Manila Standard Today - More on the ‘Comeleak’ exposé

24 January 2017

By Victor Avecilla | Manila Standard Today

It’s about time that Andres Bautista, the Commission on Elections chairman, is held to account for anomalies committed by the poll body during his watch.

In March 2016, the Comelec data bank was hacked by outsiders in a data breach that compromised almost 77 million voter registration records, including voters’ full names, addresses, passport entries, birthdates, and other personal information.  Observers call this anomaly the biggest breach of a government-controlled data base.

This scandal was brought to the attention of the National Privacy Commission which, after a thorough investigation, found that the wholesale data breach was the result of Bautista’s gross negligence as contemplated in Republic Act No. 10173, otherwise known as the Data Privacy Act of 2012.

In addition, the privacy commission recommended the criminal prosecution of Bautista for his gross negligence. It was reported in the news media that the evidence against Bautista had been turned over by the privacy commission to the Department of Justice.

Bautista played down this recent irregularity by claiming that he merely relied on the advice and recommendations of information technology experts in matters which were beyond the scope of his expertise.

What hogwash! If the excuse offered by Bautista is to be sustained, then public interest will be compromised wholesale. Following the Bautista excuse, all that the head of an administrative or quasi-judicial body similar to the Comelec will need to do, to escape criminal liability, is to hire so-called “advisers” (paid at taxpayers’ expense) and claim that he merely followed their “advice” in a matter beyond his expertise. Good grief!

Despite its status as a constitutional commission, the Comelec is still a government body and its top official is still subject to public accountability. This means that at the end of the day, the Comelec chairman must own up to “Comeleak.” Although the Constitution provides that the Comelec chairman may be removed from office only by impeachment, there is no legal impediment to an investigation of the wrongdoing attributable to him.

In other words, Bautista must answer for “Comeleak,” and if his alleged “advisers” really exist, then those advisers ought to be prosecuted as well. After all, these advisers are not in the Constitution’s list of officials removal only by impeachment. If these officials are not Comelec officials, but they received compensation from the Comelec anyway, jurisprudence posits that they can still be subject to criminal prosecution.

Evidently, not only must Bautista face the music; He must identify those “advisers” whose advice and recommendation triggered him to let “Comeleak” happen.

The problem does not end there.

Since millions of voters lost their private data to hackers, they are entitled to seek damages against Bautista and his cabal. A class suit and some complaints in intervention against them should teach the Comelec and other government agencies which handle confidential data obtained from private citizens to be more prudent in handling such information.

So far, the government is on the defensive on issues relating to privacy rights. Just recently, the Supreme Court upheld the right of a law firm to fair play regarding the privacy of its bank accounts, despite the law against money laundering.

The foregoing pronouncement of the Supreme Court and the recent findings of the privacy commission against Bautista are tell-tale warnings to some telecommunications companies which share the mobile phone numbers of their subscribers to business enterprises who text unsolicited promotional materials to those numbers. Requests from subsribers for a halt to this irritating practice are summarily ignored by management. Perhaps the requests will now be entertained in the light of these recent developments in the legal realm.

Bautista has taken a dismissive attitude towards “Comeleak” in the same way that he summarily ignores serious complaints regarding the Comelec’s blatant disregard of both the election laws and the rules of elementary fairness.

For example, Bautista has not provided a satisfactory explanation as to why the Comelec billeted several foreign executives of Smartmatic (the foreign service provider of the automated counting machines used in the May 2016 polls) at the Novotel Hotel at the Araneta Center in Cubao, Quezon City days before and during the actual canvass of the elections. This is a serious issue because Novotel is owned by the family of Mar Roxas, who was then running for president under the pro-Aquino administration Liberal Party (LP), and moreso because the LP national campaign headquarters are located at Novotel.

Other questions linger.

Who paid for the Novotel expenses of the foreign Smartmatic executives? If Bautista’s Comelec paid for it, was this expenditure of taxpayer money subjected to public bidding as required by law?

The Comelec mouthpiece says that the foreign Smartmatic executives were to assist in the actual election. How is this possible when the Constitution prohibits aliens from interfering in Philippine elections?

Since the nerve center of the national canvass was located at the Philippine International Convention Center in Pasay City, why weren’t these foreign Smartmatic executives billeted at any of the numerous hotels near the PICC? Sofitel is just beside the PICC. Novotel is far off in Cubao, Quezon City.

Remember the news story which revealed that several voting machines were kept at Novotel prior to election day and on the election day itself? Although Bautista went to the hotel to supposedly investigate the incident, Novotel management merely allowed him to inspect a few hotel rooms pre-selected by the hotel management, and kept many other rooms uninspected. After his sloppy investigation, Bautista paid no further attention to this irregularity.

Recently, the Comelec hinted that it failed to obtain sufficient funds for the recount of the votes in the election protest filed by vice presidential candidate Ferdinand “Bongbong” Marcos Jr. before the Supreme Court sitting as the Presidential Electoral Tribunal. Perhaps Bautista intends to use the administrative incompetence of his agency as a possible ground to dismiss the Marcos election protest. If that is so, another explanation from him is due.