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The Manila Times - Our elections since 2010 all violated the law

News & Interviews
24 January 2019

By Antonio P. Contreras | The Manila Times

THERE is an elephant in the room that many do not want to call out, name, talk about and even recognize. It is because in conceding its existence, there could not be any other conclusion than to admit that our elections since we started to automate them all violated the law.

We are a country that is at present existing on the biggest lie of all. The assumption that the fundamental exercise of the very basic process that cements our social contract to bind our political community is a valid and legal one is now virtually in tatters.

We are supposed to be a representative democracy. As sovereign, even if power emanates from us, we no longer directly participate in governing, but entrust this to a representative government composed of people that we choose in presumably fair, honest and credible elections. These elections are supposed to be conducted under rules and procedures defined by law.

In 1997, Republic Act (RA) 8436 established the automated election system (AES). To ensure free, honest, and credible elections, the law clearly provided for five minimum election safeguards, all of which were violated by the Commission on Elections (Comelec) and its chosen AES service provider, Smartmatic. These five include the conduct of a source code review, the requirement of a digital signature, the issuance of a voter receipt, the mandatory use of ultraviolet marks on ballots, and the conduct of a random manual audit.

What we saw was a procession of acts where Comelec and Smartmatic virtually rendered the conduct of the 2010, 2013 and 2016 elections as pure and unadulterated violations of RA 8436.

To prevent fraud from being incorporated into the software, a source code review was mandated to be conducted. The law prescribed three important requisites for the review: that the review must cover all the vital AES components, that it must be made before the elections and that it must be comprehensive and not restrictive. This was not followed. In 2010, there was no review conducted, as admitted by Comelec itself. In 2013, an incomplete review was conducted but only after the elections and not before as required by law. And in 2016, the review that was conducted was not comprehensive, as it was restricted with Smartmatic denying the reviewers access to the critical portions of the source code.

The law was also strict on the digital signature requirement. No candidate will be proclaimed unless all three members of the Board of Election Inspectors (BEIs) have affixed their digital signatures on the electronic election results before its transmission. In 2010, the Comelec unilaterally ignored this important requirement of the law when it issued Resolution 8786 directing the BEIs not to digitally sign the electronic elections results. This was repeated in 2013, when Resolution 9640 was issued by the Comelec directing the BEIs once again not to digitally sign the electronic election results. In 2016, the requirement for the BEIs to affix their digital signatures were not satisfactorily complied with because the Comelec deemed the requirement fulfilled even if only one member of the BEIs affixed his or her signature. At a hearing of the joint congressional oversight committee (JCOC) on the AES, resource persons reported cases where only the chairman of the BEI affixed a signature, while there were there are incomplete signatures in others.

The law also required that voters must each be given a receipt to be able to verify that their votes were correctly read and counted. In 2010 and 2013 the Comelec disabled this mandatory feature. It was only in 2016 upon the order of the Supreme Court that the voter receipts were issued, but only after Comelec removed all the security and evidentiary features, such as the precinct number and the ballot number, virtually rendering the voter receipts as useless pieces of paper. Furthermore, in 2016 Comelec altered the protective counter feature where there is a separate counter of votes and counter of ballots by removing the latter.

It was also required by law that the physical ballot should have necessary safeguards, such as ultraviolet marks and bar codes, to prevent fake ballots from being used. In 2010, Smartmatic supplied the wrong ink which the machines were not able to detect. In the 2013 midterm elections and the 2016 presidential elections, the Comelec said that the ballot verification feature was working but there was no proof of technology that it was even implemented.

Finally, RA 8436 made it mandatory that a random manual audit be conducted in at least one precinct per congressional district, and such should be conducted on the night of the election. Resolution 8837 specified the manner the random manual audit would be conducted. The rule that was approved was that the precincts to be audited manually would be randomly selected at noon on election day at the Comelec Operations Center. This rule was not followed in 2010.

Resolution 9595 issued by Comelec in 2013 and Resolution 10078 issued in 2016 changed the procedure in that the random manual audit would now be conducted no later than four days before election day. This was in violation of the intent and spirit of the law. Random manual audits are conducted to provide a quick assessment of the accuracy of the vote counting machines, and to detect discrepancies. This is why these were supposed to be conducted in precincts that would be known only on election day, and that these were to be audited only during election night to deny election manipulators information that they could use to avoid getting caught.

During a Senate hearing on the AES, Sen. Richard Gordon loudly proclaimed that there was prima facie cheating when election laws were blatantly violated. What we have is a shocking reality where all the five minimum safeguards provided by law to ensure fair, honest and credible elections were were violated not only through sheer negligence, but even by willful intent to disregard the law, and which was done even with audacity that they could even be expressed through Comelec resolutions.

The Comelec is not above the law. Even if it is a constitutional body tasked to promulgate implementing rules and regulations, it can only do so under the ambit of the law passed by Congress. It has no power to negate the intent of RA 8436.

There is so much hatred and vitriol flowing in our political landscape. But it seems these are focused on other issues. Our President is so consumed with his quarrel with the Catholic Church, while social media is in a feeding frenzy with opposing sides devouring each other in squabbles, both partisan and petty.

Yet there is very little anger over the fact that our elections were conducted not in accordance with the law. We have public officials who were chosen in elections that for all intents and purposes, are void ab initio. The biggest crime against democracy was perpetrated against us. And it happened not only once, not twice, but thrice. And many of us seem not to care at all.