By Nelson Celis | The Manila Times
EPISODE IV (2011-2013). Why was Smartmatic’s automated election system (AES) in the 2010 elections defective? Because Smartmatic simply told the truth before the Delaware’s Court of Chancery that their AES solution was defective. It was a case filed by Smartmatic against Dominion, its partner which was the real owner of the PCOS technology (read Part 1), based on the three major grounds related to the latter’s breach of agreement between them: 1) “failing to deliver fully functional technology for use in the 2010 Philippines national election” (that’s why the PCOS machines were not counting properly!); 2) “failing to provide timely technical support during and after the Philippines election” (that’s why defects were not resolved!!); and 3) “failing to place in escrow the required source code, hardware design, and manufacturing information” (that’s why Smartmatic did not comply with the AES law or RA 9369!!!). It was like a lovers’ quarrel when two people in love get into an intense argument due to unreconcilable unmet expectations…then part ways! It all started when Dominion was claiming that Smartmatic owed them $10 million for the use of their technology in the 2010 polls to the point of canceling their 2009 license agreement with the former; hence, the legal battle.
But what surprised AES Watch was the intervention of former Comelec Chairman Brillantes when he, on behalf of the Commission on Elections (Comelec), offered to place $10 million in an escrow account and proposed that whoever wins in the Delaware case would get the money. Brillantes’ desperate proposal was to have the source code released by Dominion. However, at the time, the deadline to have it certified by the SLI Global Solutions on February 13, 2013, had already passed. The law prescribes that the source code be certified three months before the elections, May 13, 2013. Thus, that unsolicited and indecent proposal was useless anyhow as the Comelec had already violated the law.
At this point, Brillantes could have already stopped the use of the PCOS machines and reverted to manual elections rather than risk the country’s using an uncertified AES; that is, a computerized system with unknown reliability, security, accuracy, and transparency. He should have known that the Comelec had repeatedly violated the law in not having a certified AES in 2008 and 2010.His inutile proposal paved the way for committing the same mistake for the third time. But he could have considered the January 2004 decision of the Supreme Court about the use of the automated counting machines (ACMs) of MegaPacific. The SC stopped the automation of the 2004 elections as the petitioners appealed that the ACMs did not meet Comelec’s technical implementation requirements. So Comelec reverted to manual elections in 2004 and they were ready then as part of their contingency plan.
Unfortunately, the joint congressional oversight committee (JCOC) on AES was so silent about this critical point of the project. The JCOC did not intervene and had not checked on what the Comelec had been doing.
Though not compliant with the law already, Brillantes, together with Smartmatic and Dominion, held a presscon on May 9, 2013, four days before the 2013 elections. He presented a CD containing the source code and announced that its review may be started. Huh! Impossible! How can you do the source code review in four days? It should take at least six months before the February 13 deadline, or Comelec should have started August 13, 2012 at the latest. Besides the PCOS machines were already deployed and had undergone final testing and sealing. How can you change the PCOS program if the source code review failed? Would Brillantes do the same as what former Chairman Melo did when Comelec recalled all 76,000 CF cards a week before the 2010 elections due to inaccurate counting of votes (read Episode III)? Brillantes was fooling us Filipinos that the Smartmatic’s AES was suitable for use in our elections by just showing the CD. He was like a clown performing a magic disappearing act in a kiddie party. AES Watch said then that it was too late, but Brillantes insisted that it was the best that the Comelec could do given the situation. It appears that he was playing innocent about the law but “ignorance of the law excuses no one.”
Senatorial bet Richard Gordon then filed a petition with the SC to defer the elections due to the absence of a source code review. But lo and behold, the 2013 elections pushed through on May 13. As in the 2010 elections, Comelec did not comply with RA 9369—there was no source code review; the election results were not digitally signed; the PCOS machines didn’t generate voter-verified paper audit trail or voter’s receipt; and, the success rate of transmitting the elections results was only 76 percent, much lesser than the 90 percent of 2010. What happened to the 24 percent, or around 13 million votes, that were not transmitted? Worst, the election results nationwide showed a 60-30-10 pattern; that is 60 percent for LP, 30 percent for UNA and 10 percent for the rest!