Senator loses bid for refund of protest fee

The Supreme Court has turned down the bid of  Senator Francis Tolentino to reclaim the P3.3 million payment he made with the Senate Electoral Tribunal, in connection with the election protest case he filed against Senator Leila de Lima in 2016.

In a decision penned by Associate Justice Jhosep Lopez, the SC upheld the resolutions issued by SET in 2019 denying Tolentino appeal.

The  electoral tribunal had directed Tolentino to pay the amount as a condition for the granting 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 their SD cards.

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

According to him, the equipment remained in the custody of the Commission on Elections and he could not even access them without the poll body’s permission.

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

The protestant implied 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 argued that this requirement is financially cumbersome to litigants and also discriminatory.

Besides, the petitioner argued that Section 6.9  of the AES is unconstitutional  as it supposedly bestowed 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 its ruling, the high court found no merit to his  argument that by paying the retention costs, which was equivalent to the entire cost of the election machines and equipment, he became the owner of said equipment.

The high court said the payments made by 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 SC said.

“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.

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

The SC also said that 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 file a petition seeking nullity of Section 6.9 of the AES before the regular courts, instead of raising the issue  in 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.