MANILA - It will be a close vote on the case in the Supreme Court (SC) seeking to scuttle the automation of the May 10, 2010 elections.

A Supreme Court justice told abs-cbnnews.com/Newsbreak that 6 to 7 magistrates appear to be in favor of the arguments raised by UP law professor Harry Roque, one of which is that the computerization of the elections should have been pilot-tested first before embarking on nationwide implementation in next year's polls.

With the appointment of 2 justices last week to fill up the 15-man Tribunal, those who have reservations that a nationwide automation is legally defensible are in the minority.

Last week, the Palace appointed Court of Appeals Justice Mariano del Castillo and University of Santo Tomas College of Civil Law Dean Roberto Abad to the SC for the posts vacated by retired Justices Alicia Austria-Martinez and Dante Tinga.

Their appointment came after the Judicial and Bar Council (JBC) rejected an overture from the Palace to add more names to the shortlist of 6 names that the body submitted to President Arroyo.

OK for new justices?

Court observers said del Castillo and Abad are expected to vote for the validity of the nationwide automation. The voting pattern among new appointees to the Supreme Court has been in favor of the government.

Deliberation on the case is now pending in the Supreme Court after it held a marathon hearing on the oral arguments two weeks ago.

Republic Act (RA) 9369, or the amended Automation Law, required that pilot-testing be held in highly-urbanized areas and two provinces each in Luzon, Visayas and Mindanao in the national and local elections that would be held shortly after the measure’s adoption. The law was passed January 23, 2007.

The Commission on Elections (Comelec) and the Office of the Solicitor-General have argued that the law was referring to the May 2007 mid-term senatorial race. But since automation was not implemented at that time, this provision of the law has been deemed waived.

But Roque, who also represents the Concerned Citizen’s Movement, said the law was not specifically referring to the May 2007 mid-term polls. He argued that deliberations on the measure showed that lawmakers intended that partial automation be held first before it is implemented nationwide.

The Comelec has awarded the P7.2 billion contract to automate the elections to Barbados-based Smartmatic and its Filipino partner Total Information Management.

Abs-cbnNEWS.com/Newsbreak learned that Justice Presbitero Velasco has been assigned as the case writer. The source counts Velasco as among the justices who support the nationwide implementation of poll automation.

Term extension?

During the oral argument, it was raised that a massive failure of elections is not a remote possibility if nationwide implementation of automation is pushed.

One potential glitch that could lead to massive failure of elections is the fact that under an automated system, 1,630 special ballots will be printed. A minor mistake or a misalignment in the ballot printing could lead to the ballots being rejected by the machines, thus further raising the potential failure of elections.

The 1987 Constitution is silent on a failure of elections scenario after an incumbent president's six-year term expires. With no elective officials installed, there would be a leadership vacuum.

In such an event, the SC justice raised the possibility that President Arroyo may act as holdover President, and she would not have a hard time justifying her status with all SC justices since they would all be her appointees by that time. Also, it should be noted that Chief Justice Reynato Puno would have retired by that time.

Puno has shown streaks of independence from Malacañang since being appointed by President Arroyo to be chief justice. Thus, nationwide automation could be the “perfect vehicle for the extension of her term,” the justice observed.