MANILA, Philippines ? Three lawmakers are poised to petition the Supreme Court to stop the Commission on Elections (Comelec) and its poll partner, Smartmatic-TIM Corporation, from using the automated system in the May 2010 general elections.

The move came after the high tribunal ruled automation of the 2010 is legal.

Speaking in a news conference Wednesday, Cebu Representative Pablo Garcia said the Comelec and its technology partner committed ?legal and constitutional infraction? in attempting to fully automate next year?s polls.

Garcia and his co-petitioners, Representatives Hermilando Mandanas of Batangas and Antonio Cerilles of Zamboanga del Sur, will file the plea for preliminary injunction or restraining order before the Supreme Court on Thursday.

The petitioners asked the high tribunal to declare Comelec?s full automation of the May 10 election as ?unauthorized, illegal, and unconstitutional.?

They also urged the court to invalidate the bidding for the procurement of technology and machines to be used next year, saying it was ?unauthorized, illegal, null and void.?

Garcia said the Comelec failed to comply with the provisions of Republic Act 9369, or the automation law, requiring that before fully automating the elections, pilot-testing should be done first ?in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao, to be chosen by the commission.?

?It is clear ? that the authority granted to Comelec to automate election in the above-quoted section 6 of R.A. 9369 shall not operate or be executed or is restricted and qualified by the condition of the holding of the automated election in the pilot areas,? the lawmakers said in their petition.

?The most liberal and generous interpretation of said section is that because of Comelec?s failure or inaction, it is in a state of suspended animation so to speak, and the Comelec must now start its implementation by first conducting the automated election system only in the pilot areas before proceeding to full automation nationwide,? he said.

The Cebu congressman also noted that under R.A. 9525 or the P11.3 billion Supplemental Budget for the May 2010 election, a provision exists that the disbursement of funds should be subject to strict compliance of pertinent laws.

Quoting Section 2 of the law, Garcia said the ?disbursement of the amounts herein appropriated or any part thereof, shall be authorized only in strict compliance with the Constitution, the provisions of R.A. 9369 and other election laws incorporated in said Act so as to ensure the conduct of a free, orderly, clean, honest and credible election and shall adopt such measures that will guarantee transparency in the selection of relevant technology of the machines to be used in the May 10, 2010 automated national election,?

Garcia said the passage of R.A. 9369 does not guarantee that ?all elections in the country shall be automated.?

?Far from it. In fact, a reading of the law in its entirety will show that the provisions on automation would first refer to the election in the 12 pilot areas in Luzon, Visayas and Mindanao. Any further mutations or progressions of the system or the extent of its coverage in future elections should await the assessment and evaluation by the congressional oversight committee on the performance of the system adopted or used in the said 12 pilot areas . . .? Garcia said.

He said that testing or adoption of new technologies, which could have been done in the May 2007 election in the pilot areas, was not complied with.

?How can Comelec now proceed to automate the May 10, 2010 election nationwide when it is violating the very law it is supposed to implement?? he said.

Garcia said that under the Constitution, the poll body has no power to make laws or amend or repeal existing ones.

?And yet, this is exactly what Comelec is doing in directing the full automation nationwide of the May 10, 2010 election even in the absence of a law directing Comelec when and how to do it. . . . Since Comele has no power under the Constitution to amend, prepare or modify any law, the provisions of R.A. 9369, which calls for manual system of voting should be upheld and enforced,? he said.

Another constitutional infraction in a fully automated system would be the elimination of poll watchers, which the congressman said was clearly stated in Section 8, Article IX of the Constitution.

Garcia said Comelec could have a ?modified election system,? or partial automation. Under the bill he proposed, Garcia called for the amendment of RA 9369 to allow partial manual voting and counting of votes at the precinct level, with automation kicking in when the precinct results or election returns are transmitted electronically to the municipal or city level, then to the provincial or district level, up to Congress.