The Manila Times – Time to change the automated election law

By Nelson Celis | The Manila Times

Part 8

AFTER some of us have probably pondered on how the existing Project Management Office (PMO) would oversee the technical evaluation committee (TEC) activities with regard to the successful completion of the audit, especially of the security controls of the AES software as provided for in Sec. 11.2 of RA 9369, the hearing on April 8 of the technical working group (TWG) of the joint congressional oversight committee (JCOC) on the Automated Election System (AES), or TWG-JCOC for short, revealed that there was lax or no close coordination between the PMO and the TEC in 2016, and even in the forthcoming midterm elections on May 13, 2019.

Before anything else, the TWG-JCOC was created by the JCOC this year; no such sub-committee ever existed since the AES implementation in 2010. Its main mission is to validate the revelations made by Senate President Tito Sotto 3rd in privilege speeches delivered on March 6 and 14, 2018 concerning alleged fraud in the 2016 elections. Sotto’s investigation then focused on the early transmission of election results on the day before the elections, May 8, 2016, until the early morning of May 9, 2016 at about 1:12 a.m.; the sudden utilization of undisclosed queuing servers on May 10 to 11; the establishment of seven regional hubs of the Comelec; and the failure to electronically transmit 3.86 percent of election results representing at least 1.7 million votes. Hence, the creation of TWG-JCOC.

Hearing all the presentations in the TWG-JCOC hearing, the body concluded that the early transmissions of the vote counting machines (VCMs) based on the audit logs investigated, actually happened through the triangulation of the findings done by the TEC’s chairman, engineer Peter Banzon of the Department of Science and Technology, former Rep. Glenn Chong, Dr. Pablo Manalastas and former Smartmatic operations officer Jeff Dy. Incidentally, Dy worked closely with Smartmatic’s Marlon Garcia in the 2016 AES operations. Surprised about Dy’s presence in the TWG-JCOC?

In his presentation, Dy cited that Comelec had Resolution 10057 stating that the board of election inspectors (BEIs) should not initiate transmission of results during the final testing and sealing (FTS). But why did the Comelec in the past JCOC hearings in 2018 say that the early transmissions were part of the FTS? Sotto even said last year: “The standard answer of Smartmatic would be that these transmissions are only testing transmissions. These transmissions cannot be, in any way, claimed as testing transmissions. Because as far as I can remember, the last official testing was made on April 23, 2016.” Sotto added that this testing that Smartmatic claimed could not be considered as part of the FTS as the poll body’s rules stated that such FTS should have been conducted from May 2 to 6. But why would there be transmissions on May 8 and early morning of May 9? Who authorized the early transmissions? Unfortunately, Comelec has not answered this since March 2018! And there’s just one month to go before the midterm elections on May 13. Thus, the privilege speech of Sotto regarding early transmission was proven in this regard. As to the other details of early transmission, like transmission logs from telcos, it was mentioned that said logs had already been erased by the telcos!

The early transmission case is PMO’s accountability. It should have placed security controls that should have prevented it. Though the TEC might have overlooked the audit and certification of these controls, the PMO could have consulted the Comelec’s Advisory Council, the accredited citizens’ arms and watchdogs. Nonetheless, the political parties and candidates would have even extended their arms to help.

Based also on the audit logs analyzed, Dy expounded that an unknown computer or queuing server intercepted transmissions between the VCM and the consolidation and canvassing system (CCS). He said that the CCS was not receiving the election returns (ERs) directly from its assigned VCMs but was instead getting the ERs from the said queuing server. AES Watch noted that the normal transmission should have followed the procedures taken in 2010 and 2013; that is, the VCMs or PCOS machines were transmitting ERs directly to the CCS, or from the precinct to the municipal board of canvassing without any intervention in between. In 2016, the queuing server was hidden from the public and have not passed through the usual source code review. Further, AES Watch noted that Dy’s explanation coincided with what Marlon Garcia uttered during the clarificatory hearing at the Manila City Prosecutor’s Office. Garcia admitted that there existed a “meet me room” infrastructure where several undeclared queuing servers were located. Therefore, Sotto’s second issue about the undisclosed queuing servers has been proven right!

Another critical point discussed in the TWG-JCOC was the conduct of the local source code review. Many unresolved issues have not been addressed by Comelec to date. These issues were even formalized through a letter that has not been replied to for two weeks now. The TEC was even asked as to when the TEC would release its certification as it has been delayed since February 13 and that the elections for Overseas Absentee Voting will be happening on April 15. Where’s the PMO? Is the PMO on top of the source code review?

The body also took cognizance of the fact that the audit log files do not have proper time stamps and there appeared suspicious file names too. Is the PMO aware of this? At least, the TEC was honest enough to tell the body that it was not part of their TEC certification scope. If it was not part then, did the PMO require it in the first place? Anyhow, the body agreed that proper system logging be observed. As also required by the AES law, the TEC was asked about the continuity plan, they replied that they will submit the same to Comelec soon.

Dy elaborated on other findings in his report submitted to the body. His complete report presented to the body is titled “Report to the technical working group of the joint congressional oversight committee on the automated election system investigating the conduct of the 2016 elections in relation to the privilege speech of Senate President Vicente “Tito” C. Sotto 3rd.” It may be viewed or downloaded from The Manila Times website at https://www.manilatimes.net/wp-content/uploads/2019/04/TWG-Report-JCOC-March18_jeff.pdf.

If his allegations are proven true after due investigation, Sotto stated last year that he would consider such alleged irregularities as a case of electoral sabotage of the 2016 elections. Yet, the TWG-JCOC will come up with its final investigation report to the JCOC in two weeks’ time; that’s before the next JCOC hearing on the week of April 22. What could be the verdict?

Though the TWG-JCOC is not even stipulated in the AES Law, or RA 9369, this initiative is something that the public should applaud. Had the TWG-JCOC existed even before the ARMM elections in 2008, all anomalies that transpired in the past three national and local elections could have been resolved quickly, cases submitted in the Ombudsman and Supreme Court could have been minimized, and that the implementing rules and regulations of RA 9369 could have been drafted.

To end this series, it is inevitable that the AES Law must be amended by the next JCOC leadership. AES Watch, Namfrel and other election watchdogs believe that a composite or hybrid system would be the best election system for 2022. We should learn from our tons of mistakes and noncompliances in the past, and a lot will still be committed in next month’s elections. In hindsight, the draft federal constitution pertaining to the “public nature of elections” (i.e., public counting) as stipulated in Article V, Section 2.b, is a good sign of the constitutional committee’s appreciation of the findings I presented to them. It provides that, “The Federal Republic shall guarantee the public nature of elections, ensure full transparency and accessibility of the electoral process, and the verifiability and integrity of the electoral results, regardless of the mode of election.”

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