GLOBAL FILIPINO NATION Empowering Filipinos onshore and overseas
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27 May 2010
FOREIGN OBSERVERS CHALLENGE ELECTION LEGITIMACY
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1. THE ELECTION RESULTS TRANSMITTED FROM THE PRECINCTS DO NOT HAVE DIGITAL SIGNATURES OF THE BOARD OF ELECTION INSPECTORS.
Based on industry standards, the digital signature on the precinct Election Return (ER) is a summary (hash value) of the ER encrypted using the BEI’s secret key. The digital signature serves two purposes:
a. It identifies the BEI personnel and the precinct number from which the ER came; and
b. It ensures that the precinct ER is not modified in any way by dagdag-bawas (immutability of precinct data).
Because of the importance of digital signatures in maintaining data integrity and security, REPUBLIC ACT 9369 states in SEC. 19 A. In the election of president, vice-president, senators and party-list system; and B. In the election of local officials and members of the House of Representatives:
"Within one hour after the printing of the election returns, the chairman of the board of election inspectors or any official authorized by the Commission shall, in the presence of watchers and representatives of the accredited citizens' arm, political parties/candidates, if any, electronically transmit the precinct results to the respective levels of board of canvassers, to the dominant majority and minority party, to the accredited citizen's arm, and to the Kapisanan ng mga Brodkaster ng Pilipinas (KBP).
"The election returns transmitted electronically and digitally signed shall be considered as official election results and shall be used as the basis for the canvassing of votes and the proclamation of a candidate."
Also in SEC. 25. "Authentication of Electronically Transmitted Election Results. - The manner of determining the authenticity and due execution of the certificates shall conform with the provisions of Republic Act No. 7166 as may be supplement or modified by the provision of this Act, where applicable, by appropriate authentication and certification procedures for electronic signatures as provided in Republic Act No. 8792 [Electronic Commerce Act] as well as the rules promulgated by the Supreme Court pursuant thereto."
REPUBLIC ACT 8792, SEC. 5. Defines "e. “Electronic Signature” refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedures employed or adopted by a person and executed or adopted by such person with the intention of authenticating or approving an electronic data message or electronic document."
SEC. 8 also stipulates. "Legal Recognition of Electronic Signatures. - An electronic signature on the electronic document shall be equivalent to the signature of a person on a written document if that signature is proved by showing that a prescribed procedure, not alterable by the parties interested in the electronic document, ..."
SEC. 9 provides. "Presumption Relating to Electronic Signatures. - In any proceedings involving an electronic signature, it shall be presumed that:
a. The electronic signature is the signature of the person to whom it correlates; and
b. The electronic signature was affixed by that person with the intention of signing or approving the electronic document unless the person relying on the electronically signed electronic document knows or has notice of defects in or unreliability of the signature or reliance on the electronic signature is not reasonable under the circumstances.
FIRST ISSUE: Comelec Bid Bulletin No. 10 27 April 2009 Public Bidding / 2010 Elections Automation Project, dated 15 April 2009, states: “The digital signature shall be assigned by the winning bidder to all members of the BEI and the BOC (whether city, municipal, provincial, district). For the NBOCs, the digital signatures shall be assigned to all members of the Commission and to the Senate President and the House Speaker. The digital signature shall be issued by a certificate authority nominated by the winning bidder and approved by the Comelec.”
There were fears at that time that if Smartmatic gets a copy of the secret keys of the BEIs, it would theoretically have the power to change the ERs. Smartmatic did not pinpoint a trusted third party, Digital Certificate Authority, up to the time of the SECOND ISSUE.
SECOND ISSUE: Comelec Resolution 8786, dated March 4, 2010, no longer required the use of digital signatures. The Resolution stated:
"WHEREAS, there is a need to amend or revise portions of Resolution No. 8739 in order to fine tune the process and address procedural gaps;
x x x x x x x x
SEC. 40. Counting of ballots and transmission of results
f) Thereafter, the PCOS shall automatically count the votes and immediately display a message ‘WOULD YOU LIKE TO DIGITALLY SIGN THE TRANSMISSION FILES WlTH A BEI SIGNATURE KEY?’, with a ‘YES’ or 'NO’ option;
g) Press ‘NO’ option. The PCOS will display ‘ARE YOU SURE YOU DO NOT WANT TO APPLY A DIGlTAL SIGNATURE?’ with a ‘YES’ and ‘NO’ option;
h) Press ‘YES’ option.”
WHY WOULD COMELEC SUDDENLY REMOVE THIS VERY IMPORTANT FEATURE OF THE SYSTEM?
1. The Bid Bulletin Specifications required Digital Signatures to be available by 11 November 2009 to Comelec personnel, from BEIs to the Board of Canvassers to the Operators of the Comelec Server, its back-up and to the Servers of the dominant majority, minority, accredited citizens arm and KBP- for lab and field test, mock election test, testing and sealing, and on election day.
2. The Technical Specifications in the same Bid Bulletin required:
" Component 1A- Election Management System (EMS)
2. The system shall require authorization and authentication of all users, such as, but not limited to, usernames and passwords, with multiple user access levels. (For customization)"
"Component 1B- Precinct-Count Optical Scan (PCOS)
7. The system shall require authorization and authentication of all operators, such as, but not limited to, usernames and passwords, with multiple user access levels."
"Component 1C- Consolidation/Canvassing System (CCS)
The consolidation/canvassing system (CCS) shall be secure, fast, accurate, reliable and auditable, and able to:
1.12 Allow the BOCs to digitally sign all electronic results and reports before transmission;"
3. Makati Rep. Teodoro Locsin said on 26 May that he was wrong in his position on the absence of the digital signatures of the Boards of Election Inspectors on the election returns. Locsin, at the hearing of the House committee on suffrage and electoral reforms, said the digital signatures of the precinct count optical scan machines were enough compliance with the law. He had said earlier that the BEIs should have encoded their own signatures on the electronically transmitted results. "I admit I was wrong. There is a real reason why a PCOS signature is a practical equivalent of a digital signature," he said.
RA 9369 AND RA 8792 RECOGNIZED PEOPLE, NOT MACHINES, AS AUTHENTICATORS THROUGH DIGITAL SIGNATURES. COMELEC HAD THE SAME PRESCRIPTION IN ITS BID BULLETIN AND ITS PRONOUNCEMENTS until that issuance of Comelec Resolution 8786.
4. Observers are at a loss as to the valid operational justification to remove the digital signatures of the BEIs.
The Comelec was quoted as saying "the move [not using the digital signatures] was aimed at removing one step in the transmission process to minimize human intervention and protect the results of the balloting.
Will three keys to be entered prior to transmitting significantly delay the transmission process, given that the transmission has been observed to take several minutes?
Was the intent to protect the results and provide comforting assurance? Indeed what happened in minds of objective observers is the REVERSE. No assurance can be made that the transmitted results are the same as the actual votes.
5. The Philippine Computer Society (PCS) disclosed that Comelec considered the i-button key of the BEI Chairman and the PINs of the two BEI members as sufficient equivalents for a digital signature.
The PCS members did not agree that the i-button and PIN features were sufficient to protect the authenticity, integrity, confidentiality and veracity of the transmission of the ERs. It was their consensus that these features were not the security features contemplated by RA 9369.
MAJOR IMPLICATIONS:
1. There was a significant divergence from the law, including non-compliance with the provisions of the Bid and the Automation Contract.
2. There is now a dark cloud on the authenticity, integrity, confidentiality, veracity and accuracy of the vote counts in the ERs.
3. The process prejudices the entire electoral process. Several voting result irregularities, discrepancies in printouts vs. transmitted results, malfunctioning of PCOS machines, slowdown in transmission, and worse, reports of unauthorized vote shaving and changing for a fee, have come into light.
2. THE NUMBER OF DISENFRANCHISED VOTERS IS SUFFICIENT TO AFFECT GREATLY THE RESULTS OF THE ELECTIONS.
Voters Lists were posted on the walls outside the clustered precincts (with a maximum of 1000 registered voters) only on voting day.
Although precinct assignments were mailed to individual voters by barangay captains, most received theirs late in the voting day or not at all. Voters have great difficulty in locating and identifying their clustered precincts. Long queues developed with voters waiting several (from one to six) hours before voting. As a result, many, especially women and the elderly, decided to forego voting.
Comelec's consultant on queue management estimates the number of disenfranchised voters to range from 2 million to 8 million.
This number can easily affect the results in the presidential, vice presidential and senatorial race especially the close ones.
3. THE AUTOMATED ELECTION SYSTEM (AES) WAS IMPLEMENTED LIVE WITHOUT THE APPROPRIATE FIELD TESTING, AND LAW-SPECIFIED TESTING IN ACTUAL ELECTIONS.
RA 9369 SEC. 6 states "for the regular national and local election, which shall be held immediately after effectivity of this Act (in 2007), the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao ..."
"In succeeding regular national or local elections, the AES shall be implemented nationwide."
Furthermore, the Bid Specifications, Annex E, stated that "There shall be as many field tests as may be necessary until the requirements for the tests have been satisfied provided that the tests shall not go beyond December 5, 2009. All systems shall be tested on site, i.e. in selected locations nationwide covering different test voting centers, test consolidation sites, and test canvassing sites. The test shall also include live transmission of precinct results. COMELEC personnel shall operate all systems in the test."
No such tests were conducted by December 5, 2009. In fact, a precinct test using 10 sample ballots were conducted in selected precincts starting in February 2010. No field tests in an entire municipality, city and even province were conducted. This is further aggravated by the fact that 4,690 polling centers have no cell phone signal from telecommunication firms affecting about 5 million registered voters.
Worse, on May3, seven days before elections, Comelec and Smartmatic discovered malfunctioning of Compact Flash cards with erroneous votes for local elections. They hurriedly imported new ones and reconfigured all 76,340 CF cards for use in May 10. This reconfiguration action was not fully tested and certified, thereby resulting in documented irregularities where precinct transmissions showed 10 votes (used during the testing) and other unexplained wrong data in many ERs.
4. THE SOURCE CODE REVIEW WAS NOT COMPLETED AND INITIAL FINDINGS WERE NOT ADDRESSED.
Comelec commissioned SysTest Lab of the USA to review the source code. SysTest Lab, after three months, submitted a report with some 4,000 comments for action by Comelec. There was no official announcement by Comelec whether these SysTest comments were addressed.
Comelec also opened up to political and other interested parties the review of the source codes in February 2010. No one agreed to it as only a part of the source code was made available, and one month's time was given. To the parties, it would not be a real source code review but only a walk-through.
The lack of transparency in this source code review, among others, led the Supreme Court to order Comelec to produce the relevant documentation on these items.
The non-transparent action led to suspicions and worries by citizen watchdogs that insufficient testing and checking would happen—leading to the use and non-recognition of a malicious code, the emergence of irregularities, and possible manipulation of the vote results. Simple mistakes like registered voters reaching 153 million in the House server are indicators of such probable errors.
5. NO AUDIT WAS DONE ON THE AES PRIOR TO THE ELECTIONS. THERE WAS ONLY A MANDATED RANDOM MANUAL AUDIT THAT, UP TO THIS WRITING, HAS NOT BEEN COMPLETED.
RA 9369 Sec. 24 Random Manual Audit states "Where the AES is used, there shall be a random manual audit in one precinct per congressional district randomly chosen by the Commission in each province and city. Any difference between the automated and manual count will result in the determination of root cause and initiate a manual count for those precincts affected by the computer or procedural error."
A Random Manual Audit (RMA) was conducted for 5 precincts for each congressional district or a total of 1,145 of the 76,340 precincts nationwide.
The RMA precincts were raffled 12 noon of election day but the choice of the RMA precincts was made public only after the close of voting. As observed in Pampanga, the RMA in one precinct in Telabastagan was started at 8pm election day and the results were not disclosed to the observers.
The results of 30 RMA precincts were released and announced as of 15 May 2010. Last 20 May, Comelec announced results of about 300 RMA precincts were completed with few discrepancies.
PPCRV and Comelec announced some .07% discrepancies in about 400 ERs audited as of 21 May. No target completion was announced.
This should be compared to the Bid Bulletin Specifications "Component 1B- PCOS Machine -
10. The system shall count the voter’s vote as marked on the ballot with an accuracy rating of at least 99.995 %."
If in 400 ERs audited, .07% discrepancy is noted, how much more discrepancy can be expected for the rest of the 76,340 ERs?
6. SEVERAL VOTER AND SECURITY FEATURES WERE DISABLED PRIOR TO THE ELECTIONS.
5.1 RA 9369, SEC. 7. requires "Minimum System Capabilities ... (e) Provision for voter verified paper audit trail;" so the voter can verify whether his votes were the same as those read and counted by the PCOS machine. The AES disabled this feature. The voter was only notified that his vote was read through the word "CONGRATULATIONS" shown in the PCOS LCD.
5.2 The same section requires "(k) Data retention provision;"
A memory card and Compact Flash Card designed to maintain the copy of the vote data and precinct, candidates’ data per PCOS.
Comelec was reported to have started destroying the CFC cards 15 May.
5.3 The AES disabled the Ultra Violet scanning capability (to detect fake and unauthorized ballots) of the PCOS when Comelec discovered that the ink used in printing the ballots were not sufficiently dense to be read by this UV scanner.
Instead, Comelec procured 76,340 UV handheld scanners to take the PCOS UV feature. However, during the elections, the UV lamps were not used.
CONCLUSION AND RECOMMENDATIONS:
There has been a noticeable improvement in the peace and order aspects of the elections compared to past national elections. There was initial satisfaction with the early voting results. BUT later events put to question the authenticity, integrity, confidentiality, veracity and accuracy of the vote counts in the ERs. The dark cloud rose from disabling critical, legally specified security features, particularly relating to the digital signatures. Thus, no one (both perceived winners and losers) can be sure whether the vote results are true and correct, and reflect the real will of the Filipino people.
Accordingly, the Election Observers Team of Global Filipino Nation challenges the legitimacy of the election results.
To resolve this very critical issue, GFN recommends the following:
1. In the short-term, impound PCOS machines, the memory and CF cards, and perform forensics on these using the actual ballots.
2. Comelec would promptly comply with Supreme Court directing the Comelec to make public the documents requested by Petitioner about Comelec's preparation and compliance with the requirements of the law.
3. An independent, non-partisan qualified party would conduct a full-blown audit of the Automated System (including recommended improvements to include automated registration, purging of voters lists, precinct mapping, and Internet Voting) as inputs to the Advisory Council. The audit should cover:
a. Compliance with RA9369 and other related legal issuances covering national and local elections;
b. Compliance with the Terms of Reference and Project Specifications of the Bid;
c. Reasonableness of Pricing and Expenses involved in the Project vs. Contract, and approved changes;
d. Evaluation of the Technology used;
e. Evaluation of Internal Controls of the System; and
f. Evaluation of Performance by Comelec and Smartmatic management and project staff.
4. With the lessons learned in the automation of 2010, the following projects should be pursued in time for the 2013 elections:
a. As a priority, complete the computerization of the Automated Fingerprint Information System (AFIS), started by Comelec several years ago, to complete and purge the Registered Voters List.
b. Complete the computerization of the Voters Registration Information System (VRIS) and that of the Project of Precincts (POP) in order to prevent disenfranchisement, "flying and ghost" voters, and "ghost" precincts.
c. Finalize the amendments and corresponding Implementation Rules and Regulations for RA 9369.
GLOBAL FILIPINO NATION is a non-partisan international organization of offshore and onshore Filipinos in 30 countries committed to "Building the Global Filipino Nation for Good Governance." It has been active for more than eight years in major governance issues such as The Overseas Absentee Voting Law, the Dual Citizenship Law, economic initiatives, and social issues and programs for migrant workers.
GFN 2010 ELECTIONS OBSERVERS TEAM
The GFN Team covered municipalities and cities in Pampanga, Quezon and Iloilo.
1. Victor S. Barrios is an international banker and economist. He has served as Sr. Adviser to initiatives of multilateral financial institutions in over a dozen countries in Eastern Europe and Asia. He is a Convenor of Global Filipino Nation.
2. Jun S. Aguilar, an OFW entrepreneur, is an engineer by profession who has served various international companies in the Middle East for 13 years. He is CEO-President FMW Group Holdings Inc., Chair of the Filipino Migrant Workers Group and Convenor of Global Filipino Nation.
3. Theodore B. M. Aquino, a California Registered Civil Engineer and a Global Filipino Nation Convenor, is a strong advocate for Filipino Dual Citizenship rights and good governance. He has his own consulting engineering practice in California and in several occasions provided pro bono consulting services to the Republic of the Philippines through the UNDP TOKTEN (Transfer of Knowledge Through Expatriate Nationals) Programme.
4. Elsa A. Bayani served as an RN from U.K. and U.S.; Arkansas State Chair of National Federation of Filipino American Association; and TV host Fox Network Asian American Focus, Little Rock Arkansas. An advocate for children in prison, youth and the elderly, she serves as Chairman of Our Barangay Inc. to connect 42,000 barangays to the Internet and a Convenor of Global Filipino Nation.
5. Tim C. Bayani, a registered criminologist, served the Arkansas State Dept. of Correction and Phil. National Police Commission. He was the Dean of Criminology Manila College. He is a member of the FBI-Law Enforcement Executive Dev. Association.
6. Robert Ceralvo’s company provides wifi products/services to projects in the US, notably Google. He has been in the IT industry for almost thirty-years and founded several start-ups. He has been actively involved with IT organizations and a Global Filipino Nation Convenor. His motto is: Technology to the People.
7. Romeo Z. Cayabyab is a Sydney-based audit consultant and university lecturer specializing in treasury operations, risk management, systems and operations control. He is also the founder and publisher of the emanila.com group of websites including TheFilipinoAustralian.com.
8. Hermenegildo R. Estrella, Jr. is a Management Systems Advisor for public and private consulting projects. He held senior management positions in IBM Philippines, Ayala Investment and Development, and Citibank. He is currently a Board Member and Officer of My Wellness City and SIETAR Philippines. He served as the IT/Election Specialist/Consultant of the Global Filipino Nation Foreign/ Election Observers Group.
ANNEX 1. INTERIM DETAILED ASSESSMENT
This Interim Assessment of the 2010 national elections can be divided into two areas:
1. Performance of Comelec and its deputized agencies vis-a-vis their roles, and in comparison with their performances in the 2004 national and 2007 local elections.
2. Performance of Comelec's Automated Voting, Consolidating and Canvassing System (referred to as the Automated Election System or AES) procured from Smartmatic-TIM compared to the actual live System implementation, provisions of RA9369 governing such automation, System contract between Comelec and Smartmatic-TIM, System Project Management, and the System deliverables.
TABLE I. PERFORMANCE OF COMELEC AND ITS DEPUTIZED AGENCIES
| CRITERIA | ACTUAL 2010 | 2004 /2007 | 2010 ASSESSMENT |
| 1. Comelec | | | |
| 1.1 Registration of Voters Purging of Lists | Regular procedures with automated registration using biometrics. Comelec claims purging of some 70,000 of voters in current voter list | Regular procedures with automated registration using biometrics. Comelec claims purging of a similar number of voters in that year's voter list | No significant improvement vs. 2004/2007 |
| 1.2 Voter Verification / Checking of Names in Comelec Lists and Precinct Assignments | Voters Lists were posted on the walls outside the clustered precincts (several established precincts into one clustered precinct for a maximum of 1000 registered voters) only on voting day. Precinct assignments were mailed to individual voters by barangay (but mostly received during voting day only) Comelec website provides finder capability for precinct assignment per voter. | Voters lists were posted on the walls outside of each established precinct (up to 300 voters per precinct) prior to the voting day. No mailing of precinct assignments. | Voters have great difficulty in locating and identifying their clustered precincts. Long queues developed with voters waiting several hours before voting. The estimated number of disenfranchised voters in the election may range from 2 million to 8 million, according to Comelec's consultant on queue management. This number may have affected the results in the presidential, vice presidential and senatorial results. |
| 1.3 Voting and Canvassing (please see Table II) | | | |
| 1.4 Release of Results (time) | 80% of precinct votes reported by 13 May Several winning local officials proclaimed starting 13 May 90% reported by 17 May 9 senators proclaimed 17 May. | Voting results completed after more than a month | Faster results at precinct and municipal/city level than 2004/2007 |
| 1.5 Accuracy of Results | Most of declared winners follow the general trend of pre and post election surveys. Contract specified 99.99% accuracy. Two days after elections, several incidents of potential fraud and irregularities were reported, documented and protests filed (starting 17 May) | 2004 national results questioned with investigations ending up with "Hello Garci" investigations in 2005 to 2006. (No resolution yet.) 2007 (12th position) senatorial results questioned and pending resolution. | In suspense following announcement of Random Manual Audits and resolution of filed cases. With the assessments in Table 2, and awaiting a full blown audit, this criterion awaits resolution. |
| | | | |
| 2. Department of Education | | | |
| 2.1 Performance as Board of Election Inspectors | Performed their assigned jobs despite procedural difficulties and long voter queues to serve | Performed their assigned jobs despite incidents of violence and related electoral pressures | BEIs have shown their best under pressure |
| | | | |
| 3. Philippine National Police | | | |
| 3.1 Maintenance of Peace and Order | Very few incidents of reported electoral violence. | Has a high level of reported of electoral related incidents, especially in Mindanao in the 2007 elections | More peaceful and orderly than 2004/2007 |
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| 4. Armed Forces of the Philippines | | | |
| 4.1 Maintenance of Peace and Order | No reported incidents | | |
| 4.2 Involvement in the elections | No reported involvement in election fraud. | Claimed involvement in 2004 elections, | Better performance in 2010 |
TABLE II. PERFORMANCE OF THE COMELEC AES
| MAJOR CRITERIA | REQUIREMENT | COMELEC PERFORMANCE | ASSESSMENT |
| 1. Republic Act 9369 | | | |
| 1.1 Sec 3 and 5. IT-capable person | Trained and certified by DOST; at least one member of the BEI, and to assist the BOC | In the observed Pampanga voting centers, only one IT person (no certification shown) covered one voting center consisting of several clustered precincts | |
| 1.2 Sec 6. Use of AES | "for the regular national and local election, which shall be held immediately after effectivity of this Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao ..." "In succeeding regular national or local elections, the AES shall be implemented nationwide." | There was no use of the AES contracted in July 2009 in two urbanized cities and two provinces each in Luzon, Visayas and Mindanao. The AES was IMPLEMENTED LIVE NATIONWIDE in the 2010 elections. | This is dangerous as Comelec's non compliance means an untested and unaudited system will be implemented LIVE. May lead to unforeseen difficulties and erroneous results. |
| 1.3 Sec 7. Minimum System Capabilities | (a) Adequate security against unauthorized access (b) Accuracy in recording and reading of votes as well as in the tabulation, consolidation/canvassing, electronic transmission, and storage of results; (c) Error recovery in case of non-catastrophic failure of device; (d) System integrity which ensures physical stability and functioning of the vote recording and counting process ; (e) Provision for voter verified paper audit trail; (f) System auditability which provides supporting documentation for verifying the correctness of reported election results; (g) An election management system for preparing ballots and programs for use in the casting and counting of votes and to consolidate, report and display election result in the shortest time possible; (h) Accessibility to illiterates and disabled voters; (i) Vote tabulating program for election, referendum or plebiscite; (j) Accurate ballot counters; (k) Data retention provision; (l) Provide for the safekeeping, storing and archiving of physical or paper resource used in the election process; (m) Utilize or generate official ballots as herein defined; (n) Provide the voter a system of verification to find out whether or not the machine has registered his choice; and (o) Configure access control for sensitive system data and function. "In the procurement of this system, the Commission shall develop and adopt an evaluation system to ascertain that the above minimum system capabilities are met. This evaluation system shall be developed with the assistance of an advisory council." | Passwords for the BEI were provided. No observed passwords for the IT personnel. Digital signatures were required but within two months before the elections, these were not used. Use of encryption in transmission announced but an incompletely secure transmission scheme is made available, but not utilized in the elections. UV reading by PCOS earlier provided but later was disabled when ink density of the ballot was found inadequate. An external, handheld UV lamp was procured to check on the authenticity of a ballot. Tests using 10 sample ballots were made after the May 3 erroneous Compact Flash cards (CFC) field tests. Not all tests in 76,340 precincts where supposedly all CFC were reconfigured and replaced, were completed and announced. Transmission tests were not conducted as stated by Provincial Election Supervisor, Regional Election Officer and his Deputy. Back up PCOS machines are used within a province. Only a UPS is provided to ensure the PCOS will not lose power. Voter only notified in the PCOS screen that his vote is read. The announced capability for the voter to verify that his vote choices were recorded by the PCOS was disabled. Only the word "CONGRATULATIONS" was shown in the PCOS LCD. NO VOTE RECEIPT WAS PROVIDED FOR. Only a printed Election Return tape was prepared after the counting. A Random Manual Audit was conducted for 5 precincts for each congressional district or a total of 1,145 of the 76,340 precincts nationwide. An Election Management System module was provided. No prior tests were made instead implemented LIVE immediately. No specific tests were made. Election Return tapes were printed out (see item f above) Tested under item b above. A memory card and CFC card designed to maintain the copy of the vote data and precinct, candidates’ data per PCOS. Comelec provided facilities for storing their copies of the paper tapes, and the used ballots, unused ballots and other paper paraphernalia. Printed official ballots at the National Printing Office. Same as item e above. See item a above. An evaluation system was provided but not announced nor released. | This is leading to a Legal standoff as to the authenticity, reliability and accuracy of the vote results. The UV lamps were not provided nor used in the Pampanga precincts. There were reports that stated some ERs contain votes of 10 voters, meaning that the votes transmitted were the test votes. 30 copies of the ER were printed for each precinct and distributed to authorized parties. The results of 30 RMA precincts were released and announced as of 15 May 2010. Last 20 May, Comelec announced results of about 300 RMA precincts were completed with few discrepancies. Comelec was reported to have started destroying the CFC cards 15 May. |
| 1.4 Sec 8. Communication Channels for Electronic Transmissions | all electronic transmissions by and among the EAS and its related components shall utilize secure communication channels ... to ensure authentication and integrity of transmission." | 4,690 polling centers have no cell phone signal from telecommunication firms affecting about 5 million registered voters. 5,600 Broadband Global Area Network (BGAN) equipment and 680 Very Small Aperture Terminals have been assigned to these areas. See item 1.3 b above. No specific authentication and integrity check were released and announced regarding the public telecom facilities and facilities utilized. Only 40,000 modems were contracted to allow transmissions. | No announced results of testing these facilities. Slowdown in transmission was noticed three days after elections. As observed in Pampanga, there was only one modem used by several precincts in a voting center, thus delaying transmission. Transmission in observed precincts in Pampanga took about 30 minutes per ER. |
| 1.5 Sec 9. Technical Evaluation Committee | The Committee shall certify, through an established international certification entity to be chosen by the Commission from the recommendations of the Advisory Council, not later than three months before the date of the electoral exercises, categorically stating that the AES, including its hardware and software components, is operating properly, securely, and accurately, in accordance with the provisions of this Act based, among others, on the following documented results: 1. The successful conduct of a field testing process followed by a mock election event in one or more cities/municipalities; 2. The successful completion of audit on the accuracy, functionally and security controls of the AES software; 3. The successful completion of a source code review; 4. A certification that the source code is kept in escrow with the Bangko Sentral ng Pilipinas; 5. A certification that the source code reviewed is one and the same as that used by the equipment; and 6. The development, provisioning, and operationalization of a continuity plan to cover risks to the AES at all points in the process such that a failure of elections, whether at voting, counting or consolidation, may be avoided. "If the Commission decides to proceed with the use of the AES without the Committee's certification, it must submit its reason in writing, to the Oversight Committee , no less than thirty (30) days prior to the electoral exercise where the AES will be used. | Comelec commissioned SysTest Lab of the USA to review the source code. Comelec also opened up to political and other interested parties the review of the source codes. The source code copy was put in escrow at the Central Bank. Bid Specifications "Annex E" stated that "There shall be as many field tests as may be necessary until the requirements for the tests have been satisfied provided that the tests shall not go beyond December 5, 2009. All systems shall be tested on site, i.e. in selected locations nationwide covering different test voting centers, test consolidation sites, and test canvassing sites. The test shall also include live transmission of precinct results. COMELEC personnel shall operate all systems in the test. No certification issued. See above comment re SysTest. Announcement made. No certification announced. No announcement. No announcement. | SysTest Lab submitted a report with some 4,000 comments for action by Comelec. No official announcement by Comelec whether these SysTest comments were addressed. The lack of transparency by the Comelec led the Supreme Court to order Comelec to produce the relevant documentation on these items. This action of Comelec led to suspicions and worries by citizen watchdogs that insufficient testing and checking are happening, that may lead to irregularities and possibly manipulation of the vote results. Tests were conducted only at precinct level. |
| 1.6 Sec 10. Procurement of Equipment and Materials | With respect to the May 10, 2010 election and succeeding electoral exercises, the system procured must have demonstrated capability and been successfully used in a prior electoral exercise here or board. Participation in the 2007 pilot exercise shall not be conclusive of the system's fitness. | The PCOS machine was not used in the ARMM and 2007 elections. In ARMM, two voting machines, the DRE and CCOS were used by two different contractors. | |
| 1.7 Sec 11. Continuity Plan | Activation of such continuity and contingency measures shall be undertaken in the presence of representatives of political parties and citizen's arm of the Commission who shall be notified by the election officer of such activation. "All political parties and party-lists shall be furnished copies of said continuity plan at their official addresses as submitted to the Commission. The list shall be published in at least two newspaper of national of circulation and shall be posted at the website of the Commission at least fifteen (15) days prior to the electoral activity concerned." | Not done. Although a Comelec Resolution was issued to cover these. Not know whether these were furnished. No copy published. | |
| 1.8 Sec 12. "Examination and Testing of Equipment or Device of the AES and Opening of the Source Code for Review" | The Commission shall allow the political parties and candidates or their representatives, citizens' arm or their representatives to examine and test. "The equipment or device to be used in the voting and counting on the day of the electoral exercise, before voting start. Test ballots and test forms shall be provided by the Commission. "Immediately after the examination and testing of the equipment or device, parties and candidates or their representatives, citizen's arms or their representatives, may submit a written comment to the election officer who shall immediately transmit it to the Commission for appropriate action. "The election officer shall keep minutes of the testing, a copy of which shall be submitted to the Commission together with the minute of voting." "Once an AES technology is selected for implementation, the Commission shall promptly make the source code of that technology available and open to any interested political party or groups which may conduct their own review thereof." | No test by the parties were made prior to the voting on election day. The only test made was after the reconfiguration of the CFCs using 10 sample ballots. No such minutes were made. | |
| 1.9 Sec 13. Official Ballot | The Commission shall prescribe the format of the electronic display and/or the size and form of the official ballot, which shall contain the titles of the position to be filled and/or the proposition to be voted upon in an initiative, referendum or plebiscite. | Comelec first made the list of candidates on a vertical list format but later shifted to a horizontal list per position. | |
| 1.10 Sec 17. Notice of Designation of Counting Centers | The election officer shall post prominently in his/her office, in the bulletin boards at the city/municipal hall and in three other conspicuous places in the city/municipality, the notice on the designated counting center(s) for at least three weeks prior to election day. The notice shall specify the precincts covered by each counting center and the number of registered voters in each of said precincts . The election officer shall also furnish a copy of the notice to the headquarters or official address of the political parties or independent candidates within the same period. The election officer shall post in the Commission website concerned the said notice and publish the notice in the local newspaper. Where the polling place or voting center is also the designated counting center, such information shall be contained in the notice. | No such lists were posted in the city/municipal halls, nor provided the political parties. Such lists were not also posted in the Comelec website nor published in the local newspapers. | |
| 1.11 Sec 18 and 19 Election returns | The Commission shall prescribe the manner and procedure of counting the votes under the automated system: Provided, that apart from the electronically stored result, thirty (30) copies of the election return are printed." | Comelec provided these in the BEI General Instructions; and printed 30 copies of the ERs. | Some protestors have shown ERs with "Citibank Mastercard" marks and had prior dates to elections, and several post dates marked. |
| A. Distribution of ER copies | (as above) | (as above) | |
| B. Electronic Transmission | "Within one hour after the printing of the election returns, the chairman of the board of election inspectors or any official authorized by the Commission shall, in the presence of watchers and representatives of the accredited citizens' arm, political parties/candidates, if any, electronically transmit the precinct results to the respective levels of board of canvassers, to the dominant majority and minority party, to the accredited citizen's arm, and to the Kapisanan ng mga Brodkaster ng Pilipinas (KBP). "The election results at the city/municipality canvassing centers shall be transmitted in the same manner by the election officer or any official authorized by the commission to the district or provincial canvassing centers. "The election returns transmitted electronically and digitally signed shall be considered as official election results and shall be used as the basis for the canvassing of votes and the proclamation of a candidate." | The BEI, in the observed voting centers of Pampanga, transmitted the vote results to the Comelec server, the PPCRV and KBP. The canvassed election results were transmitted to the Comelec server. | This transmission step of precinct to Comelec Server was not provided for by RA 9369. The problem would be that anyone in control of the Comelec Server would already know the trend of the voting prior to the precinct results going to the municipal/city as mandated. This is now the legal subject in the National Canvassing as digital signatures as required by RA 9369 were not purposely utilized upon orders of the Comelec. |
| 1.12 Sec. 20 Canvassing by Provincial, City, District and Municipal Boards of Canvassers | "Within one hour after the canvassing, the Chairman of the district or provincial Board of Canvassers or the city board of canvassers of those cities which comprise one or more legislative districts shall electronically transmit the certificate of canvass to the commission sitting as the national board of canvassers for senators and party-list representatives and to the Congress as the National Board of Canvassers for the president and vice president, directed to the President of the Senate. "The Commission shall adopt adequate and effective measures to preserve the integrity of the certificates of canvass transmitted electronically and the results in the storage devices at the various levels of the boards of canvassers. "The certificates of canvass transmitted electronically and digitally signed shall be considered as official election results and shall be used as the basis for the proclamation of a winning candidate." | The canvassed election results were transmitted first to the Comelec server, then to the various canvassing centers. No such measures were released nor announced. Comelec Resolution 8786 instructed the BEIs not to indicate their digital signatures for the transmission. | In the first hours of canvassing in the City of San Fernando, what was shown in the projected canvass, after the election, were only the number of precincts reporting without vote results. See 1.11 B above assessment. |
| 1.13 Sec. 24 Random Manual Audit | Where the AES is used, there shall be a random manual audit in one precinct per congressional district randomly chosen by the Commission in each province and city. Any difference between the automated and manual count will result in the determination of root cause and initiate a manual count for those precincts affected by the computer or procedural error." | Same as item 1.3 f above. The RMA precincts were raffled 12 noon of election day. As observed in Pampanga, the RMA in one precinct in Telabastagan was started at 8pm election day. | Same as item 1.3 f above. PPCRV and Comelec announced some .07% discrepancies in about 400 ERs audited as of 21 May. No target completion was announced. |
| 1.14 Sec. 26 Stakeholder education and training | The Commission shall, not later than six months before the actual automated election exercise, undertake a widespread stakeholder education and training program, through newspaper of general circulation, radio, television and other media forms, as well as through seminars, symposia, fora and other nontraditional means, to educate the public and fully inform the electorate about the AES and inculcate values on honest, peaceful, orderly and informed elections. | Comelec initiated the stakeholder education and training program together with concerned peoples' groups and organizations through print, radio and TV media. | |
| 1.15 Sec. 30 Rules and Regulations | The Commission shall promulgate rules and regulation for the implementation and enforcement of this Act. | No implementing rules and regulations were provided for the implementation and enforcement of this Act. | |
| | | | |
| 2. Contract Between Comelec and Smartmatic-TIM | | | |
| 2.1 Compliance to RA9369 provisions | | Contract indicated provisions and attachments that comply with RA 9369, the Terms of Reference and Project Specifications of the Bid. | As stated in the various items in this column, there were many required specifications that were disregarded, disabled and not provided for in the actual implementation. |
| 2.2 Reasonableness of Pricing | Total Smartmatic Contract is P7,191.4 million 10%: Project Initialization, Set up Project Management Team and Project Systems including all SW licenses and firmware- P719 million 5%: Delivery of Development Set (20 PCOS units)- P359 million 5%: Report on Transmission and Logistics- P359 million 5%: Delivery of Functional System and Software- P359 million Project Management- P99.9 million 82,200 PCOS machines (lease) – P3,346 million Total software – P42 million Electronic Transmission – P199.9 m Logistics – P916 million | Comelec agreed to all these pricing provisions. | Although this pricing is below the P11,230 million budget, there are certain items that are way above industry price levels. This will be difficult to justify considering it is only initialization and set-up, and considering the main software is only P42 million. The cost of 20 PCOS units is about P1.0 million. The balance of P358 million would be difficult to justify. The actual services and equipment for transmission is only P199.9 million, logistics is P916 m, so it would again be difficult to justify such as report. The Project is for a year, and certainly this amount is extravagant as no such Project team would justify such an amount for their services. One PCOS is leased for P45,419, which is almost the purchase price of one available in the market, further should be lower as a big volume is ordered. |
| 2.3 Compliance to contract provisions | See items 3 and 4 below. | See items 3 and 4 below. | See items 3 and 4 below. |
| 3. Project Management | | | |
| 3.1 Project Manager | Requirement for the Project Manager: · Minimum fifteen (15) years relevant IT experience; · At least ten (10) years experience in managing large-scale multi-site IT development and implementation projects involving relational databases and wide area networks; · With actual experience in assisting in the bid processes of any government agency following RA 9184 – Philippine government procurement rules, regulations and processes | No Project Manager of Smartmatic has been identified, shown nor quoted during the entire election period, up to the present. | Questions arising from the IT community have been raised whether the Smartmatic and Comelec Project Managers are really qualified and experienced to perform the required work, as shown by project delays and non-compliance to key and critical aspects of the automation. |
| 3.2 Completion of planned activities | A time schedule was posted in the Comelec website. | There had been delays in the deliveries of the PCOS machines and completion of activities. Light penalties were charged to Smartmatic. | These delays led to insufficient testing, to note particularly the one that led to the Monday May 3 episode that rushed the Final Testing and Sealing of the PCOS machines and reconfigured CF cards. Such delays are now being considered as critical to the resolution of protests regarding irregularities found out in the voting results. |
| 4. Deliverables | | | |
| 4.1 Compliance to quality of project specifications | Several certifications were required and specified. | Only the certification by SysTest was announced but not published. | Lack of transparency by Comelec and Smartmatic on these requirements puts to doubt the test quality and implementation results of the whole system. |
| 4.2 Adherence to timetables | See item 3.2 above | See item 3.2 above | See item 3.2 above |
| Canvass and proclamation of winners | As provided for in the Project Timetable: Finish by 05.13.10 | | Canvass about 90% by 17 May Proclamation of 9 of 12 senators made 17 May. |
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