Manila Bulletin - Elections and divorce

22 August 2017

By Dean Art Brion | Manila Bulletin 

Some may find my title for today’s column to be unusual – elections and divorce – and may ask: Are these topics related so that they are discussed together in one article?

You can be sure they are not unrelated; in the Philippines’ unusual political and legal world, stranger things have happened. Today’s topics cannot but be related as the chairman of the Commission on Elections has been denounced by his wife for, among others, dubious and irregular activities committed while he was holding public office.

Dispute over money, not unexpectedly, appears to be the immediate cause of the denunciation: she says he is holding substantial sums in multiple accounts in several branches of a provincial development bank and these funds came from “commissions” he received while in office; he says these are family-owned funds as his family is rich. At the core of the dispute is how these funds shall be shared between the spouses, now separated from one another, apparently without hope of ever getting together again. From these wide-angle perspectives, the topics of elections and divorce interconnect as I will further discuss below.

Because the chairman has occupied very critical positions in government – as head of the PCGG and now of the Commission on Elections – allegations of his wrongdoings in these positions carry very substantial ripple effects. Prominently mentioned in the denunciation is a law firm with substantial dealings with the PCGG; among its clients, too, is Smartmatic, the major contractor in implementing the country’s automated elections in the last three national elections (2010, 2013, and the most recent, 2016).

The situation from the election end is murky as all three elections were attended by irregularities imputed on either or both the automation contractor and the Comelec.

In both the 2010 and 2013 elections, Comelec ignored all calls from political parties and computer industry experts for a review of the “source code” to allow verification of the integrity of the software used in these elections. The Comelec did not also require the use of digital signatures, rendering it impossible to digitally authenticate the actual source of the returns that were transmitted to the central canvassing and tallying computers. Chairman Bautista, of course, was not yet the head of the Comelec then.

The 2016 election, which Chairman Bautista handled as Comelec chairman, did not fare any better as irregularities likewise intervened without satisfactory responses from the Comelec.

Before the elections, the Comelec central server was hacked by outsiders, thus compromising the integrity of the list of voters. Also, an election contest is now pending between the elected Vice President and her opponent, where the alleged irregularities included the intervention by a high-ranking official of Smartmatic, who introduced a change in the program’s hash code – a matter that the Smartmatic official could not do on his own but which the Comelec did not consider serious enough to merit a thorough and in-depth investigation.

These incidents are particularly worrisome if read against the backdrop of the currently on-going dispute in the US regarding its recent elections. Even with American advanced technology, allegations of Russian hacking of the election process have openly been made, and now hog the headlines.

Could there have been other hackings of the Comelec system in 2016 that the experts failed to detect, resulting in the selective corruption of the election results? Was the Smartmatic official’s admitted change of the Spanish “n” a simple and harmless correction, or was it a camouflage for something more sinister?

Laymen like me do not know the answer, but even the experts themselves may not know for certain and only have their suspicions as computer viruses, by their nature, do not display themselves; only an in-depth audit by the Comelec could have disclosed the real story but none appeared to have been done. Now, only a forensic investigation ordered by the Supreme Court in the vice presidential protest case can tell us what really happened in 2016.

I ask these questions as I cannot forget last year’s documentary Zero Days which showed how the Iranian efforts at producing high-grade fissionable materials were thwarted using the computer virus Stuxnet. The documentary did not categorically state who actually perpetrated the computer invasion, but was frank enough to admit that it must have been a state actor or one with the capability of a state actor in light of the nature and sophistication of the virus launched. The documentary also came to the conclusion, in the way that our own experts openly admit, that there is no computer system so secure that it cannot be hacked.

Shouldn’t our officials now be worried about the possibility that our future elections could be hacked, in the way it had been hacked by an amateur in 2016, or by some state actors or drug cartel who, for reasons of their own, want to sow confusion into the country to render us unstable and malleable to their wishes?

Rather than focus on the potential culpability of Chairman Bautista or on the Bautista spouses’ allegations and counter-allegations about their property dispute, shouldn’t Congress focus on higher interest concerns like our elections so it can inform itself on what the country needs and should do in the next election that is now fast approaching?

If indeed Congress wants to act in a manner that would provide relief to the Bautista spouses who, from all appearances, are beyond the point of reconciliation, one of the moves they can undertake is to fast-track the bill on divorce (a law that the greater majority of our populace are now waiting for) to allow the Bautistas a ready forum where they can resolve their marital and property relations.

Currently, the most that our countrymen can pin their hopes on (aside from the traditional actions for the declaration of nullity or the voiding of marriage), is an annulment of marriage through Article 36 of the Family Code. An Article 36 annulment, however, is far from easy to achieve, nor is it expeditious to secure; it does not also come cheap.

Article 36 relies for its ground on “psychological incapacity,” a ground that the framers of the Family Code borrowed from the Church. Even the Supreme Court, however, has had seesawing views on how Article 36 is to be applied as “psychological incapacity” is a new ground that is conceptually different from the traditional grounds for the outright declaration of the nullity or the voiding of a marriage.

In applying psychological incapacity, the court’s views range from the strict guidelines the court provided under Republic v. Molina (which hews closely to the Church’s views), to the flexible and case-to-case approach that some justices have adopted starting with Ngo-Te v. Yu-Te, following the intent of the framers of the Family Code. To be sure, the simplification that a divorce law will bring to the present complicated process will be a boon to all couples now permanently and irreversively separated from each other with hardly any hope of joining another partner in matrimony.

If Congress would only keep an open mind and take another look at whether we should still fully automate our elections, and if it would only fast-track the bill on divorce, then the Bautista spouses’ public airing of their private lives would have served a useful purpose.

As things are right now, all I can see is a very “interesting” dispute that personally involves lawyers – both currently named and yet to be named – many of them from the big leagues. With legal eagles personally at play, it is not remote that the weapon of “attack, confuse, and delay” would be put to good use, rendering the outcome hard to predict. The only prediction I can make under these circumstances is the benefit that will surely accrue to the nation in terms of the long-running true-to-life entertainment that the dispute or “scandal” shall provide.