'Smartmatic-TIM partnership violates Anti-Dummy Law'


Posted at Jul 09 2009 11:56 AM | Updated as of Jul 10 2009 02:00 AM

A citizens group on Thursday said it plans to question before the Supreme Court the P7.2-billion poll automation project between the Commission on Elections (Comelec) and the Smartmatic-TIM consortium due to the consortium's alleged violation of the Anti-Dummy Law.

Lawyer Harry Roque of the Concerned Citizens Movement said the group will file a temporary restraining order before the Supreme Court against the contract after Smartmatic-TIM officials admitted before the Senate that they did not follow the 60-40 constitutional rule on joint ventures. The Barbados-based Smartmatic is a foreign firm while Total Information Management Corp. (TIM) is its Filipino partner for the elections.

"They admitted before the Senate that the 60-40 sharing is only on paper and it's really 90-10 in favor of Smartmatic. That is a violation of the Anti-Dummy Law. This is really a cause of concern because we are putting our entire electoral process in the hands of foreigners," Roque told ABS-CBN.

Commonwealth Act No. 108, also known as the Anti-Dummy Law, limits the disposition, exploitation, development or utilization of natural resources and the operation of public utilities to Philippine citizens, or to corporations or associations at least 60 percent of the capital of which is owned by the Filipino citizens. The law covers ownership and management of mass media, the ownership, control and administration of educational institutions, and the control of the governing body of entities engaged in commercial telecommunications.

Roque said the Smartmatic-TIM consortium failed to completely disclose in the joint venture agreement the details and conditions of their partnership, particularly the issue of who has more control and power over the consortium's funds.

The lawyer said their strongest evidence is the "irreconcilable differences" cited by Filipino partner TIM during its cool off with Smartmatic. The fight over the control of the consortium's funds almost derailed the Comelec's automation project before the two groups patched things up last week.

Comelec chairman Jose Melo earlier said the poll body initially sought an exemption from the 60-40 percent requirement for those who will bid in the P11.2 billion automation project. But the poll body failed to get the exemption from the Department of Finance.

Aside from the Anti-Dummy Law violation, Roque said the poll automation contract also violates provisions of Republic Act 9369 or the Automated Election System Law since the Precinct Count Optical Scan-Optical Mark Reader (PCOS-OMR) technology remains untested.

He said Smartmatic used direct recording electronic (DRE) machines to partially automate the elections in the Autonomous Region in Muslim Mindanao last year.

"Our automation law states that there should be a pilot test first before automated elections become national in scope. The ARMM elections should not be seen as a pilot test because Smartmatic used a different technology for that," Roque said.

Roque said he is all for automating the elections as long as it follows the law. "If automation would be used as a tool for cheating or make people lose confidence in the elections, we should look at partial automation as an alternative."

He added: "The law states that we can do partial automation. We can give Smartmatic some key cities and towns to automate and if they do well, then let's go national."