THE camp of former Sen. Ferdinand R. Marcos Jr. on Sunday assailed the decision of the Commission on Elections (Comelec) to release to Smartmatic the 1,356 vote-counting machines (VCMs) that were not used during the elections.
In an 11-page urgent manifestation and motion filed before the Supreme Court (SC), Marcos through his counsel, George Garcia, argued it is the SC sitting as the Presidential Electoral Tribunal (PET), and not the Comelec, has the sole authority to decide on the release of VCMs to Smartmatic.
Marcos branded the Comelec’s move as a blatant violation of the Precautionary Protective Order (PPO) issued by the High Tribunal in order to preserve all election materials and equipment used in the May elections.
Garcia said should the Comelec proceed with the release of the VCMs on October 26, 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 lies solely with the PET, which has jurisdiction over all issues relating to the conduct of the vice presidential elections.
“Protestant Marcos respectfully submits that the Comelec cannot release the subject VCMs as the determination of whether they were used in the May 9 elections and are, thus, covered by the PPO, is solely within the jurisdiction of this Honorable Tribunal,” the manifestation and motion read.
Garcia said based on the Comelec’s letter dated September 27, the Comelec made a unilateral determination that the subject VCMs are not within the scope of the PPO.
He also raised doubt on the assurances given by the Comelec 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 said.
Thus, 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 May 9 elections,” he stated.
The Comelec, through its Commissioner Christian Robert Lim, had earlier written 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.
Subsequently, Comelec Executive Director Jose Tolentino conducted a briefing at the their warehouse in Santa 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 October 26, 2016.