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The Manila Times - Who dares put the law to work?

News & Interviews
4 November 2020

By Nelson Celis | The Manila Times

IT is a mind-boggling concern why some of the laws of the land have not been enforced properly or their corresponding implementing rules and regulations (IRR) not promulgated.

Does it mean that our lawmakers in the past had overlooked its adverse effects now or in the future? Does it mean that agencies concerned to implement the law and promulgate its IRR didn’t have a chance to plan to do it, had no topnotch lawyers in their office to support their head of agencies, or that the head of their agencies simply do not want to do it? In another angle, why do some people in our government agencies have this don’t-care attitude that has made corruption in their offices a corporate culture? What influenced them? Why were other countries able to keep corruption at the minimum, if not eliminated it, or their officials pleaded guilty or committed suicide when their “righteous” conscience told them so?

The good news is that some well-meaning government officials held public consultations in drafting IRRs. A good example of which is the IRR drafting of Republic Act (RA) 8792 or the “e-Commerce Act of 2000,” a law that is part of the Automated Election System (AES) Law, formally known as RA 8436 of 1997, as amended by RA 9369 of 2007 (i.e., Section 30, about electronic signatures). The lawmakers consulted the experts from the IT industry, legal luminaries, etc. and came out with the IRR a few months after the enactment. Lately, the public was also consulted in the IRR drafting of RA 11203 of 2019 or “the Rice Liberalization Act,” RA 11479 of 2020 or the “Anti-Terrorism Act,” etc.

The bad news is the AES Law was not implemented well due to misinterpretations of its provisions by the Commission on Elections (Comelec), and even by its AES provider Smartmatic, and it has no IRR up to now! Imagine that the promulgation of IRR was pending at the Comelec for the past 23 years and still counting! Isn’t the law clear in its Section 37 that “[t]he Commission [Comelec] shall promulgate rules and regulations for the implementation and enforcement of this Act.” The question arises as to who will dare ask the Comelec to promulgate the IRR of AES Law. Will it be the next joint congressional oversight committee (JCOC) on AES? But where is the JCOC as it has not been convened since May 2020. Section 33 stipulates: “The oversight committee shall conduct a mandatory review of this Act every twelve (12) months from the date of the last regular national or local elections.” Is the delay due to pandemic or was it overlooked? Who will wake up the JCOC? The President?

Even the JCOC on AES never lifted a finger to push the independent constitutional body to release the IRR in the past automated elections from 2010 to 2019. How can we trust them to push the Comelec to release the IRR before the 2022 elections? Even the JCOC hearings then were for show and grandstanding of some lawmakers rather than compelling the Comelec to comply with the law. In Section 33, the JCOC is mandated to “…conduct a comprehensive assessment and evaluation of the performance of the different AES technologies implemented and shall make appropriate recommendations to Congress, in session assembled.” The JCOC did not submit any single assessment of the AES systems to the Congress in session since 2010 — never! However, the Advisory Council, headed by the then Commission on Information and Communications Technology (now called the Department of Information and Communications Technology) submitted to the JCOC its recommendation in 2010 not to use the PCOS machines of Smartmatic as stated in Section 33: “A written report to the Senate and the House of Representatives shall be submitted by the Advisory Council within six months from the date of election.”

As a result, the JCOC hearings then only wasted the time of stakeholders and real righteous politicians. Unfortunately, the issues raised by the stakeholders in the JCOC hearings about violations of the law, unlawful direct contracting and option to purchase, faulty system processes, early transmissions before the election date, unknown cause of vertical lines, unauthorized scripts, faulty programs in the CF cards, no voter’s receipt, no digital signatures, unauthorized proclamation of winning candidates in the absence of digital signatures via electronic transmission, the 60-30-10 phenomenon, etc., became “for your information” only. There was only one issue resolved! It was not in the JCOC but in the Supreme Court, through oral arguments, which then ordered the Comelec to provide voter’s receipts before the 2016 elections. That could have been tackled by the JCOC without having to go all the way to the SC.

Another notable event in the AES chronicles was the legal battle between Smartmatic and the actual owner of the PCOS technology, the Dominion Voting System of Canada, which was surprisingly not considered by Comelec as a critical risk as it continued to patronize Smartmatic until 2019 without analyzing what Smartmatic revealed in Delaware Chancery Court
(,%202012.pdf). These were the main grounds (on p. 4): 1)“failing to deliver fully functional technology for use in the 2010 Philippines national election” (that’s why the PCOS machines were not counting properly!); 2) “failing to provide timely technical support during and after the Philippines election” (that’s why defects were not resolved!!); and, 3) “failing to place in escrow the required source code, hardware design, and manufacturing information” (That’s why Smartmatic did not comply with the AES Law!!!).

Further, on page 18, it is stated: “During a test of the automated voting system conducted shortly before the [2010] Election, Comelec and Smartmatic discovered a defect in the licensed technology — Dominion International’s software failed to correctly read and record the paper ballot.” It is technically impossible to correct such a defect of 76,000 PCOS machines in less than a week. That’s why AES Watch filed a petition to the SC to postpone the elections for some time to correct the defect — but this was denied!

And before the 2013 elections, former Comelec chairman Sixto Brillantes, on behalf of the Comelec, offered to place $10 million in an escrow account and proposed that whoever wins in the Delaware case would get the money. Brillantes’ desperate proposal was to have the source code released by Dominion. Was our government that rich to interfere in the legal battle? If ever, was Brillantes authorized to do that? By whom? What law? However, at the time, the deadline to have it test-certified, Feb. 13, 2013, had already passed. The law prescribes that the source code be certified three months before the elections (i.e., May 13, 2013). In any case, the source code was released to Comelec a few days before May 13.
Thus, that unsolicited proposal was useless anyhow as the Comelec had already violated the law. In the first place, why would Comelec interfere in the legal battle when in fact the democratic exercise then was at risk by running the untested and uncertified Smartmatic’s AES? Comelec could have reverted to pure manual elections!

That was not the first intervention of Comelec with the affairs of its AES vendor. In March 2009, Comelec started to bid out P7.2 billion worth of AES projects for the automation of 2010 elections. The joint venture (JV) partnership of Total Information Management (TIM) and Smartmatic (T-S) won the bid. On June 30, 2009, the Comelec was set to sign the contract with T-S. However, even before the set date of signing, TIM had already written to Comelec that it was quitting the JV and it had not signed yet the JV document with Smartmatic. Then Comelec chairman Jose Melo stated, “If there is no such document, who are we signing the contract with?” Melo gave the joint venture partners until July 3, 2009 to settle their differences. The Securities and Exchange Commission (SEC) issued a certificate of incorporation of T-S on July 8, 2009 and the contract signing with Comelec ensued on July 10, 2009. Notice that the SEC document was only released four months after the start of the bidding. This caught the attention of the group of lawyer Harry Roque [Jr.] which therefore filed a petition to nullify the contract on the major ground that T-S “did not submit the required documents during the bidding process that should establish the due existence, composition and scope of their joint venture, in violation of the Supreme Court’s holding Information Technology Foundation of the Philippines, v. Comelec (GR 159139, Jan. 13, 2004).”

Also before the 2013 elections, Harry Roque Jr., former vice president Teofisto “Tito” Guingona Jr., Bp. Broderick Pabillo and Dr. Temy Rivera led a group petition to the United Nations Human Rights Commission stating, “The Philippines violated the authors’ right to the free expression of their will as electors during the May 10, 2010 automated elections, and continues to violate such right in its conduct of the May 13, 2013 automated elections…” This statement was based on the following premises: “The Republic of the Philippines is a party to the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR)…The Republic of the Philippines has violated Article 25 of the ICCPR – Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; c) To have access, on general terms of equality, to public service in his country.”

Looking ahead, we only have 19 months to go before the 2022 elections. There’s still no sign of IRR promulgation of RA 9269 or even an assertion from Comelec Chairman Sheriff Abas. From 1997, how many Comelec chairmen and commissioners that we have to count before the IRR promulgation? Were their appointments really worth our democracy? How many presidents and lawmakers do we need to wait for till it is promulgated? Do we want President Duterte to step in to put the AES law to work just like his pronouncement in Tokyo last year to get rid of Smartmatic? Or rather pass the hybrid election system bill pending in Congress as its IRR is quite easy to promulgate?

There are still a lot of legal and technical issues unsettled at this moment. These will surely haunt us in the future if all the AES decisions made by Comelec in the past are not corrected.