I am writing this piece because it is absolutely necessary to do so right now. I still firmly subscribe to what Roosevelt once said, that “Democracy alone, of all forms of government, enlists the full force of men’s enlightened will … it is the most human, the most advanced, and in the end, the most unconquerable of all forms of human society. The democratic aspiration is no mere recent phase of human history. It is human history.”
Democracy is therefore based on the conviction that man has the moral and intellectual capacity, as well as the inalienable right, to govern himself with reason and justice.
In other words, it is man’s capacity for justice, man’s possession of his fundamental rights, which includes the very precious right of suffrage that distinguishes a democratic society from a totalitarian rule of any variety and dimension.
When injustice happens, when the integrity of the exercise of suffrage is violated in any manner, as what happened with such ugly ferocity in the 2004 elections; when an errant president, in shameless collusion with a national election official, managed to successfully transgress our inalienable right of suffrage, and with a put-on penitent face, tells the citizens, “I am sorry … it was a lapse of judgment,” can you blame the vigilant citizenry now for doing all they can in order to ensure the integrity of the votes they cast and endeavor to prevent that same president from again shamelessly debasing and violating their right of suffrage?
We must bear in mind that there can be no daily democracy without daily citizenship … that a silent majority and government by the people are incompatible. Remember furthermore that the price of greatness of a citizenry is vigilance and responsibility, and that democracy is measured not by its leaders doing extraordinary things, but by its citizens doing ordinary things extraordinarily well.
It is within this compelling context that I have decided to write about the legal defects and technical violations of the Smartmatic-TIM (ST) contract with the Commission on Elections (Comelec), the subsequent faulty execution thereof and the imminent danger it poses to our democracy. I will write this with the least use of legal and technical verbosity.
It was just last week, on Sept. 15, when Comelec chair Jose Melo released a statement that they were preparing for manual elections in “30 percent to 50 percent of areas in the country, specifically areas that are prone to power failures and network transmission issues.”
This is precisely what the Roque, et al, petition before the Supreme Court contended. I was present at the oral arguments and en banc hearing before the court and heard that “we can possibly automate only up to 70 percent of the country without experiencing a grand failure of elections.”
Attys. Rommel Bagares and Gilbert Andres, very idealistic, young, but extremely knowledgeable lawyers and members of the Concerned Citizens’ Movement (CCM), now contend that, “Since 30 percent to 50 percent of the elections will be conducted manually, the contractor should return the proportionate amount to the government, and since the Automated Election System (AES) costs P7.4 billion, the contractor should be returning between P2.22 billion and P3.7 billion corresponding to the 30 percent to 50 percent reduction, respectively.”
The gross error is that the terms of the payment are so twisted in favor of the joint venture contractor that even if, for any reason, the automated elections do not push through as planned, there is every assurance that the joint venture gets paid for the most part.
The Terms of Reference (TORs) formulated by Comelec, critical in any public bidding, do not contain any payment schedule. ST can leave the Philippines just like that, with about 90 percent of the project costs already paid even before election day. If partial automation will be implemented, as Melo now announces, then the payment should be reduced accordingly. Comelec should fix the amount and the terms of refund now; otherwise it will become very difficult to claim the refund after the elections. After all, this is the money of the people — the amount is very sizeable and should not be allowed to be at the mercy and recklessness of the Comelec body.
But this is not even what is so critical. This, after all, is only pecuniary; it is only money. What is dangerous is the specter of a failure of elections, the un-quantifiable costs to our democratic ideals through a failure of elections that can destroy the democratic essence of the Filipino citizen’s existence.
What indeed are the factors, legal and technical, that could result in violating the integrity of our votes?
Melo’s scaling-down announcement that about 30 to 50 percent of the nationwide coverage would go manual amounts to about 10 million votes, effectively nine times Gloria Arroyo’s supposed lead in the 2004 elections. Why has Comelec reduced coverage when time and time again, Comelec announcements have proclaimed that “all is fine and on track despite the two-month delay,” while the petition was pending before the Supreme Court?
Why the scaling down? How does the project plan look today compared to the original one? Where are the corners being cut and the shortcuts applied? Has the transmission network design been submitted by ST to the telecom carriers so that they can submit their reports for implementation as part of project execution? You’ve got 10 million votes in danger! Isn’t this frightening?
ST contends that their PCOS (Precinct Counting Optical Sensors) machines have been certified in the United States, notably in New York, as reliable counting machines. This is not true for it was never used in New York as a counting machine but as a ballot-printing machine. There is, of course, a difference between the two as the very nomenclatures suggest. It’s impossible that it has been used in New York because it has never been certified in the US and certification is a prerequisite for use in the United States. This, by itself, has been an unforgivable falsity.
There is no legal framework to address an audit of the election results or election protests in case of a breakdown in the system. The Comelec itself, during the oral arguments, admitted through the office of the Solicitor General that the Ominbus Election Code as it stands addresses problems solely associated with manual elections. We all know that only a subsequent legislative act can amend the law and not mere administrative issuances from Comelec.
How do we go about appreciating the ballots cast under the PCOS system in case there are questions about the integrity of the elections if there are as yet no rules prescribing the procedures for such a contest? In the first place, you cannot open the “electronic votes” cast unless there is an election protest. But how do you file an election protest in the absence of rules in the Omnibus Election Code providing for this?
What about the fact that ST will generate the public and private keys? This simply means that ST will have control of all the technical aspects of the automated elections. It will have full access to the election data, as well as the PCOS machines, and can well bypass the Board of Election Inspectors if it wants to, as well as tap the machines from a remote location.
This is the perfect recipe for cheating. It can be so swiftly done. A third-party verifier of the keys is necessary, like “Verisign,” which, though it costs a lot, is necessary in order to comply with the rules. Did ST not bother to do so because it would reduce their profits? And did Comelec just agree?
As regards the classic case of the delayed release of the “Source Code,” the fact that the Supreme Court decision did not directly address this critical issue or the computer program instructing the PCOS machines to read the ballots is, by itself, nothing less than tragic.
A source code review is provided for by the automation law. The major political parties, media and other authorized organizations have to be given full access to review the code, to ensure that there were no malicious programs inserted, and that the code was programmed to properly read the ballots cast.
It turns out that what ST has with a company named Dominion is a mere binary contract, which means that ST only has a license to use the software to run the PCOS machines, but it cannot modify, alter, or reveal this to third parties. There is a proprietary clause that restricts access to the code. This could explain why, until now, Comelec refuses to grant access to the code when the law itself precisely requires it.
The code for this exercise is complex and will take as much as three months to review, according to very respected experts. If the Comelec delays the release of the codes until early next year, there will not be sufficient time to undertake an honest-to-goodness review, if said body at all intends to release the codes in full. In the ARMM elections, the code for the machines, also provided by Smartmatic, was never subjected to a review, and we all know what happened to the ARMM elections.
There are a number of other pilot-testing and track-record issues that truly confused even Comelec and the Supreme Court, as pointed out by a number of expert sources, and these have been discussed quite a number of times already through broadcast and print media.
In the meantime, the integrity of the ballot for the 2010 elections cannot, in any manner, be compromised. All of the above factors could spell violence to the Filipino’s fundamental right of suffrage.
The trouble is, an immoral government calls its own violence “law,” while that of the individual is a “crime.” But remember that of all the valuable capital the world possesses, the most valuable and the most decisive can be the people.
We need therefore to rekindle the belief that, as a people, we can live above the level of moral squalor.
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