Failure of elections in the Philippines

Briefer on the Poll Automation Project

PREPARED BY THE CITIZENS’ ALLIANCE AGAINST ELECTORAL FRAUD AND FAILURE OF ELECTIONS (CAAEF-FAEL)

On May 10, 2010, about fifty million Filipino voters will troop to 76,000 clustered polling precincts nationwide to cast their ballots in the first ever fully automated presidential elections in Philippine history. Various political parties, candidates, and observers have expressed the collective fear and anxiety that a major disruption of the fully automated presidential polls could lead to a failure of elections, triggering a constitutional crisis that could have far-reaching implications to the nation’s political stability.

All those doomsday scenarios have sufficient bases.

The full automation of the electoral process is being led by the watchdog Commission on Elections (Comelec), which has gained infamy of international proportions for official incompetence, corruption, fraud, and mismanagement of previous elections. Comelec lacks credibility. It still suffers from the institutional damage that has been triggered by alleged involvement of its key officials in fraudulent activities, including the “Hello Garci” controversy and the ZTE/NBN scandal.

Comelec has awarded a contract to implement the P7.2 billion poll automation project to the consortium of Smartmatic Corp., a Venezuelan firm that has a dubious track record on poll automation, and Total Information Management (TIM), its local partner. Quoting losing bidders and other quarters, press reports have raised serious questions about Smartmatic’s equity ownership and its relationship with the Hugo Chavez government, which allegedly rigged elections in Venezuela.

The outsourcing of the nation’s electoral process to a foreign firm is causing widespread anxiety among concerned citizens and various sectors, including the Church and civil society. It is like outsourcing national sovereignty to a foreign firm. It has been established too that the poll automation project contains too many potential human, procedural and technical issues that could lead to either partial or total failure of elections.

In its assessment of the poll automation project, Pacific Strategies & Assessment, a foreign consulting firm that provides political risk assessment, said: “There is no official record of any country in the world transitioning completely from a pure manual to full automated elections system in one electoral exercise.”

CHEATING INSTITUTION

As a constitutional quasi-judicial body, Comelec has two mandates: operations, which is to oversee, conduct, and assure orderly, peaceful, free, and honest elections, and adjudication, which is the settlement of electoral disputes.

Comelec’s tainted reputation and history has serious repercussion on critical sectors, which believe that Comelec has not been fair in the conduct of its mandates. They claimed that a major reason why the country is a soft state is the presence of a weak and corrupt Comelec.

It is height of irony or even tragedy that the poll automation project, which is envisioned to hasten the delivery of election results to prevent massive cheating, is being spearheaded by an institution with questionable integrity and tainted reputation. It is no secret that it is not only losing candidates, who bribe high ranking Comelec officials, but also winning candidates, who do it mainly to protect their votes and assure victory.

The poll automation project does not motivate President Gloria Macapagal-Arroyo to pursue measures to complement it. As the appointing power, the President has named new commissioners, who are either in the twilight of their careers or who are unskilled in poll automation. While the new commissioners could contribute in the adjudication of electoral disputes due to their legal background, they have limited knowledge on the operational aspects of the polls.

QUESTIONABLE TANDEM

The Smartmatic-TIM consortium, meanwhile, raises concern on its capacity to implement without major hitches the poll automation project. This has basis since days after Comelec awarded the contract to Smarmatic-TIM consortium, TIM attempted to back out of its partnership with Smartmatic, suggesting differences with the Venezuelan firm. Only Comelec’s intercession had prevented the parting of ways of the two firms. That was after Comelec had threatened TIM officials of legal suits if ever they would back out.

Comelec’s decision to award the poll automation contract to Smartmatic-TIM has been fraught with many questions and controversies. The issues pertain to transparency and Smartmatic’s qualification to handle the poll automation project. For instance, a controversy revolves on Smartmatic’s failure to provide Comelec with what were described “authentic and original” copies of previous contracts to show its competence to handle automated elections of similar scope and magnitude as the Philippines’s.

Also, Comelec awarded the contract to Smartmatic-TIM consortium in what could be said a “chaotic” bidding process and on the basis of what has been described as “outrageously low bid” of P7.2 billion, which was P4 billion lower than the Comelec’s publicized budget for the poll automation project.

Pacific Strategies & Assessments said: “Many knowledgeable observers found the flawed Comelec process to be tantamount to a conspiracy of obfuscation couched in highly technical language that prevented most laymen from fully grasping the nuances of the process or its many shortcomings and failures.”

Lately, the consortium was reported to have beset with dissension as Smartmatic has assumed practically all the major aspects of the poll automation project relegating TIM to the sideline. This has serious legal implications because the poll automation law mandates that only private firms with at least 60 percent local equity could automate the elections. The two firms have been denying any serious disagreement between them. Smartmatic said TIM has been given weekly briefings.

Also, Comelec was reported to have practically surrendered direct supervision and effective control over the poll automation project, allowing Smartmatic to do almost everything at will, or in its own terms. This is a violation of the poll automation law. Moreover, it raises questions of public accountability, as Smartmatic executives are believed to fly out of the coop the moment the poll automation project becomes awry and uncontrollable.

DISORGANIZED WATCHDOG SYSTEM

The Comelec-Smartmatic partnership on the poll automation project seems to thrive in an environment, where private electoral watchdog organizations are generally perceived to be weak, disorganized, or even dysfunctional. It has been widely perceived that major private watchdog organizations have remained largely uninformed on the actual mechanics of the fully automated electoral system. Except for some overnight coalitions that have sprouted lately, most private watchdog organizations have been largely unresponsive on the major issues that confront poll automation.

The failure of the National Movement for Free Elections (Namfrel) to get accreditation from Comelec is a case in point, indicating that Comelec is bent to marginalize private watchdog organizations so that it could operate with impunity. In fairness, Namfrel seems disoriented on its actual role in a fully automated electoral system. Since parallel counts are to become extinct or a superfluity in the next polls, Namfrel, despite urgent calls to reinvent itself, seems contented to stay on the sideline and perform no significant role on May 10.

The Parish Pastoral Council for Responsible Voting (PPCRV), the mainstream watchdog organization that represents the conservative sector within the Roman Catholic Church, appears to have been co-opted by Comelec as indicated by its joint projects with the poll body on voters’ education. Former Ambassador Henrietta de Villa, who used to head Namfrel but left it to head what appears to be a greener pasture as the PPCRV, has taken a soft stance vis-à-vis Comelec. Anyway, they are partners. The Integrated Bar of the Philippines (IBP) and Legal Network for Truthful Elections (Lente) are busy putting up their networks, although their stand on the poll automation project has not been aired publicly.

The more militant sector within the Church, as represented by National Secretariat for Social Action (NASSA) and a sprinkling of temporary alliances like Kontra Daya, Halalang Marangal, Compact for Peaceful and Democratic Elections (Compact), and Philippine Misereor Partnership have come out in the open to take a more adversarial stance against the poll automation project. Still, they appear to be in a minority.

Overall, the mainstream private watchdog organizations have been not confrontational when it comes to Comelec. They have adopted what seems to be a policy of collaboration, avoiding any adversarial stance on Comelec. Who will watch the watchdog amid all threats of a failure of elections is a fundamental question.

PROCESS

The automation process starts at the 76,000 polling precincts, each of which is to be equipped with precinct counting optical scan (PCOS) machines that would electronically count the votes and transmit the election results to Comelec servers in Metro Manila. Comelec has claimed the election results would be known in a day or two.

According to observers, the automation of precinct counting raises serious concern since this procedure automates the wrong process and negates transparency. Voters and party watchers have no way to determine the actual voting in each precinct, as this process effectively hides from the public the voting on precinct level and raises the specter of electronically manipulated cheating.

It has been suggested that the automation should start in the canvassing phase in the municipal and provincial levels since past elections showed that wholesale cheating actually took place in these areas. But Comelec had insisted on the automation of precinct counting, believing that it would lessen electoral protests.

Also, Comelec’s refusal for any manual or electronic audit of all cast ballots further negates any process – direct or indirect – for the public to determine precinct voting. Comelec’s focus on the counting machine as the final arbiter of the electoral contests and rejection of any human intervention in the form of any manual audit seems to be incongruous if the nation’s tradition of electoral system is to be considered.

INDEPENDENT REVIEW

Republic Act 9369, or the Automated Election System Law of 2009, mandates Comelec to conduct systems verification of the poll automation project prior to the May 10 presidential elections. But Comelec and the Smartmatic-TIM consortium have not subjected to any independent review the physical component, specifically the PCOS machines which comprise the hardware portion of the poll automation project.

The independent review assumes significance in the light of Smartmatic’s unilateral decision to transfer the manufacture of the PCOS machines to China despite its earlier announcement that they would be made in Taiwan. Smartmatic has not fully explained the transfer of their manufacture to China, fuelling speculations that tend to cast doubt on the integrity and ability of these machines to perform their designated functions.

This is an area of concern because of the crucial role the PCOS machines will perform in the next elections. Aside from doing the precinct counting and electronic transmission of these votes to Metro Manila servers for consolidation, the PCOS machines will also print copies of the election returns, some of which will be provided to various election watchdog organizations and monitors and political parties.

A systems verification – or independent review - of the hardware and the software is the key to assure the capability and integrity of the first ever fully automated presidential elections. Failure to undertake any systems verification could lead to serious allegations of electronic fraud. How Comelec will perform this systems verification within the next 60 days is another fundamental question.

DISENFRANCHISEMENT OF VOTERS

Adaptation will be a key issue to assure the success of the coming polls. But Filipino voters do not necessarily adapt to a new electoral environment since poll automation is a nascent technology in the country. If recent surveys are to be believed, three out of five Filipino voters are clueless about poll automation. Also, it seemed that Comelec’s voters’ education, which it claimed to have been conducting for the past several months, has not been reaching the people.

Hence, the massive disenfranchisement of voters is quite probable. This is tantamount to frustrating the people’s will and the essence of democracy.

Disenfranchisement is possible on three levels: ballots, machines, and voters’ list. Filipinos can be disenfranchised from voting when fake ballots find their way to polling precincts, or when some people put virus on the ballots, leading to the non-counting of votes for certain candidates. There are many ways to disenfranchise voters through the ballots and evil geniuses would certainly ply their trade to frustrate the people’s will.

It has been estimated that about 1,630 ballots will have to be printed and prepared. This is because the coming polls will include candidates down to municipal and city levels. Any misprinting or failure to include seals or marks will confuse voters and provide significant reason for electoral protests.

The counting machine is another venue for disenfranchisement. The mere failure to deliver these PCOS machines to their designated clustered polling precincts will already mean disenfranchisement of those voters assigned to those particular polling precincts. It has been estimated that the non-delivery of about 20 percent of those PCOS machines would be sufficient to alter the results of the coming elections.

The clustering of the more than 240,000 polling precincts nationwide into 76,000 polling precincts would mean integration of the voters’ list. Although Comelec has announced the purging of some 700,000 names in the voters’ list, there is no assurance that the voters’ list would have integrity. In brief, a voters’ list that lacks integrity will lead to disenfranchisement since many voters will not find their names on the list and vote accordingly.

Also, the issue of voting time could disenfranchise voters. Already, a private poll watchdog organization has claimed that based on its study, half of voters of every clustered polling precinct would not have the material time to vote. Based on what it had claimed were simulation exercises it had conducted, the watchdog organization said half of the 1,000 voters, who line up at the start of the voting time, would hardly fill up the ballot, which could be almost three feet long, until voting ends at 6 pm.

This is a claim that has been denied by Comelec, which said that each polling precinct has the material time to accommodate all voters in its list.

DELIVERY OF COUNTING MACHINES

In a recent investigative report, Newsbreak newsmagazine has said that the weakest link in the poll automation project may be in the area of logistics. The delivery of 82,000 PCOS machines nationwide poses a biggest logistical problem since “this crucial and sensitive task has been assigned to layers of subcontractors with limited track record and with no direct accountability” to Comelec.

It appeared too that the bigger firms with track records have shied away from the poll automation project largely because of financial considerations. The risks were too high, but the financial gains were small. Comelec was reported to have imposed heavy fines for failure to deliver those PCOS machines to their destinations.

According to Newsbreak: “The windows for cheating, sabotage, or failure - if any party is contemplating this - is in the delivery of the vote counting machines, from the warehouse in Laguna to various parts of the country.”

Comelec has contracted three firms for the delivery of the PCOS machines: Germalin Enterprises Inc., which will deliver in Metro Manila; Ace Logistics Inc., in the rest of Luzon; and Argo International Forwarders Inc., in the Visayas and Mindanao. The three firms confirmed that the delivery of the PCOS machines is their single biggest contract so far in their corporate histories. No competitive bidding took place as Comelec merely handpicked the three firms for lack of better options.

Newsbreak said: “Except for Germalin, which has its own trucks and will be limited to Metro Manila, these logistics firms, in turn, are contracting different warehousing and trucking services in their assigned regions, provinces, cities, and municipalities.”

The report said Comelec has yielded control and supervision over these forwarders, as their contracts are with Smartmatic and not Comelec. This has far-reaching implications because the current arrangement could make these firms vulnerable to partisan interest and even sabotage, as the report said it would only take the non-delivery of several thousands of these machines to alter the election results.

SOURCE CODE

The issue of source code has become contentious in the wake of serious allegations that the U.S.-based firm contracted by Comelec to review it has a tainted record. It has been reported that the US federal government had suspended in Oct. 2008 the accreditation of Denver-based SysTest Lab as one of five independent laboratories that could conduct testing and certification of electronic voting systems to be used in US elections.

This was after the US National Institute of Standards and Technology observed that SysTest Lab did those tests without “properly documented and validated test methods.” Also, it conducted its tests with “unqualified or untrained personnel” and made “improper assurances” to manufacturers regarding testing outcomes.

On Oct. 2009, Comelec, through Resolution No. 8677, awarded SysTest Labs, an accredited “quality assurance and software performance testing company,” a P70 million contract to conduct the testing and certification, including the legally-mandated source code review, of the automated election system. The source code review is critical because this is the way to assure the public that the PCOS machines will accurately the actual votes cast by voters. The source code contains the human-readable instructions that make up any software program.

According to reports, Smartmatic-TIM acquired an exclusive license to use the source code owned by a Canadian firm, Dominion, for use in the presidential elections. Although the contract between Smartmatic and Dominion has not been publicly divulged, Smartmatic rolled out a variation of Dominions ImageCast technology, which was customized to fit into Comelec’s requirements. Due to changes, Smartmatic later changed the system’s name to SAES1800.

On Oct. 13, 2009, Comelec turned over the review of the source code to SysTest Labs, which is one of the several certification labs or independent testing authorities in the U.S. The firm is charged with testing the system’s security, telecommunications, error, notification, auditing, and recovery, and its functions under various load and stress situations. Each module will be tested according to industry standards. Systest Labs had until Feb. 6 to submit its evaluation.

It was reported that the US federal government was concerned not only about SysTest Labs’s technical competence, but also its ethics. It was also reported that the US Election Assistance Commission had probed SysTest Labs for allowing one of its clients, the manufacturer and vendor ES&S (Election Systems and Software), to unduly influence its certification procedures.

The USEAC had expressed concern that SysTest was allowing and inviting manufacturers to play an inappropriate role in the development of test plans since it was not appropriate for a manufacturer to be directly involved in creating plans for testing their own systems. Also, the USEAC chided SysTest labs for making “an inappropriate promise of certification” to the manufacturer.

It also reported that the US federal government was concerned that SysTest Labs was rigging its certification process in behalf of ES&S. Also,the ES&S iVotronics touch screen electronic voting system certified by SysTest Labs has been cited in a number of electoral controversies, including statewide and local elections in Florida in 2006.

As a result of the suspension of its accreditation, another election services vendor, Premier Election Solutions (formerly Diebold), sued SysTest Labs in Jan. 2009 in a US Federal Court for fraud, fraudulent inducement, breach of contract, unjust enrichment, conversion and deception. Premier claimed that SysTest Lab’s substandard procedures wreaked havoc on its business.

It was claimed that Smartmatic has had a long-standing relationship with SysTest Labs. Its Smartmatic Auditable Election System (SAES) 1800 Precinct Tabulator, which will be deployed in over 70,000 precincts on election day, was certified as “over 99.99999%” accurate. But the certification comes from SysTest Labs, possibly in accordance with the shoddy procedures criticized by the US federal government.

PRIVATE AND PUBLIC KEYS

The assertion that Comelec has yielded to Smartmatic the effective control and supervision over the poll automation project does not only send chills to the spine but provides a preview of the possible end game on May 10. In short, Smartmatic, a foreign firm of dubious reputation, has become too powerful to lord over the entire automated electoral process. This reality becomes more glaring particularly when the issue of private and public keys on poll automation is being raised.

In its report, Pacific Strategies & Assessments said: “A public key infrastructure (PKI) enables users of a basically unsecure public network, such as the Internet, to securely and privately exchange data through the use of a public and a private cryptographic key pair that is acquired and shared through a trusted authority. Comelec bid bulletin #10 directs Smartmatic-TIM to generate private and public keys of all Board of Elections Inspectors (BEI) and Board of Canvassers (BoC) personnel – the individuals responsible for communicating the precinct results.

“Unfortunately, in the proposed system, the private key is not private. After collation of votes, the BEI will seal its tally with a digital signature using private keys before transmitting the results. Regrettably, as it stands now, Smartmatic will have possession of the secret and the public keys of all BEI. In essence, the digital signatures would be generated and assigned by Smartmatic or groups authorized by it; not an independent or trusted authority. By possessing the private keys, Smartmatic and its associated parties can make changes to the precinct election results without detection.”

OTHER ISSUES

A host of other issues have become equally contentious, further jeopardizing the poll automation project:

· The worsening Mindanao power crisis threatens to engulf many areas in the country’s second largest island, leading to possible failure of elections in those areas.
· The delay in the training of some 400,000 public school teachers, who would man the clustered polling precincts, could lead to their poor grasp of the nature of poll automation.
· The continuing difficulty of the Smartmatic-TIM consortium in finding qualified technology specialists, would adversely affect the poll automation project since these people would provide the training and support for the automated electoral system.
· The separate memory cards of the voting machines increases the vulnerability of the automated electoral system software since placing the software on an external memory disk or flash drive complicates the voting system functionality and opens up opportunities for damage, tampering, and alteration.
· The absence of any perceptible fallback option in case the poll automation project fails, leading to a failure of elections.

FAILURE OF ELECTIONS

At this point, talks of a possible failure of elections – partial or total - have been prevalent. The endgame scenario has been the subject of conjectures among political leaders, observers and pundits, who view the future with a bleak outlook.

They claimed that a failure of elections could lead to a constitutional crisis if ever Congress fails to proclaim a new president before the expiration of the term of office of the incumbent President. They warned of a potential power vacuum, which certain predatory political forces could take advantage.

Several scenarios have been advanced. These include:
· The incumbent President assuming control on a holdover capacity, which is until a new president shall have been proclaimed;
· The establishment of a military junta, which Deputy Presidential Spokesperson Charito Planas had acknowledged; and
· Senate President Juan Ponce Enrile’s scenario on the possible entry of the Armed Forces of the Philippines and the Philippine National Police by invoking the “protector of the people” doctrine.

At this point, any of the scenarios or a combination of them would appear unpalatable since they appear without any constitutional basis.

CONCLUSIONS

Several conclusions could be deduced from the discussions:

1. Comelec appears to be biting more than it could chew. It has not transcended the institutional weakness and debilitating low credibility to the point that practically all major sector sectors have expressed misgivings on its ability and managerial capability to run the envisioned automated electoral system without major hitches and glitches.

2. Smartmatic has assumed an inordinate position of strength in the implementation of the poll automation project. Because of the inherent institutional weaknesses of Comelec, Smartmatic has become the virtual player that could dictate the conduct of the automated electoral process. It would appear it has made Comelec beholden to what it wishes to undertake.

3. The failure of elections scenario is more real than imagined. It has sufficient bases. It could lead to a constitutional crisis, where the exact endgame is a matter of conjecture.