The Manila Times – Who cares about supporting transparency to win?

By Nelson Celis | The Manila Times

IN Germany, the Supreme Court ruled electronic voting as unconstitutional for its lack of transparency. Japan — the world’s leading IT country — still uses a manual system backed by an independent post-election audit. Among the key concerns in these countries is the fact that automated election or electronic voting/counting allows no transparency to the whole electoral process.

The German Federal Constitutional Court (FCC) ruled that the use of electronic voting was unconstitutional and noted that, under the constitution, elections are required to be public in nature and ‘that all essential steps of an election are subject to the possibility of public scrutiny unless other constitutional interests justify an exception…The use of voting machines which electronically record the voters’ votes and electronically ascertain the election result only meets the constitutional requirements if the essential steps of the voting and of the ascertainment of the result can be examined reliably and without any specialist knowledge of the subject…The very wide-reaching effect of possible errors of the voting machines or of deliberate electoral fraud make special precautions necessary in order to safeguard the principle of the public nature of elections.’ The ruling by the GFCC became instrumental in Germany’s reverting from automated to manual election.”

There’s something very interesting about reactions to obvious and seemingly not obvious public issues! For the former, we react quickly, even blaming vehemently those people behind the problematic causes; while for the latter, our normal response is a don’t-care attitude as we don’t really understand it and its causes.

Take for example the public uproar against the recent radio frequency identification (RFID) tagging fiasco in the North Luzon Expressway (NLEx), which was stopped by Valenzuela City Mayor Rex Gatchalian in a week’s time. It was apparently obvious that the kilometric vehicle queues at the NLEx toll gates were caused by the operator’s systemic error. To backtrack, to contain Covid-19 spread, the Department of Transportation issued Order 2020-12 four months ago, mandating the Toll Regulatory Board (TRB) to promulgate rules and regulations requiring concessionaires and operators of toll expressways to fully migrate to a cashless and contactless toll collection system in three months’ time. Hence, the given time frame triggered a rush among motorists to immediately comply as they might not be able to enter the expressways if their vehicles don’t have RFIDs. Unfortunately, the resulting fiasco was not only an eyesore; it also caused a domino of problems. This is of course an obvious public issue that was solved in record time by suspending the NLEX Corp.’s business permit. The toll operators need to learn from an ATM consortium, like BancNet, on how to implement the smooth implementation of member banks’ interconnectivity in a few months’ time only, without their depositors lining up in any ATMs nationwide — and this was in the early 1990s. Just imagine, without the Covid-19 pandemic, the use of RFIDs would have been a matter of choice and the implementation of rules and regulations would have not been rushed. Covid-19 was stimulus push to cashless toll transactions.

The seemingly not obvious public issue, on the other hand, is the transparency of our automated elections under the Republic Act 9369. Under the law, we could find the word transparent in its Section 1: “It is policy of the State to ensure free, orderly, honest, peaceful, credible and informed elections…shall involve the use of an automated election system (AES) that will ensure the secrecy and sanctity of the ballot and all election, consolidation and transmission documents on order that the process shall be transparent and credible and that the results shall be fast, accurate and reflective of the genuine will of the people.”

Do all of us 63 million registered voters understand the meaning of transparency? Do we accept that when the PCOS machines or vote counting machines (VCMs) read our ballots, it would mean transparency when in fact you did not see how they were counted? Do we accept that when the election returns are electronically transmitted by a VCM, they contain our actual votes? But…how can you ever consider the past four national and local elections transparent when all the supposed safeguards were disabled? The most profound question now is, “How can our majority of electorates react to this seemingly not obvious issue?” Ask yourselves, your family members, friends, etc.…if they really know what the real meaning of transparency in an AES is. I doubt if they can define it…or explain even the concept of safeguards.

Remember that nobody from the Congress or even from our neighborhood complained about the non-generation of voter-verified paper audit trail (VVPAT) or voter’s receipt by the PCOS machines in the 2010 and 2013 elections. Why? The VVPAT concern is a seemingly “hidden,” not an obvious public issue. Who reacted to this? Only those who really understand and raised issues about it. And they were the election watchdogs (e.g., Namfrel, CenPEG/AES Watch, etc.) that Comelec didn’t bother to entertain their valid concerns and reactions.

Did the Comelec try to listen at all? No! They proceeded without VVPAT in 2010 and 2013 because their understanding of the law was that the ballot itself is the voter’s receipt. See how they interpreted the law? Even our neighborhood would evaluate that such interpretation was obviously not correct as we are all familiar with how an ATM dispenses a receipt when we do a bank transaction. But lo and behold, weeks before the 2016 elections, Sen. Dick Gordon reacted to this seemingly not obvious public issue as he took the lead in winning the oral argument in the Supreme Court against Comelec. The high court ruled that Comelec should dispense with the voter’s receipt starting with the 2016 elections.

Why did Senator Gordon push for the VVPAT in 2016? Because he knew the law well as he was the one responsible for the passage of RA 9369 in 2007 amending the RA 8436 of 1997. And why were the election watchdogs reacting to this “hidden” issue — because most of them were members of the technical working group that helped in drafting the AES bill in 2006. To Senator Gordon and the election watchdogs, this VVPAT issue is quite obvious. But for the majority of Filipinos, this is something not registered in their minds, unseen, abstract, not easy to understand, and not even part of the lively talk in the barber shops, parlors, or community meetings — not a stimulating showbiz-like or controversial topic compared with the NLEx fiasco that almost everybody knows through news broadcasts and social media.

What about other countries like Germany? To them, transparency is a big issue, an obvious concern. Why? Because as Germany’s highest court ruled, electronic voting is unconstitutional for its lack of transparency. Automated election or electronic voting/counting allows no transparency to the whole electoral process. The German Federal Constitutional Court (GFCC) ruled that the use of electronic voting was unconstitutional and noted that, under their constitution, elections are required to be public in nature and ‘that all essential steps of an election are subject to the possibility of public scrutiny unless other constitutional interests justify an exception…The very wide-reaching effect of possible errors of the voting machines or of deliberate electoral fraud make special precautions necessary in order to safeguard the principle of the public nature of elections.’ The ruling by the GFCC became instrumental in Germany’s reverting from automated to manual.

Recently, a group of election watchdogs gathered together and deliberated on the ‘transparency matrix’ of all possible election systems to be used in 2022, including what was used in the past four elections. They discussed what system would be obvious in the eyes of the electorate.

(To be continued)

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