The Philippine Star - Comelec-Smartmatic partnership is unconstitutional

News & Interviews
6 December 2020

By Carmen N. Pedrosa | The Philippine Star

There is an ongoing debate on whether or not we should have elections in 2022. There are many issues but I would focus on one in this column.

My opinion is it should not be held until the Comelec-Smartmatic partnership has been cancelled.

If it cannot do so then Comelec should be abolished.

As a constitutional body the Commission on Elections (Filipino: Komisyon sa Halalan) or the Comelec is one of the three constitutional commissions of the Philippines. Its principal role is to enforce all laws and regulations relative to the conduct of elections in the Philippines. It cannot and should not be shared

“It is not easy for voters to understand computer gobbledygook. They are easy prey to those pushing for fraudulent machine elections. In all my articles on Smartmatic PCOS I have tried to translate the technical problems in simple terms: For a vote to be completed, whether manual or automated, there are two acts, one is the vote itself and the second is how it is counted. If the vote was separated from the counting process, we did not vote.

Worse, all the ways through which we could prove this separation took place was closed to us. We don’t really know how the machines counted the votes.

Automatic Election System (AES) Watch has put together computer experts who have pointed out the errors by the machines. All the answer the group got from Comelec is that these have been corrected. This is a lie.

We now know this because of the case which involved Smartmatic and the Dominion Voting Systems. Therefore Smartmatic cannot correct the errors. It can only do so if Dominion, the supplier of the technology, cooperates with them. All the facts on just how the May 2010 were conducted is coming out now. It does not come from local computer experts or aggrieved losing candidates. It comes from the ongoing suit between Smartmatic and Dominion. AES Watch has a copy of the legal suit.

AES Watch has issued the following statement:

“It appears that the US-based Dominion Voting Systems, which supplied the election technology to Smartmatic for the Philippine elections, terminated its 2009 license agreement with the latter on May 23, 2012.

“As a result, the termination denies Smartmatic access to technical support and assistance as well as Dominion’s proprietary source code and other ‘escrowed materials’ which are vital to correcting and ‘enhancing’ the PCOS system upon request of Comelec in March this year,” AES’ Professor Bobby Tuazon said in a statement.

With the information coming from the suit, the group urged the Joint Congressional Oversight Committee (JCOC) to conduct a formal investigation.

This can only be done if senator Miriam Defensor Santiago had taken up the cause to show why “Smartmatic company will not be able to correct its voting system’s deficiencies” and therefore should not be used again in the coming elections.

“Failure to correct the PCOS system’s program errors and bugs may doom the scheduled 2013 mid-term elections,” Tuazon said.

Dominion is the real owner of the election technology – a fact Smartmatic hid during the 2010 elections.

With the contract terminated, all claims of Smartmatic that they corrected the errors is untrue. It cannot correct the PCOS errors and defects that are causing erratic counting, among other problems.

It took a legal fight between Dominion and Smartmatic to get at the facts of just what happened in 2010.

Smartmatic has had to admit system errors of its technology in the compact flash card (CFC) fiasco during the May 3, 2010 final testing and sealing (FTS) or a week before the May 2010 elections in the Philippines. It blamed Dominion’s software for failing to correctly read and record the paper ballots.

The Venezuelan company accused Dominion of breaking the 2009 license agreement by failing to deliver “fully functional technology” for the 2010 Philippine elections and failing to place in escrow the required source code, hardware design and manufacturing data.

This is an explicit admission by Smartmatic of the “failure of its system to function fully, resulting in glaring errors, most of which were documented” by CenPEG and AES Watch in 2010, Dr. Pablo Manalastas, AES Watch co-convener and CenPEG Fellow for IT, said.

“Does Dominion’s failure automatically imply Smartmatic’s failure to do the escrow required by the election law (RA 9369)?” Manalastas added.

“Do these actions by Smartmatic constitute a criminal intent to cheat, a criminal intent to avoid its contractual obligations with Comelec and with the Filipino people?” he asked.

A congressional committee should probe why Smartmatic has been saying its system was 100 percent perfect contrary to the scientific studies of Filipino IT experts and scholars.

Through the suit we now know that the election technology used in the 2010 national elections was fraught with program errors and deficiencies – which CenPEG, along with the broad citizens election watchdog AES Watch, have raised since 2009.

“In the absence of a serious concern from Comelec – which has actually been promoting Smartmatic in a show of partisanship – as well as Congress, this issue and other concerns have prompted CenPEG and AES Watch to sue both Smartmatic and the poll body before the Supreme Court twice. The second lawsuit – filed summer this year – is over Comelec’s decision to purchase Smartmatic’s voting machines against the strong advice of the Comelec Advisory Council (CAC).

“The Delaware lawsuit was the opening needed by concerned citizens.

Moreover, the original licensing agreement between the two companies only allows Smartmatic the use of the technology in the Philippines in 2010. There is no clear explicit provision whether its use is allowed in the 2013 elections.

“And finally, why should we allow foreign companies to manage our own election – a sovereignty issue?

Filipinos should emulate the Americans and be mature by conceding to winners quickly after elections. What!?” (Sourced from a column I wrote on Nov. 10, 2012.)

“The idea that Trump only lost, say, Pennsylvania, because of Dominion voting systems has to reconcile with the fact that Trump actually won more votes in counties that used Dominion systems (beating Biden by about 74,000 votes in those counties) but lost the state because he was beaten by 154,000 votes in non-Dominion counties.”