Doubtful

The arm of the law seems longer in America.

A few days ago, prosecutors indicted former Comelec chair Andres Bautista for possible money laundering. The laundered money allegedly comes from bribes previously paid out by election technology company Smartmatic. Three senior officers of the technology company were indicted along with Bautista and have posted bail bonds for their temporary liberty.

It is not clear if Bautista posted a bond as well. The former poll official fled to the US after his estranged wife revealed he had hundreds of millions of pesos stashed away. No corresponding case has been filed against him in Philippine courts, although the Comelec is still conducting an investigation on the matter.

Recall that Comelec chair George Garcia arbitrarily excluded Smartmatic from bidding to supply the technology for the forthcoming elections. The Supreme Court found Garcia to have acted improperly in excluding Smartmatic without completing an investigation.

As a result of Garcia’s action, the huge P18-billion contract for counting machines to be used in next year’s elections was awarded in an exercise with only a single bidder: a South Korean company called Miru. That contract spawned its own set of bribery allegations against Garcia.

Although a new contract has already been awarded, Smartmatic Philippines insists the equipment it supplied Comelec and used in previous elections were still fully usable. In addition, the warehoused equipment continue to be covered by Smartmatic’s warranty. That means they could still be deployed in the event Miru fails to deliver on its contract.

Chairman Garcia is probably entitled to crow about Bautista’s indictment in the US. That seems to confirm his allegations about bribery in the previous poll automation contracts. But that event is separate from the issues that have been raised against the new supplier Miru.

Miru, after all, has a checkered record in supplying other countries with counting machines. The machines this company supplied Iraq and the Congo for elections held last December had very high rates of failure. Because of these failures, both countries teetered on the brink of partisan riots because of the delay in producing election results.

The Miru machine offered Comelec was described as a “prototype” that is supposed to correct the flaws in technology supplied to Iraq and the Congo. But our laws covering election automation explicitly require that the technology to be employed ought to have been used in a previous election. Comelec has not adequately explained away that evident departure from what the law prescribes.

In a word: the huge contract awarded Miru last May involved untested technology. That rightly deserves the controversy that met the award.

We do not need to detail  the sort of chaos that might ensue if the “prototype” technology somehow fails to deliver on its promise. It seems the Comelec wants all of us to take a leap of faith with its new supplier.

Democracy Watch, an NGO monitoring preparations for next year’s elections, would rather not take that leap of faith, however. In a recent statement, the group called on the Comelec to conduct full testing of the Miru counting machines to ensure they withstand the rigorous conditions of Philippine elections.

“We cannot risk having a faulty and unreliable automated election system that can lead to political instability in our country,” reads the Democracy Watch statement. “Hence we call on the Commission on Elections to conduct a full testing of the actual voting machines that will be used in the 2025 National and Local Elections. Furthermore, we also urge the Comelec to disclose to the public the compliance or non-compliance of Miru Systems pertaining to the numerous critical aspects of their voting system.”

Democracy Watch identifies as a serious issue the legality of the new Fully Automated System with Transparency Audit/Count (FASTrAC) technology that Miru will introduce. The Automated Election Law very clearly prescribes that “the system procured must have demonstrated capability and been successfully used in prior electoral exercises here and abroad.”

The Miru contract clearly does not meet that legal prescription. The “prototype” obviously is untested anywhere. Comelec must do better demonstrating that the requirement of our law is being met.

The reason we are settling for a “prototype” is that the Miru machines used in Iraq and the Congo had very high failure rates. The machines, in a large number of cases, failed to transmit results. These failures were fully documented by international election observer groups fielded to both countries.

Democracy Watch also raises a number of questions regarding Miru System’s local joint venture partners. An investigative study undertaken by Right to Know Right Now (R2RRN) last June revealed that one of Miru’s local partners, St. Timothy Construction Corporation, “is not only inexperienced in delivering election-related services but also recorded significant unsatisfactory performance with regard to its previous contracts with the Department of Public Works and Highways.”

Immediately, the Comelec must assure the watchdog groups that full testing of the equipment supplied by Miru will indeed happen. If they are able to nail down a delivery schedule with the supplier, then it should be possible to schedule an actual test sometime towards the end of the year.

If Miru, for its part, is unable to ensure a delivery schedule early enough, then we should have reason to worry. This contract involves over a hundred thousand machines that will require extensive training for their use.