Legal cases of Smartmatic, Dominion may affect 2013 polls

PCOS-machine

LAWMAKERS are worried that the legal cases between Smartmatic International Corporation and Dominion Voting Systems International Corporation might adversely affect the integrity of the 2013 automated elections.

To avert such possibility, a congressional inquiry by the House Committee on Suffrage, is being sought by party-list Reps. Neri Javier Colmenares (Party-list, Bayan Muna), Luzviminda Ilagan (Party-list, Gabriela) and Antonio Tinio (Party-list, Act Teachers) through House Resolution 2849.

“The interest of the Filipino people in the legal controversy between Smartmatic and Dominion arises from the possibility that Smartmatic may have been liable for misrepresentation or fraud when it entered into a Deed of Sale with the Commission on Elections, to the prejudice of the Filipino people and the jeopardy of the upcoming automated polls next year,” Colmenares said.

Colmenares said the probe will determine whether Comelec possessed all the information regarding the “goods” it purchased –the PCOS technology—and Smartmatic’s capacity to fulfill its obligations and promises at the time when the option to purchase was exercised and during the execution of the Deed of Sale.

HR 2849 states that on September 11, 2012, Smartmatic filed with the Court of Chancery of the State of Delaware a complaint against Dominion, which complaint stemmed from the PCOS Framework License Agreement executed between the two, under which Dominion, the owner of the optical scan voting system technology, granted to Smartmatic the license to exploit said technology, including its marketing to other countries outside the United States.

The complaint alleges that Dominion failed to honor its commitments to Smartmatic and has interfered with its business of developing and providing for the automated election systems in Mongolia, Puerto Rico, and the Philippines.

The Smartmatic complaint indicates that the ownership of and full control of the PCOS technology is deeply embroiled in legal dispute and that Smartmatic has no full control over the same, so as to enable it to make the changes necessary for the technology to be fully compliant with Republic Act 9369 and other Philippine Laws, the Resolution states.

On July 2012, the Supreme Court upheld the validity and constitutionality of the purchase by the Comelec of the PCOS machines and other goods despite the palpable infirmities and defects of the PCOS machines.

“However, said SC decision was rendered without reference and information as to the legal controversy between Smartmatic and Dominion.  The Highest Court upheld the Comelec’s exercise of the option to purchase the goods but on the assumption that despite palpable infirmities and defects in the goods, Smartmatic can provide the enhancements required and requested by Comelec and Philippines laws,” Colmenares said.

As the complaint would reveal, Smartmatic has no such capacity at the time of the execution of the Deed of Sale and even until present, seven months before the 2013 elections, they added.

Furthermore, HR 2849 states that “following the allegations in the complaint, the continuing refusal of Dominion to recognize the  License Agreement obligating Dominion to provide the enhancements, improvements and modifications needed and requested by the Comelec, is detrimental to the Philippine elections, as well as renders the contract between the Comelec and Smartmatic defective.”

“This would only mean that Smartmatic could not possibly comply with the conditions set forth by Comelec in the Deed of Sale until and unless the State of Delaware rules in its favor and rule immediately,” Colmenares said.

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