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The Manila Times - Smartmatic’s ‘Trojan horse’ has hostaged 2019 elections

News & Interviews
9 October 2018

By Atty. Dodo Dulay | The Manila Times

THE election season for the May 13, 2019 national and local elections is set to open this Thursday with the filing of the certificates of candidacy of aspiring politicos. Although the 2019 elections are still seven months away, many people are worried that the Commission on Elections (Comelec) may not have enough time to resolve the issues hounding its alliance with Smartmatic, and rightly so after the controversial exposé of former Biliran representative and clean elections advocate, lawyer Glenn Chong.

For the past three elections since 2010, the Venezuelan-owned (or so they say) Smartmatic has been the Comelec’s provider-of-choice for vote-counting machines (VCMs) and technical support despite the foreign company being linked to several election irregularities and anomalies.

I’m actually surprised why Comelec chose Smartmatic in the first place since it was not the owner but a mere licensee of the precinct count optical scan (PCOS) voting system that it sold to the Philippines for the 2010 elections. This much was admitted by Smartmatic in its lawsuit against the owner of a patented voting technology, Dominion Voting Systems, a Toronto-based company, which cancelled the license it gave to the Venezuelan-based service provider due to an alleged breach of contract. How a simple sales agent managed to bag a P13-billion deal with Comelec is beyond me.

And because Smartmatic only had a license to use Dominion’s proprietary voting system, the lawsuit resulted in poll watchdogs and political parties failing to conduct a thorough review of the source code for the 2013 elections, as required by the Automated Election System (AES) law, after Dominion refused to release the so-called “master blueprint” of the PCOS machines until a mere four days before election day.

Unfortunately, Smartmatic’s monopoly over Philippine elections was perpetuated by PNoy-appointed officials when then acting Comelec chairman Christian Robert Lim awarded the supply contract for the vote counting machines (VCMs) to be used in the May 2019 midterm elections to Smartmatic, three weeks before his scheduled retirement on February 2, 2018, without the benefit of any bidding or public notice.

Comelec spokesman James Jimenez justified the contract award saying that it was not really a renewal but an “activation of the option to purchase (OTP)” the PCOS machines. Apparently, the decision to exercise the OTP was made by the Comelec en banc in a minute (or unsigned) resolution during a meeting held on December 18, 2017. That minute resolution remains unpublished until now.

Whatever excuse Jimenez may come up with, what cannot be denied is that Lim and his PNoy-appointed colleagues tied the hands of the incoming commissioners and effectively hostaged the May 2019 midterm elections to Smartmatic, ironically during the term of President Duterte. If this isn’t treason, I don’t know what is.

The PNoy-appointed Comelec commissioners legitimized the supply contract for the 2019 midterm elections to the Venezuelan-based firm by exploiting the “considered sold” stipulation in its 2016 lease contract with Smartmatic.

Unknown to many, the lease contract contained a “Trojan horse” provision that forces Comelec to exercise its option to purchase (OTP) the PCOS machines from Smartmatic, and which reads as follows: “6.9 All goods still in the possession of Comelec as of 01 December 2016 because of any election protest or audit requirement shall be considered sold to Comelec pursuant to its option to purchase under this contract, and the Comelec shall pay the corresponding price in accordance with the financial proposal within ten (10) working days from receipt by Comelec of the invoice from the provider covering said goods, without prejudice to Comelec requiring the protestant to shoulder the costs.”

Aside from being grossly disadvantageous to the government, the OTP clause would compel Comelec to pay Smartmatic an additional P2.08 billion plus, which incidentally, is not too far off from the P2.21-billion approved by the Comelec en banc last December 2017. Tumaas pa!

The PNoy appointees obviously knew Comelec would have to exercise the lease contract’s OTP clause for the 2019 elections when they purposely kept the PCOS machines in storage at their warehouse in Laguna and made no effort to surrender it to Smartmatic before December 1, 2016. To my mind, this constitutes gross negligence at best, and at worst, a treacherous and premeditated act to pawn the upcoming elections to Smartmatic.

The Smartmatic deal poses another problem for Comelec — the reliability and efficiency of the PCOS machines leased for the 2016 election. Like any electronic appliance, VCMs require regular maintenance every year even if they are not being used. Since the PCOS machines remained unused and without power for more than two years now, they all have to be inspected and repaired or refurbished in order to return them to good working condition. And who will most likely profit from this new undertaking? Yes, you guessed it —Smartmatic! Smart talaga.

Given the public distrust of Smartmatic’s voting system, Comelec should also fully implement Republic Act 10367, or the Mandatory Biometrics Registration Act of 2013, by rolling out a voter verification system (VVS) for the 2019 midterm elections, such as electronic fingerprint scanners to validate the identity of voters before they are given paper ballots. This was supposed to have been done during the 2016 elections but was shelved at the last minute supposedly at the behest of the PNoy administration.

If the poll body is to restore public confidence in the electoral process, the newly reconstituted Comelec should cancel the Venezuelan company’s supply contract for the May 2019 polls and award it to another service provider. I’m sure there are other qualified VCM suppliers other than Smartmatic. There’s enough time to procure a new voting system provider but Comelec must act with dispatch if it decides to do the right thing.

A democratic election to be credible must not only be fair and clean but must also be seen to be fair and clean. This will not happen if Smartmatic remains the technology provider in the May 2019 elections.