The Manila Times - What legal basis are you referring to, Comelec?

12 June 2019

By Nelson Celis | The Manila Times

THIS question is being tossed at the Commission on Elections (Comelec) with regard to its response to President Rodrigo Duterte’s call to get rid of Smartmatic during his visit to Japan on May 30. Comelec, being an independent constitutional body, stated that it would review and check if there are legal grounds to ban Smartmatic. While Comelec is studying its legal basis, President Duterte reiterated his call on June 6 in Davao City at a post-Eid’l Fitr celebration: “Ang sinabi ko naman dyan sa Smartmatic, even if there is just one vote that is wasted hindi maganda ‘yan. Sabi ko maghanap kayo ng bago na walang palpak ni isang boto!”

Recently, the Center for People Empowerment in Governance (CenPEG), the steering head of the AES Watch discussed the highlights of the last hearing of the 17th Congress’ joint congressional oversight committee (JCOC) on the automated election system (AES) on June 4, 2019 vis-à-vis the Comelec’s possible legal basis for banning Smartmatic. No brainer, the CenPEG said, as Smartmatic had violated the AES law, or RA 9369, since it automated the national and local elections in 2010, notwithstanding its primary role as one of the service providers in 2008 ARMM elections. CenPEG referred to AES Watch’s System Transparency, Accountability and Readiness (STAR) scorecard that Comelec could use as legal basis. The details of the STAR card showing the major violations of Smartmatic was published at, titled “2019 elections assessment: Worst!” But of course, the STAR card would also point to Comelec’s negligence as it allowed Smartmatic not to comply with the AES law.

Let us quickly review why Comelec should not study anymore all the possible legal bases to save Smartmatic as the provider of AES in the 2022 presidential elections, to wit:

— In the 2008 ARMM elections, because of loose systemic and procedural controls, there was an incident report—but not investigated—when Smartmatic was able to change election results in the computer server remotely.

— In 2009, Smartmatic failed to comply with the request for proposal (RFP)/bidding process for the lease of PCOS machines for the 2010 elections: 1) Smartmatic failed in their demonstration during the BAC evaluation of suppliers’ eligibility; 2) Smartmatic failed to comply with the digital signing requirements of the RFP (i.e., Section 30 of AES law — authentication of electronically transmitted election results in conformance with the e-Commerce law, or RA 8792 ), and instead implemented i-Button of PCOS machine to make it appear as a substitute for board of election inspectors digital signatures but none for the board of canvassers of the municipalities, provincials and national; 3) Smartmatic misrepresented itself when in fact the PCOS technology is actually owned by a Canadian firm, Dominion Voting System (DVS), and the ISO 9000 certification belonged to Jarltech, a Taiwanese firm; 4) About the 99.995 percent accuracy rating, the mock elections only showed that the PCOS machines had only 97 percent accuracy; 5) The actual accuracy rating of the PCOS machines during the final testing and sealing on May 3, 2010 was 0.000 percent resulting in the retrieval of 76,000 compact flash cards. Bottom line, the Government Procurement Reform Act (GPRA), or RA 9184, was violated, the Comelec Advisory Council (CAC) did not recommend Smartmatic to be used in 2013 elections onward and Smartmatic should have been made accountable.

— In 2012, the Government Procurement Policy Board (GPPB) stated in its letter to Comelec dated March 12, 2012 that the option to purchase (OTP) the PCOS machines in 2012 was already illegal as the OTP offer of Smartmatic ended already on Dec. 31, 2010. That means, new AES bidding for the 2013 elections should have ensued in 2012. This scenario happened again when the Comelec signed the OTP of 2016 vote counting machines (VCMs) on Jan. 8, 2018 when in fact Smartmatic’s OTP offer expired already in May 2017. These are all GPRA violations as per GPPB. Even the CAC, headed by the Department of Information and Communications Technology, recommended not to exercise the OTP of the 2010 PCOS machines and 2016 VCMs. What the CAC pushed to the Comelec in 2017 was the use of mixed technologies to do away with the dominance of Smartmatic. Nonetheless, the Comelec was able to deceive the Supreme Court in 2012 to be allowed acquire the defective machines by invoking their favorite line “There’s no more time” and simply didn’t mind the CAC.

— Need more legal basis! There was a legal battle between Smartmatic and DVS. The former told the truth before Delaware’s Court of Chancery when it sued the latter for the software error in 2010 based on the three major grounds: 1) failing to deliver fully functional technology for use in the 2010 Philippine national election; 2) failing to provide timely technical support during and after the Philippine election; and 3) failing to place in escrow the required source code, hardware design, and manufacturing information.

— Here’s one comedy of errors that AES Watch could not forget. (Comelec chairman) Brillantes, together with Smartmatic and Dominion, held a presscon on May 9, 2013, four days before the 2013 elections. He presented a CD containing the source code and announced that its review might be started. This was a violation of the AES law as the source code review should have been certified three months before the elections.

— The PCOS machines in 2010 and 2013 elections didn’t generate the voter verified paper audit trail, or voter’s receipt, as mandated by law. Comelec contended in an oral argument weeks before the 2016 elections in the Supreme Court that the ballots were already considered as the receipts! But the Supreme Court ruled otherwise, that’s why we had voter’s receipts in 2016 and 2019.

— There was no investigation initiated regarding the 60-30-10 phenomenon in the 2013 elections though Brillantes promised to do so. However, such similar problem in 2019 of no variability in the election results is currently being studied by the AES Watch scholars.

— After the 2013 elections, the technical evaluation committee (TEC), headed by the Department of Science and Technology, reported in 2013 that out of 11 machines, 7 were found to have digital lines over the ovals of the decrypted ballot images that virtually added votes to those candidates affected.

— In 2015, Comelec violated again the GPRA when it directly negotiated with Smartmatic for the refurbishment of 82,000 PCOS machines for use in 2016 elections. The contract was signed by Brillantes on January 30, three days before his retirement in February. His reasons were: 1) no more time; and 2) Smartmatic argued that they were the only one with the sole authority to refurbish the PCOS machines. The Comelec’s legal department chief opined that the repair should undergo public bidding based on the provisions of GPRA. Consequently, AES Watch and the Integrated Bar of the Philippines petitioned this violation to the Supreme Court and won. Furious at the legal department chief for her candidness, Brillantes transferred the righteous chief to another department!

— For the 2016 elections, there were no SCRs conducted for the undisclosed queuing servers, regional hubs, and transparency server to the public. There is no legal basis for having these AES components in place as nothing is mentioned in the AES law, not even the long-awaited pending Implementing Rules and Regulations (IRR).

— On the night of the 2016 election, Marlon Garcia of Smartmatic replaced the “?” characters in the names of candidates with “ñ” in the script of the transparency server at the time when the leading vice presidential candidate had a 1-million lead against his closest rival. There was no Comelec authorization for such a move of Garcia and he was charged with violating the Cybercrime Prevention Act of 2012, or RA 10175. During a court hearing, Garcia admitted that there existed a “meet me room” infrastructure where several undeclared queuing servers were located. Garcia explained that the election results from the CCS servers were not transmitted directly to the transparency server. Rather, the queuing servers initially did the consolidation processing before sending the results to the transparency server. Garcia’s revelation is an operational irregularity and there is no legal basis in the AES law for such implementation.

— In two privilege speeches in March 2018, Sen. Tito Sotto cited several irregularities that occurred during the 2016 elections. Two of which happened as confirmed in the presentations of an ex-Smartmatic official during the last JCOC hearing — early transmissions and the queuing servers in the meet me room.

Going back to Comelec’s response to President Duterte’s call to get rid of Smartmatic, they don’t need to review as there are so many legal grounds for banning Smartmatic as cited above. Let’s now reverse the situation. What if President Duterte were to ask Comelec if there was legal basis for implementing queuing servers, regional hubs, transparency server, data processing outside the country through, and use of digital machine signatures? What if he were to ask Comelec why they have been violating the AES law since 2008?