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SC junks senator’s plea to recover ₧3.3-million electoral protest fee

Supreme Court

THE Supreme Court  has junked the plea of Sen. Francis Tolentino to recover the P3.3-million payment he made with the Senate Electoral Tribunal (SET) in connection with the election protest case he filed in 2016 against Sen. Leila de Lima.

In a 21-page decision penned by Associate Justice Jhosep Lopez, the SC affirmed the resolutions issued by SET in 2019 denying Tolentino’s petition.

Tolentino was directed to pay the amount as a condition for the grant of his request to preserve the equipment related to his election protest that initially consisted of 45 vote counting machines (VCMs) and six consolidated canvassing system (CCS) laptops, and later on added additional 106 VCMs and SD cards.

However, on October 3, 2018, Tolentino filed a motion for return of payments because despite paying the sum, he never enjoyed ownership of the said machines and equipment.

He noted the equipment remained in the custody of the Commission on Elections  (Comelec) and he could not even access them without the poll body’s permission.

The senator also sought to declare as invalid and unconstitutional Section 6.9 of the AES contracts between the Comelec and Smartmatic-TIM.

He insinuated that Section 6.9 of the AES Contracts constitutes an obstruction to the free access of litigants engaged in an election case as it imposes a retention cost, which is equivalent to the cost of the machines and equipment.

He postulated that this requirement is financially cumbersome to litigants and also discriminatory.

In addition, he argued that Section 6.9 of the AES is unconstitutional as it supposedly bestows upon the Comelec the sole discretion whether or not he should shoulder the costs.

The SET junked Tolentino’s motion on February 21, 2019.

In ruling against Tolentino, the Court found no merit to his argument that by paying the retention costs, which is equivalent to the entire cost of the election machines and equipment; he became the owner of said equipment.

The Court noted that the payments made by the petitioner did not cover the full cost of the election machines and equipment. 

“Rather, it is only a portion of the purchase price paid by the Comelec in the form of a lease or rental fee. This is precisely the ruling of the SET when it clarified that the amount deposited by petitioner pertains to the retention cost or rental fee,” the Court explained.

“In tum, the retention cost is only a part of the full cost of the machines and equipment needed by the Comelec to pay Smartmatic-TIM under the option to purchase clause of the contract,” it added.

Furthermore, the SC said, the deposits made by the petition can no longer be returned since the Comelec already paid these to Smartmatic-TIM.

Likewise, the SC said the SET correctly ruled that it has no jurisdiction to pass upon the issue on the validity and constitutionality of Section 6.9 of the AES.

The authority of the SET, according to the SC, is limited to matters affecting the validity of the protestant’s title.

“Thus, any issue concerning the contract between the Comelec and Smartmatic-TIM is beyond the jurisdiction and constitutional mandate of the SET,” the ruling stated.

“To rule otherwise is to overstretch if not to go astray from the interpretation of the SET’s constitutional grant of jurisdiction as the sole judge of all contests relating to the elections, returns, and qualifications of the members of the Senate,” it added.

The Court noted that the petitioner should have directly filed a petition seeking nullity of Section 6.9 of the AES before the regular courts, instead of raising the issue of his election protest before the SET.

“Had the SET passed upon this issue, it would have acted beyond its authority as to constitute grave abuse of discretion amounting to lack or excess of jurisdiction,” the SC said.

Tolentino filed the protest after he lost to de Lima who got the 12th spot in the senatorial race during the 2016 national and local elections. 30

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