but clear, certain and specific constitutional limits without need of an enabling law. Otherwise stated, unlike the dynasty ban, term limits are self-executory. 

Sovereign action. Probably frustrated by legislative inaction, Comelec Chair Sixto Brillantes Jr. promised to start a people’s initiative for an antidynasty law. Now, this is very novel. No law in our country has been approved via a people’s initiative. 

However, there had been two unsuccessful attempts to change our Constitution via this process. In Lambino vs Comelec (Oct. 25, 2006), the Supreme Court struck down a people’s initiative to convert our presidential system to parliamentary on the ground, among others, that an initiative can be used only for simple and easy-to-comprehend matters, not for changing “basic principles, or several provisions” which “a deliberative body with recorded proceedings is best suited to undertake.” 

Although this ruling involved Charter change, I believe that, by analogy, the same reason stopping a Charter revision can be used to restrain a people’s initiative for an antidynasty law. Being controversial, such a proposed law will need a deliberative body in which the proposal can, to borrow the language of the Lambino decision, be “drafted, defined, articulated, discussed and agreed upon in a mature and democratic debate.” 

Political action. The fourth option, political action, may be the most doable under the present circumstances. Simply stated, let the people decide by voting down candidates who belong to the same family. Those who believe in this proposition can form political movements like the “Kamag-anak sa Politika Aayawan Lahat,” or “Kapal.” 

Others may use television, radio, newspapers, Internet and social media like Facebook and Twitter. US President Barack Obama effectively used the social media in his reelection bid. His young campaign organizers penetrated the voting population so systematically and so effectively, converting what was predicted to be a close poll into a one-sided Electoral College triumph.

If indeed our people want to stop members of political dynasties from occupying government positions simultaneously, they can demonstrate their will in the 2013 elections by voting down the “magkakamag-anak.” Should such a message be evident in the elections, I am sure relatives in other branches of government will also be foiled. 

Let the 2013 elections then be a sort of referendum on the issue. Let the people speak loudly through their ballots. Let the antidynasty advocates take this challenge. And if they win, the new Congress will surely heed the people’s mandate by promptly enacting a law defining and banning political dynasties. 

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Comments to chiefjusticepanganiban@hotmail. com

COMELEC CITIZENS' ARM

COMELEC accredits ONE VOTE MOVEMENT

Aside from PPCRV, NAMFREL, on January 25, 2013 the Commission on Elections accredited One Vote Movement as additional Comelec Citizens’ Arm.

Resolution SPP No. 12-204 provides that the following are the duties and responsibilities of One Vote in coordination and cooperation with the other duly accredited- citizens' arm and subject to the limitations as may be provided by the Commission:

1.       It may conduct poll watching in various precincts;
2.    It may provide assistance to the voters on election day most especially to the senior citizens, persons with disabilities, pregnant women; detainees, indigenous peoples and
other members of the vulnerable sectors; and,
3.  It may assist the Commission in voters' information and education drives in every municipality, city and provinces most especially in far-flung areas and to sectors which experience inaccessibility in getting information from the Commission.

In coordination and cooperation with the duly accredited citizens' arm and subject to such conditions as this Commission may impose, the Commission undertakes the following:

1.  Furnish One Vote Movement the electronic copies of the following (i) the computerized
Voter's List; and (ii) Project of Precincts for the effective discharge of its responsibility.
2. Allow One Vote Movement to witness the examination and testing of the equipment or device to be used in the voting and counting on the day of the electoral exercise before voting starts as provided by Section 10 of RA 8436, as amended by Section 12 of RA 9369.
3. Authorize One Vote Movement to undertake a widespread stakeholder education and training program to educate the public and fully inform the electorate about the automated election system provided that the modules to be used in these undertakings should first be approved by the Education and Information Department (EID) .of this Commission.
4.    Provide a copy of the following to One Vote Movement: (i) permanent list of voters per precinct in each city and/or municipality consisting of all registered voters residing within the territorial jurisdiction of every precinct indicated by the precinct maps; (ii) the
national central file under the custody of the Commission consisting of third copies of all
approved voter registration records; (iii) list of deactivated, reactivated and/or cancelled
voters.

The ONE VOTE MOVEMENT as citizens' arm is hereby GRANTED, subject to the following conditions:

1.     That it shall be subject to the direct and immediate control and supervision and shall comply with all the lawful orders of the Commission in the performance of its specific functions and activities provided by law, and such other functions;
2.      That it is not supporting any candidate, political party, organization, or coalition of political parties;
3.    That it shall strictly remain non-partisan and impartial during the registration and election periods.
4.    That it is not supported by or under the influence of any foreign government or any of its agencies or instrumentalities, or from any foreigner, whether natural or juridical person;
5.   That it shall not solicit or receive, directly or indirectly, any contribution or aid of whatever form or nature from' any foreign government, or any of its agencies or instrumentalities, or from any foreigner, whether natural or juridical persons; .
6.  That it does not seek to achieve its objectives, goals or programs through violence or other unlawful means, nor aim to propagate any ideology opposed to the principles of a republican and democratic government;
7.   That it undertakes to police its ranks and prevent infiltration by persons or group of persons who may, directly or indirectly, destroy its character of nonpartisanship and impartiality;
8.     That it shall submit to the Commission a list of its responsible officials and other officers
constituting its boards and there shall be no changes therein without the approval of the Commission;
9. That it shall make available to the Commission its personnel, facilities, equipment, papers and effects and coordinate its activity with other accredited citizens' arm of the Commission;
10.That it shall submit a written report of its activities/operations and its observation of the
May 13, 2013 elections within one (l) month after said elections;
11. That the Commission may delegate other duties and responsibilities as it may deem necessary; and,
12.That this accreditation shall be deemed automatically revoked in case it violates any of the conditions herein set forth.




The Commission on Elections (COMELEC) in a resolution, granted accreditation to the Parish Pastoral Council for Responsible Voting (PPCRV) as citizens’ arm of the Commission in connection with the May 13, 2013 National and Local Elections.
In Resolution SPP No. 12-197, the COMELEC said the PPCRV has “established its track record as one of the Commission’s staunch allies in ensuring clean, orderly, peaceful and honest elections.”
“The Commission recognizes PPCRV as one of the organizations which has established its membership and structure all over the Philippines and has demonstrated its capacity to promote public interest,” it said.
As a result of its accreditation, the PPCRV, has the following duties:
·         To conduct poll watching in various precincts
·         To provide assistance to the voters on election day most especially to the senior citizens; persons with disabilities; pregnant women; detainees; indigenous peoples and other members of the vulnerable sectors
·         To assist the Commission in voters’ information and education drives in every municipality, city and provinces most especially in far-flung areas and to sectors which experience inaccessibility in getting information from the Commission.
On the other hand, the COMELEC is duty-bound to furnish the PPCRV with the electronic copies of the Computerized Voters List and the Project of Precincts for the effective discharge of its responsibility. The Fourth (4th) copy of the Election Returns printed by the PCOS Machine prior to transmission for the conduct of an unofficial count shall also be furnished to the PPCRV.
In its Petition for Accreditation, the PPCRV stated that it has a “mass based constituency composed of individuals of voting age and registered voters, with operating chapters based in the various parishes in provinces, cities and municipalities throughout the country, which carry out all orders, instructions and/or directives promulgated by the PPCRV’s National Executive Board (NEB). The Council’s membership has grown in number as shown in the 2010 Automated National and Local Elections where 657,000 PPCRV members and volunteers from 3,333 parishes nationwide participated in poll watching and election related activities.” 



Political Dynasty



POLITICAL DYNASTY

From a constitutional perspective, it is true that it is no longer necessary to debate whether or not political dynasty are evil per se or whether it is a reform-oriented, or known for public service. It doesn’t matter anymore.

The 1987 Constitution provides that “The State shall guarantee equal access to opportunities for public service and prohibit political dynasties as maybe defined by law….”

To realize this Constitutional provision an enabling law or implementing law is necessary. But for almost 25 years of existence of the 1987 Constitution no implementing law was ever passed by the Congress (legislative) defining the banning of political dynasties. What the Constitution requires is the lawful definition of “political dynasty”.

The response of the legislature with the Constitutional provision is comprehensible. It is because the present membership of the Congress –Senate and House– say so, whom many belongs to political dynasty, which will unlikely allow to act and pass an enabling law to the said Constitutional provision that will affect them directly? Forbidding their family to serve the country?

Now, what will be some of the remedial measures to solve the problem? Republic Act No. 6735, the law on peoples’ initiative and referendum offers a lawful solution. Another is a people’s movement, campaign or crusade for anti-political dynasty.

Meaning, in the absence of the implementing law or that there is no enabling law to be administered by the Commission on Elections, the only remaining option is for the people to unite against the political dynasty. Peoples’ Power? Political Dynasty versus Peoples Power! Naahhh….

In election it is a matter of choice! Can't the voters make use of their right of choice to resolve the problem on the issue of political dynasty whom primarily they are the one directly at fault of tolerating political dynasty in their own turfs. Nobody is to be blamed for this political issue but the voters themselves and the unprincipled resourceful politicians!