Introduction
Twenty
years ago in 1997, our country saw the promise of “transparency, credibility,
fairness and accuracy of elections,” when Congress enacted Republic Act No. 8436[i]
authorizing the use of an automated election system for national and local
elections. Ten years later in 2007, Congress further improved the automated
election law by enacting Republic Act No.
9369[ii].
Come
2010, 2013 and 2016, when the Commission on Elections (COMELEC) finally used an
automated election system for the national and local elections, the
implementation has become so questionable and frustrating, that no voter now
knows for sure if the votes generated by the electronic devices were in fact
the votes cast manually by the voters.
Democracy
appears to have turned full circle, finding itself in the same state of
disbelief as it was before the automation. There are those who say that we are actually
in a worse state now. While in manual voting the votes cast through paper
ballots were read in public, in electronic voting the public has no means whatsoever
to verify if indeed the votes generated electronically are in fact the votes
cast manually.
This
tattered state of democracy in the country can be traced to the manner by which
the automation law was implemented by COMELEC, its contractor/supplier
Smartmatic-TIM Corporation and the foreign technology provider, Smartmatic International Corporation.
Safeguards established by law
Before
we go into the implementation of the automation process, it is best to remind
ourselves that “public office is a trust,”[iii]
that “public officers and employees must at all times be accountable to the
people,”[iv]
that Congress is directed to secure the “sanctity of the ballot,”[v]
and that COMELEC is mandated to “enforce and administer all laws and
regulations relative to the conduct of an election.”[vi]
With
these principles in mind, Congress clad the automated election laws with both
electronic and manual safeguards against computerized cheating. Among others,
the electronic safeguards include the (1) source code review[vii],
(2) ballot verification[viii],
(3) vote
verification[ix],
(4) digital
signature[x],
while the manual safeguards include the (5) random manual audit[xi],
and (6) voter’s receipt[xii].
The Supreme Court also acknowledged another manual safeguard, the (7) Exit
Polls[xiii].
Among
the various legal safeguards, the most important appears to be the digital signature. This is the one and
only safeguard that the automated election laws tie directly to the validity of
election results, canvassing of votes and proclamation of candidates.
As
the laws expressly provide, “election returns transmitted electronically” MUST
be “digitally signed” in order to “be considered
as official election results” and “used as the basis for the canvassing of votes and the proclamation of a
candidate.”[xiv]
By
necessary implication, “election returns transmitted electronically” but NOT
“digitally signed” CANNOT “be considered as official election results” and
CANNOT be “used as the basis for the canvassing of votes and the proclamation
of a candidate.”[xv]
Notably,
the old election laws that
provided for the manual counting of votes, enjoined the members of the board of
election inspectors (BEI) to sign or affix their signatures to the election
returns.[xvi]
In similar manner, the present automated election laws enjoin the members of
the BEI to sign or affix their digital
signatures to the election returns transmitted electronically.[xvii]
The
legal theory of the critical value of digital
signatures is backed by concrete experience. In Biliran of 2010, official COMELEC
documents consisting of audit logs (PCOS machines), print logs (municipal
servers) and others showed the following: (1) the anomalous electronic
transmission and receipt of election returns from a closed clustered precinct;
(2) the anomalous double electronic transmission and receipt of election
returns from one clustered precinct but using two different IP addresses; and
(3) the anomalous double use of one IP address for two different clustered
precincts in the electronic transmission and receipt of election returns.
Considering however that
all election returns transmitted electronically had no digital signature, the
authentication of the identity of the sender and integrity of the data electronically
transmitted, was systematically hampered. The entire process involving the
electronic transmission of election returns was virtually anonymous and
untraceable.
To
stress, digital signatures are
intended to authenticate the identity of the sender (i.e. Board of Election
Inspectors and Board of Canvassers), and secure the integrity of the message
(i.e. Election Returns and Certificates of Canvass) in the course of electronic
transmission from the Vote Counting Machines (previously known as PCOS
[precinct count optical scan] machines) and the city/municipality canvassing
and consolidation servers.
This
electronic safeguard serves to protect the integrity of election results against
any and all network intrusion to surreptitiously change the results, whether
through “hacking” by outsiders or “tampering” by insiders (such
as personnel of COMELEC, Smartmatic-TIM, and Smartmatic International).
Safeguards disregarded by COMELEC
Going
now to the elections of 2010, 2013 and 2016, it cannot be denied that the
automation process has been compromised in the course of repeated
non-compliance and disablement of the basic legal safeguards, ironically by COMELEC
itself, its private contractor/supplier, and foreign technology provider. Here
are some of the glaring incidents:
(1)
No source code review.- In 2013, COMELEC Chairman
Sixto Brilliantes publicly admitted that the source code was NOT available for
review by interested political parties and groups.[xviii] The Solicitor-General
also admitted that the “review of the PCOS source code could not yet be carried
out due to the on-going legal dispute between Smartmatic and Dominion Voting
Systems (“Dominion”) in Delaware, USA.”[xix] While “(COMELEC)
was (eventually) able to secure the PCOS source code from Dominion,” and “on
May 9, 2013, the PCOS source code review was commenced in the Project
Management Office (“PMO”),” this “was temporarily suspended, however, to give
way to the forthcoming 2013 elections.”[xx]
(2) No ballot verification.- In 2010,
COMELEC disabled the built-in ultra violet lamps and ordered their replacement
with hand held or portable lamps[xxi].
However, they did not issue general
instructions to the BEI to guide them how to use the hand held lamp. In the
end, no lamp whatsoever was used to detect and reject fake ballots fed to the
PCOS machines.
(3)
No vote verification.- In 2010, 2013 and
2016, COMELEC in its resolutions never provided for any vote verification
function in the vote counting machines. For 2013, the Solicitor-General also admitted that the PCOS machine
did not show to the voter how it recorded the votes cast in the paper ballots.[xxii]
The
machines simply displayed the following words: “YOUR VOTE HAS BEEN REGISTERED”
or “YOUR VOTE HAS BEEN CAST.”[xxiii] These words are
obviously misleading. They do not inform the voter how the machine counted the votes
cast in the paper ballots.
(4)
No digital signature.- In 2010 and 2013, the COMELEC by its
resolutions expressly instructed the BEI not to sign or use digital signatures
in the electronic transmission of election returns.[xxiv]
For 2010, the National Computer Center (NCC) confirmed that they did not issue
digital signatures to COMELEC, nor did they accredit COMELEC or Smartmatic-TIM
as Certification Authority.[xxv] For
2016, the COMELEC Advisory Council (CAC) confirmed that no digital signatures
were issued to COMELEC, and that neither COMELEC nor Smartmatic-TIM has been
accredited as Certification Authority.[xxvi]
Also for 2016, the Executive Director of COMELEC, Atty. Jose Tolentino, admitted
that they were unable to secure from the Department of Science and Technology
(DOST) the key pair “digital signatures” with the appropriate digital
certificates.[xxvii]
(5)
No randomness in manual audit.- In 2010, the COMELEC by its resolution
selected the clustered precincts for manual audit at 12:00 noon of election day
or several hours before the close of the polls.[xxviii]
In 2013 and 2016, the COMELEC also by its resolution pre-selected the clustered
precincts to be audited 4 days before election day.[xxix]
For 2013, the Solicitor-General likewise
admitted that the clustered precincts to be audited were pre-selected before election
day.[xxx]
The premature selection, and worse the pre-selection, obviously negates the concept of randomness which refers to something
that does not follow any prearranged
order[xxxi].
In the context of an audit as security safeguard, randomness is essential to
avoid forewarning those who intend to breach security.
(6)
No voter’s receipt.- In 2010 and 2013, the COMELEC, its
private contractor/supplier and foreign technology provider never provided for
the voter’s receipt also known as the voter verified paper audit trail (VVPAT),
that though this safeguard was required by the automated election laws from the
beginning. The citizen advocates had to file and win a case in the Supreme
Court before the COMELEC and its technology provider would grudgingly implement
the voter’s receipt in 2016.[xxxii]
(7)
No rules on exit polls.- In Biliran of 2013, citizen advocates
set-up exit poll stations that shadowed the clustered precincts, to establish a
manual audit of the electronic count. By noon of election day, all exit poll
stations were dismantled by the policy deputized by the COMELEC.[xxxiii]
Notably, the Supreme Court has ruled way back in the year 2000 that exit polls
formed part of the freedom of speech and of the press.[xxxiv]
Considering however that COMELEC never issued regulations governing exit polls,
they virtually reserved the power to suppress legitimate exit polls with
seemingly unlimited discretion.
Impunity in disregarding safeguards
In view of the
wanton disregard of the safeguards established by the automated election laws, citizen
advocates swamped the courts and agencies with various petitions and
complaints. Unfortunately, among the many cases filed by different advocates since
2010 through the present, this writer recalls only two cases (related to the
integrity of the automated election system) that ended with favorable
decisions. These are as follows:
1. Aranas et al v. Municipal Election
Registrar et al.- This is an action
filed by registered voters with the trial court of Gapan City, Nueva Ecija to
open the ballots and manually count the votes of senatorial candidate Eduardo
Villanueva in the 2013 elections, on the ground that the electronic count in 3 clustered
precincts was mathematically improbable because the votes counted were less
than the number of the plaintiffs. After trial, the Court rendered its Decision
declaring that upon manual counting
of the votes appearing in official ballots in the 3 clustered
precincts, candidate Villanueva
garnered a total of 900 votes as against the official COMELEC count of only 781
votes.[xxxv]
2.
Bagumbayan, et al v. COMELEC.- This is a Petition for Mandamus filed with the Supreme Court to compel
the COMELEC to enable the Voter Verified Paper Audit Trail (VVPAT) security
feature in connection with the 2016 elections, pursuant to Section 6 (e) & (f) of Rep. Act No. 8436, as
amended by Sec.7 of Rep. Act No. 9369. After hearing, the Supreme Court granted the petition
and ordered the COMELEC to enable the VVPAT.[xxxvi]
On the other
hand, based on information gathered, the following proceedings or issues among
others, remain unresolved until today:
1. Philippine Computer Society, v.
Melo & Flores, et al.- This is a criminal and administrative complaint filed with the
Ombudsman, for various violations of the AES Law and the Anti-Graft &
Corrupt Practices Act, including the (a) disablement of digital signatures, and
(b) disablement of built-in ultra violet lamp, during the 2010 elections. Based
on information, the complaint remains pending.[xxxvii]
2. Biliran Kawsa v.
Flores & Melo, et al.- This is a criminal complaint filed with the PNP/CIDG for
"hacking" under Section 33 of the Electronic Commerce Law, based on
official documents showing the (1) electronic transmission and receipt of election
returns from a closed clustered precinct; (2) double electronic transmission
and receipt of election returns from one clustered precinct but using two different
IP addresses; and (3) double use of one IP address for two different clustered
precincts in the electronic transmission and receipt of election returns,
during the 2010 elections.
The complaint remains pending today.[xxxviii]
3. TanDem, et al v. COMELEC.- This is a petition filed with the Supreme
Court to declare the proclaimed candidates as de facto public
officers, subject to validation by manual count of all ballots cast, provided
there are no signs of tampering of said ballots, based on the following
grounds: (a) disablement digital signatures, (b) failure to make the source
code available for review, (c) disablement of the vote verification function,
and (d) nullification of the randomness of the manual audit, during the 2013
elections. The petition remains pending today.[xxxix]
4. FOIA Request for Disclosure of Information.- This is a
Request for Disclosure of Information filed with the Central Intelligence
Agency (CIA) pursuant to the U.S. Freedom of Information Act (FOIA), seeking
records of participation or monitoring by the Agency of the conduct by
Smartmatic International Corporation of the Philippine automated elections of
2010, among others. The request was denied on 01 July 2013, stating that the
existence or non-existence of such records was classified information. The
issue remains unresolved today.[xl]
5. TanDem & Bagumbayan,
et al v. Melo, Brillantes, De Villa & Flores, et al.- This is a
criminal and administrative complaint filed with the Ombudsman, for the (a)
disablement of digital signatures nationwide, (b) failure to open the source
code for review, (c) failure to provide for a vote verification process, and
(d) negating the randomness of the manual audit, constituting violations of the
AES Law and related laws, during the 2013 elections. The complaint remains pending
today.[xli]
With
these legal developments in mind, many citizen advocates have come to believe
that the judicial and legal remedies are ineffective, giving rise to the
perception of impunity in the repeated disregard of the safeguards established
by law, committed by no less than the COMELEC itself and its private contractor/supplier
and foreign technology provider.
Entities responsible for the automation
With this overview of the unresolved
problems and legal disputes surrounding the past three elections, let us now look
at the entities that are responsible for the automation process.
While COMELEC is primarily
responsible for the conduct of the elections as mandated by no less than the
Constitution,[xlii]
it is common knowledge that the agency contracted a private joint venture
company, Smartmatic-TIM Corporation,
to supply and service the automated election system, that in turn relied on its
foreign partner, Smartmatic International
Corporation, to provide the technology for the system.
Who is
Smartmatic?
Smartmatic-TIM Corporation is the joint
venture corporation of Total Information
Management Corporation (TIM) and Smartmatic
International Corporation (Smartmatic), that was engaged by COMELEC, to
provide an automated election system for the synchronized national and local
elections.[xliii]
Smartmatic (also referred as Smartmatic
Corporation or Smartmatic International); is
a Venezuelan-owned
multinational company that specializes in technology
solutions aimed at governments. It is organized around
producing electronic
voting systems, smart cities solutions
(including public
safety and public
transportation), and identity
management systems for civil
registration, as well as authentication for government applications.”[xliv]
As the joint
venture partner with the greater track
record in automated elections, Smartmatic
International was by government contract placed “in charge of the
technical aspects of the counting and canvassing software and hardware,
including transmission configuration and system integration,” and held “primarily
responsible for preventing and troubleshooting technical problems that may
arise during the election.”[xlv]
In connection with its
global operations, Smartmatic
International is acknowledged as a reliable vendor by the International Foundation
for Electoral Systems (IFES), an international, non-profit
organization founded in 1987. This Washington, D.C.-based
development organization provides assistance and support for elections in
new and emerging democracies.
Since 1987, IFES has provided assistance in 145 countries and it currently has
programs in over 30 countries throughout Asia-Pacific, Africa, Eurasia,
the Middle East and North Africa,
and the Americas.”[xlvi]
IFES, in its 2007 edition of the
Buyer’s Guide to Election Suppliers that aimed to support election managers
worldwide in their efforts to procure quality products and services for all
phases of the electoral cycle, listed Smartmatic, www.smartmatic.com, as among the reliable suppliers of automated
election systems, and published the following vendor statement[xlvii]:
“Smartmatic designs and deploys elections technology and
related services. We provide an end-to-end solution to automate any type of
electoral process. Smartmatic Automated Election Systems (SAES) is the most secure, reliable and auditable
voting system in the world.” (emphasis supplied)
IFES, being a non-profit
organization, receives
funding from the following donors (among others) as listed on its website,
among others:
U.S.
Government
·
Agency
for International Development
|
Regarding
the United States Agency for International Development (USAID), it has been the common impression that the said agency maintains a
close working relationship with the Central
Intelligence Agency (CIA), and
that officers of the CIA often operated abroad under USAID cover.[xlix]
The CIA, also known as “The Company,”[l] is a
civilian government agency of the United States of America. Created for
licit foreign intelligence gathering, it is widely perceived to engage in
illicit foreign intervention.[li]
Double Standard for Smartmatic
In 2006, the
Government of the United States, through its Committee on Foreign Investments
in the United States (CFIUS)[lii],
placed under national security investigation
the acquisition of Sequoia Voting Systems of California by the Venezuelan-owned
Smartmatic International for the
amount of US$16 million.[liii]
In 2007, the CFIUS investigation resulted in the divestment by Smartmatic International from Sequoia,
and effectively barred the company from doing business in the United States.[liv]
Curiously,
during the same year 2007, IFES the Washington D.C.-based non-profit
organization that receives funding from the USAID, listed the same company Smartmatic International as a reliable
vendor in its Buyer’s Guide to Election Suppliers that aimed to promote
automated election systems worldwide.
Obviously,
this double standard gives no comfort to those countries, including the
Philippines, where Smartmatic
International has taken full technical control of the automated election
system.
Challenge to Sovereignty and Democracy
If
we look back at the way the PCOS (now renamed VCMs) actually performed during
2010 Elections, we find no assurance whatsoever that the old practice of MANUAL “dagdag-bawas” has
not simply evolved into a new form of ELECTRONIC
“dagdag-bawas.”
We
recall that during the proceedings of the National Board of Canvassers in 2010[lv],
the public was bewildered to see the PCOS (or VCMs) generate a gross error in
the number of registered voters, reporting 256,733,195 instead of
51,317,073. This incident demonstrated
for all to see what computers can easily do – multiply figures five-fold.
If
the PCOS (or VCMs) can commit a gross error in simply counting the total number
of registered voters, we certainly cannot discount the possibility of similar
gross errors in more complex processes like tallying the total number of votes
among numerous candidates in the several national and local positions.
More
than seven (7) years later, this glaring anomaly remains a mystery, because the
COMELEC, its private contractor/supplier and foreign technology provider, never
came up with a credible technical report showing that the root cause has been
identified, isolated and fixed.
Today,
the challenge to democracy and the people’s sovereignty remains daunting. Notwithstanding
all the foregoing, the latest news reports that COMELEC has again renewed its
contract with Smartmatic-TIM for the
2019 elections.[lvi]
While
the Constitution enshrines the principles that “the Philippines is a democratic
and republican State” and that “sovereignty resides in the people, and all
government authority emanates from them,”[lvii]
these principle will not be realized unless and until the people themselves
assert their right and power as sovereign.
As we ponder what lies ahead for our
country, let me end this article with the reminder for all of us citizens and
voters that –
Atty. Dindo B.
Donato
General Counsel
Tanggulang
Demokrasya (Tan Dem), Inc.
01 February 2018. Makati City, Philippines.
Disclaimer: The views and
opinions expressed in this material are those of the author and do not
necessarily reflect the official policy or position of TanDem.
Copyright: All intellectual property
rights are granted to the public domain.
[i] Republic Act No. 8436 (22 December 1997), AN ACT AUTHORIZING
THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11,
1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL
EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES, which read in part
as follows: “Section 1. Declaration of
policy. - It is the policy of the State to ensure free, orderly, honest,
peaceful and credible elections, and assure the secrecy and sanctity of the
ballot in order that the results of elections, plebiscites, referenda, and
other electoral exercises shall be fast, accurate and reflective of the genuine
will of the people.”
[ii] Republic Act No. 9369 (23 January 2007), AN ACT AMENDING
REPUBLIC ACT NO. 8436, ENTITLED "AN ACT AUTHORIZING THE COMMISSION ON
ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR
LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES,
PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES,” TO ENCOURAGE TRANSPARENCY, CREDIBILITY,
FAIRNESS AND ACCURACY OF ELECTIONS, AMENDING FOR THE PURPOSE BATAS PAMPANSA
BLG. 881, AS AMEMDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTIONS LAWS,
which reads in part as follows: “SECTION 1. Declaration
of Policy. - It is policy of the State to ensure free, orderly, honest,
peaceful, credible and informed elections, plebiscites, referenda, recall and
other similar electoral exercises by improving on the election process and
adopting systems, which shall involved the use of an automated election system
that will ensure the secrecy and sanctity of the ballot and all election,
consolidation and transmission documents on order that the process shall be
transparent and credible and that the results shall be fast, accurate and
reflective of the genuine will of the people.
“The
State recognizes the mandate and authority of the Commission to prescribe
adoption and use of the most suitable technology of demonstrated capability
taking into account the situation prevailing in the area and the funds available
for the purpose.”
[vi] 1987 Constitution, Article IX
Constitutional Commissions, C. The Commission on Elections, Section 2(2).
[vii] “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 group which
may conduct their own review thereof.’’ Sec.14
of RA 8436, of amended by Sec.12 of RA 9369.
[viii] “The automated election system must … utilize or
generate official ballots.” Sec.6 (m) of RA 8436, as amended by Sec.7 of
RA 9369. "To prevent the use of fake ballots, the
Commission through the Committee shall ensure that the necessary safeguards,
such as, but not limited to, bar codes, holograms, color shifting ink,
microprinting, are provided on the ballot.” Sec. 15 of RA
8436, amended by Sec. 13 of RA 9369.
[ix] “The automated
election system must … provide the voter a system of verification to find out
whether not the machine has registered his choice.” Sec.6
(n) of R.A. 8436, as amended by Sec. 7 of R.A 9369.
[x] “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”.
Sec. 22 of Rep. Act No. 8436, amended by Sec.
19 of Rep. Act No. 9369.
“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.” Sec.
25 of Rep. Act No. 8436, as amended by Sec. 20 of Rep. Act No. 9369.
“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 supplemented 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 as well as the rules promulgated by the Supreme Court pursuant
thereto.” A new Sec. 30 (of Republic Act
No. 8436) as provided by Sec. 25 of Rep. Act No. 9369.
Implementing the Automated Election Law,
the Office of the President (OP) issued Executive Order No. 810 “adopting a
framework for a national certification scheme for digital signatures,” issuing
“guidelines to implement the national certification scheme for digital
signatures,” and designating the “root certification authority” and the
“government certification authority.”
Executive Order No. 810 (2009) expressly
mandated the National Computer Center (NCC) then under the Commission on
Information and Communications Technology (CICT), as the SOLE government agency
to operate as THE Government Certification Authority for ALL government
transactions that involve the use of “digital signatures.” In other words, apart
from the NCC, NO other Philippine government agency was authorized to operate
the Government Certification Authority.
Subsequently, the OP issued Executive
Order No. 47 (2011) to transfer and integrate the NCC into the Information and
Communications Technology Office (ICTO) under the Department of Science and
Technology (DOST). Accordingly, the ICTO assumed the mandate to operate as the
SOLE Government Certification Authority.
Congress thereafter enacted Rep. Act No. 10844
(2015) that created the Department of Information and Communications Technology
(DICT) and transferred and integrated the ICTO into the DICT. Accordingly, the
DICT further assumed the mandate to operate as the SOLE Government
Certification Authority.
[xi] “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.” Section 29 of Republic Act No. 8436, as amended by Section 24 of
Republic Act No. 9369.
•
Provision for voter
verified paper audit trial (and)
•
System auditability
which provides supporting documentation for verifying the correctness of
reported elections results…”
Section 6 (e) & (f) of R.A 8436, as amended
by Sec.7 of R.A 9369. Bagumbayan v. COMELEC,
G.R. No. 222731, 08 March 2016.
[xiii] “The holding of exit polls and the dissemination of their results through
mass media constitute an essential part of the freedom of speech and of the
press. Hence, The COMELEC cannot ban them totally in the guise of promoting
clean, honest, orderly and credible elections”.
ABS-CBN V. COMELEC, G.R. No. 133486, 28
January 2000.
[xiv] Rep.
Act No. 9369, Sec. 19.
Section 18 of Republic Act No. 8436 is hereby amended to read as follows:
“SEC. 22. Electronic
Returns... "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." (emphasis supplied)
[xv] Id.
The
nullity of “election returns transmitted electronically” but NOT “digitally
signed,” is understood to be without prejudice to the criminal sanctions
imposed on persons who utilize or cause to utilize, or otherwise transmit or
cause to transmit electronically, “election returns” that are NOT “digitally
signed.”
Rep. Act No. 9369, Sec. 28. Section 29 of Republic Act No.
8436 is hereby amended to read as follows:
"SEC.
35. Prohibited Acts and Penalties.
- The following shall be penalized as provided in this Act, whether or not said
acts affect the electoral process or results:
"(a)
Utilizing without authorization, tampering with, damaging, destroying or
stealing:
"(1)
Official ballots, election returns, and certificates of canvass of votes used
in the system; and
"(2)
Electronic devices or their components, peripherals or supplies used in the AES
such as counting machine, memory pack/diskette, memory pack receiver and
computer set;
"(b)
Interfering with, impeding, absconding for purpose of gain, preventing the
installation or use of computer counting devices and the processing, storage,
generation and transmission of election results, data or information;
"(c)
Gaining or causing access to using, altering, destroying or disclosing any
computer data, program, system software, network, or any computer-related
devices, facilities, hardware or equipment, whether classified or declassified;
"(d)
Refusal of the citizens' arm to present for perusal its copy of election return
to the board of canvassers;
"(e)
Presentation by the citizens' arm of tampered or spurious election returns;
"(f)
Refusal or failure to provide the dominant majority and dominant minority
parties or the citizens'' arm their copy of election returns; and
"(g)
The failure to post the voters' list within the specified time, duration and in
the designated location shall constitute an election offense on the part the
election officer concerned."
"Any
person convicted for violation of this Act, except those convicted of the crime
of electoral sabotage, shall be penalized with imprisonment of eight years and
one day to twelve (12) years without possibility of parole, and perpetual
disqualification to hold public office and deprivation of the right of
suffrage. Moreover, the offender shall be perpetually disqualified to hold any
non-elective public office."
[xvi]
Omnibus Election Code of the Philippines (Batas Pambansa Blg. 881), Section 212. Election returns. - The board of election inspectors shall prepare
the election returns simultaneously with the counting of the votes in the
polling place as prescribed in Section 210 hereof. The return shall be prepared
in sextuplicate. The recording of votes shall be made as prescribed in said
section. The entry of votes in words and figures for each candidate shall be
closed with the signature and the clear imprint of the thumbmark of the right
hand of all the members, likewise to be affixed in full view of the public,
immediately after the last vote recorded or immediately after the name of the
candidate who did not receive any vote.
The returns shall also show the
date of the election, the polling place, the barangay and the city of
municipality in which it was held, the total number of ballots found in the
compartment for valid ballots, the total number of valid ballots withdrawn from
the compartment for spoiled ballots because they were erroneously placed
therein, the total number of excess ballots, the total number of marked or void
ballots, and the total number of votes obtained by each candidate, writing out
the said number in words and figures and, at the end thereof, the board of
election inspectors shall certify that the contents are correct. The returns
shall be accomplished in a single sheet of paper, but if this is not possible,
additional sheets may be used which shall be prepared in the same manner as the
first sheet and likewise certified by the board of election inspectors...
If the signatures and/or
thumbmarks of the members of the board of election inspectors or some of them
as required in this provision are missing in the election returns, the board of
canvassers may summon the members of the board of election inspectors concerned
to complete the returns.
Omnibus Election Code of the
Philippines (Batas Pambansa Blg. 881), Section
261. Prohibited Acts. -
The following shall be guilty of an election offense: (bb) Common to all
boards of election inspectors and boards of canvassers: (2) Any member
of any board of election inspectors or board of canvassers who, without
justifiable reason, refuses to sign and certify any election form required by
this Code or prescribed by the Commission although he was present during the
meeting of the said body.
Omnibus Election Code of the
Philippines (Batas Pambansa Blg. 881), Section
264. Section 264. Penalties. -
Any person found guilty of any election offense under this Code shall be
punished with imprisonment of not less than one year but not more than six
years and shall not be subject to probation. In addition, the guilty party
shall be sentenced to suffer disqualification to hold public office and
deprivation of the right of suffrage. If he is a foreigner, he shall be
sentenced to deportation which shall be enforced after the prison term has been
served. Any political party found guilty shall be sentenced to pay a fine of
not less than ten thousand pesos, which shall be imposed upon such party after
criminal action has been instituted in which their corresponding officials have
been found guilty.
In case of prisoner or prisoners
illegally released from any penitentiary or jail during the prohibited period
as provided in Section 261, paragraph (n) of this Code, the director of
prisons, provincial warden, keeper of the jail or prison, or persons who are
required by law to keep said prisoner in their custody shall, if convicted by a
competent court, be sentenced to suffer the penalty of prision mayor in its
maximum period if the prisoner or prisoners so illegally released commit any
act of intimidation, terrorism of interference in the election.
Any person found guilty of the
offense of failure to register or failure to vote shall, upon conviction, be
fined one hundred pesos. In addition, he shall suffer disqualification to run
for public office in the next succeeding election following his conviction or
be appointed to a public office for a period of one year following his
conviction.
[xvii]
Rep. Act No. 9369, Sec. 19.
Section 18 of Republic Act No. 8436.
[xviii] http://www.abs-cbnnews.com/nation/04/11/13/no-more-time-pcos-source-code-review. http://www.tribune.net.ph/index.php/headlines/item/12776-time-running-out-for-source-code-review. http://vote2013.verafiles.org/source-code-talks-bog-down/. http://newsinfo.inquirer.net/399647/source-code-has-been-reviewed-but-we-wont-show-it-brillantes#ixzz2Rv2AxXKa. http://www.malaya.com.ph/index.php/news/nation/29850-brillantes-theres-source-code-but-its-not-open-for-inspection.
[xix] Tanggulang Demokrasya v. COMELEC,
G.R. No. 206784, OSG Comment, page 3, paragraph
13.
[xxi] COMELEC Invitation to Bid,
Portable UV Lamps, April 2010.
[xxii] Tanggulang Demokrasya (TanDem)
et al v. COMELEC, G.R. No. 206784, OSG Comment of 22 August 2013,
Page 18, Paragraph 41.
[xxiii] COMELEC Resolution No. 8786 dated 04 March 2010 which
reads as follows:
“Section
36. Manner
of voting. - Voting shall be conducted in the following manner … b) The
voter shall then approach the PCOS, insert his ballot in the ballot entry slot
and wait until message "CONGRATULATIONS. YOUR VOTE HAS BEEN
REGISTERED." appears on the screen. The BEI shall monitor the PCOS screen
to make sure that the ballot was successfully accepted. Thereafter, the voter
shall return the ballot secrecy folder and marking pen to the chairman.”
COMELEC Resolution No. 9640 dated 15 February 2013
which reads as follows:
“SEC. 47. Manner
of Voting.- a) The voter shall … ii. After accomplishing his ballot, approach
the PCOS, insert his ballot in the ballot entry slot, and wait until the
message “CONGRATULATIONS. YOUR VOTE HAS BEEN REGISTERED” appears on the
screen.”
COMELEC
Resolution No. 10057 dated 11 February 2016 which reads in part as follows:
“SEC. 40. Manner
of voting.- a) The voter shall … 2. After accomplishing his/her ballot,
approach the VCM, insert his/her ballot in the ballot entry slot;
i. The VCM will
display “PROCESSING…/ PAKIHINTAY… KASALUKUYANG PINOPROSESO”;
ii. The ballot
shall automatically be dropped inside the ballot box. The VCM will then display
the message “YOUR VOTE HAS BEEN CAST/ ANG IYONG BOT AY NAISAMA NA.”
[xxiv]
COMELEC Resolution No. 8786
dated 04 March 2010 which reads in part as follows:
Section 40. Counting of ballots and transmission of
results; Procedure...
f)
Thereafter, the PCOS shall automatically count the votes and immediately
display a message “WOULD YOU LIKE TO
DIGITALLY SIGN THE TRANSMISSION FILES WITH 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 DIGITAL SIGNATURE?” with a “YES”
or “NO” option;
h) Press “YES” option. A message shall be
displayed “PRINTING 8 COPIES OF NATIONAL RETURNS. PLEASE WAIT.” (emphasis
supplied)
COMELEC Resolution No. 9640 dated 15 February 2013
which reads in part as follows:
Section 51. Counting of ballots and transmission of results;
Procedure...
f)
Thereafter, the PCOS shall automatically count the votes and immediately
display a message “WOULD YOU LIKE TO
DIGITALLY SIGN THE TRANSMISSION FILES WITH 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 DIGITAL SIGNATURE?” with a “YES”
or “NO” option;
h) Press “YES” option. A message shall be
displayed “PRINTING 8 COPIES OF NATIONAL RETURNS. PLEASE WAIT.” (emphasis
supplied)
[xxv] National Computer Center letter to Donato Zarate
& Rodriguez dated 18 May 2012 which reads in part as follows:
“Please be
informed that based on NCC records, we have not received a request from the
Commission on Elections for the issuance of any certificate for digital
signatures. Likewise, we have not issued any certificate for digital
signatures, in connection with the conduct of 10 May 2010 national and local
elections.
“Moreover, based
on NCC records, we have not issued an accreditation to the Commission on
Elections and Smartmatic-TIM Corporation as Certification Authority, in
connection with the conduct of 10 May 2010 national and local elections.”
[xxvi]
COMELEC
Advisory Council (CAC) letter to Donato & Zarate dated 14 September 2017
which reads in part as follows:
“Please be
informed that based on the records of the Philippine National Public Key
Infrastructure (PNPKI) and the Department of Information and Communications
Technology (DICT), we have not received a request from the Commission on
Elections (COMELEC) for the issuance of any certificate for digital signatures
to be used for the 2016 NLE.
“Moreover, based
on the records of PNPKI and DICT, there has been no issuance of accreditation
to the COMELEC and Smartmatic-TIM Corporation as Certification Authority, in
connection with the conduct of the aforesaid elections.”
[xxvii]
The
Executive Director of the COMELEC, Atty. Jose Tolentino, during the hearing on
23 March 2016 of the Joint Congressional Oversight Committee on the Automated
Election System (JCOCAES) that the COMELEC was unable to secure from the
Department of Science and Technology (DOST) the key pair “digital signatures”
with the appropriate digital certificates. Curiously, the COMELEC under
Chairman Bautista wanted the DOST to disclose to them the private keys to be
issued to the BEI members. Naturally, the DOST rejected the request because
that defeated the intended secrecy of the private key of the key pair of
“digital signatures.”
Pages 143-146 of the transcript of the JCOCAES hearing on 23 March 2016 reads in part as follows:
The
transcript of the JCOCAES hearing on 23 March 2016 reads in part as follows:
“THE CHAIRMAN (SEN.
PIMENTEL). So this is where the clash is, right? The definition ng digital—
“MR. CHONG. The
provision of the law in Republic Act 9369, Section 30, it says here, “For the
determination of the authenticity and due execution of the certificates
referring to the digital signature, it must go through the appropriate
authentication and certification procedures for electronic signatures as
provided in Republic Act 8792,” that is the E-Commerce Law.
“Now the question is,
does this digital signature they are telling us is compliant with Republic Act
8792?
“I may turn over the
microphone to Dr. Nelson Celis, Your Honor.
“THE CHAIRMAN (SEN.
PIMENTEL). Let’s ask the COMELEC to answer. I think this issue has been
sufficiently discussed before.
“So Director Tolentino,
ano—
“MR. TOLENTINO. Sir, we
tried asking the DOST, I think it was asking if they could generate the digital
certificates for us and I think we have a bit of a problem there because there
are requirements for the issuance of a digital certificate which we cannot
comply with because, for example, sir, ano siya parang there is a data that has
to be divulged and the DOST said, “No, we cannot issue that.” It should be,
kumbaga secret or nobody should know about it, otherwise it could be copied or
something. So—
“THE CHAIRMAN (SEN.
PIMENTEL). Did the stakeholders hear the explanation? And if you want to
question it, then maybe you know what to do.
“MR. CELIS. Mr.
Chairman.
“THE CHAIRMAN (SEN.
PIMENTEL). Kasi we cannot engage in endless debate. The COMELEC has made a
decision based on their understanding. If we disagree—Pero for the record na
lang, Dr. Celis, what is the interpretation of at least your group or yourself?
“MR. CELIS. Thank you,
Your Honor.
“Mr. Chairman, remember
in the past hearings we had, we had Usec Casambre, we had Director Dennis
Villorente, and they said that they can simplify the digital signing using
their digital signing facility. What was mentioned by Director Tolentino, he
mentioned about iyong intricacies in providing the information for the board of
canvassers and the board of election inspectors with regard to the digital
signatures. But I do remember Director Dennis Villorente said that it can be
simplified. It can be simplified. So as mentioned by Director Tolentino, they
were not able to comply with the authentication of that digital signature as he
just mentioned.
“MR. TOLENTINO. Just to
clarify, sir, it is the DOST that does not want to divulge the private key.
It’s them that cannot comply. (emphasis supplied)
“THE CHAIRMAN (SEN.
PIMENTEL). Well, anyway—
“MR. TOLENTINO. Why
don’t you just ask the DOST kung may doubt.
“THE CHAIRMAN (SEN.
PIMENTEL). Basta, COMELEC, you have explained to us what you will do. Okay.
“Your actions will be
measured against Section 30 by stakeholders. Should they not believe that
Section 30 has been complied with, they know what to do. Okay. So—” (Emphasis
supplied)
Section. 7 SELECTION PROCESS OF AREAS TO BE AUDITED
a) Random selection of
the clustered polling precincts to be audited will be done at the Philippine
International Convention Center on May 10, 2010 starting at 12:00 noon by
the TWG-RMA... (emphasis supplied)
c) Guests may be invited to
draw the clustered polling precincts from the tambiolo. The selection of
the clustered polling precinct will be open to the media, political parties and
other election stakeholders to ensure speedy dissemination of information and
for transparency.
d) The TWG-RMA shall inform all concerned PES having jurisdiction
over
the clustered polling precincts randomly selected for the
RMA.
S E C T I O N 5 .
Selection Process of Areas to be Audited -
a) Random selection of the clustered precincts to be
audited will be done not later than four (4) days prior to the day of the
Elections by the RMA Committee. (emphasis supplied)
a.1. Four (4) days before the day of the Elections,
the List of Municipalities involved in RMA shall be released; and
a.2. The List of
Specific Clustered Precincts that will undergo RMA shall be disclosed two (2)
days prior to the day of the Elections...
c) The selection of the clustered precinct will be open
to the Media, Political Parties and other election stakeholders to ensure
speedy dissemination of information and for transparency.
d) The RMA Committee shall
inform all concerned Coordinators having jurisdiction over the clustered
precincts randomly selected for the RZMA.
COMELEC Resolution No. 10078 dated 11 March 2016
which reads in part as follows:
“SECTION 5. Selection
Process of Areas to be Audited.-
a) Random selection of the clustered precinct/s to be
audited per legislative district will be done not later than four (4) days
prior to the day of the Elections by the RMA Committee. The List of
Specific Clustered Precinct/s per legislative district that will undergo RMA
shall be disclosed in the morning of the Elections. (emphasis supplied)
b) At least one (1) clustered precinct per legislative
district will be drawn randomly based on the proportionate allocation of
clustered precinct per legislative district vis-à-vis
the total number of clustered precincts. The random selection shall be done
using an automated random selection program, subject to Source Code Review by
Registered Political Parties and Accredited Citizens’ Arm Groups. The
computation for the proportionate allocation of clustered precincts and the
design of the automated random selection program shall be under the control of
the Philippine Statistics Authority.”
[xxx] Tanggulang Demokrasya
(TanDem) et al v. COMELEC, G.R. No. 206784, OSG Comment of 22 August 2013,
Page 4, Paragraph 17.
[xxxi] www.thefreedictionary.com/random
[xxxiii]
Telephone Interview with former
Congressman of Biliran, Glenn A. Chong, on 01 February 2018, who stated the
following: that citizen advocates established exit poll stations in all 169
clustered precincts in Biliran in 2013; that voters were given a piece of paper
for the exit polls as exited the clustered precincts after voting; that only
the positions of Congressman, Governor and Mayor were covered by the exit
polls; that by about 10:00 a.m. of election day on 13 May 2013, all exit poll
stations were dismantled and confiscated by the officers of COMELEC and the
Philippine National Police (PNP); that the matter of the dismantling and
confiscation of exit poll stations was raised by Mr. Chong during the hearing
of the Joint Congressional Oversight Committee on the Automated Election System
(JCOCAES) held on 04 December 2014; that Deputy Director General Leonardo
Espina, was ordered by the JCOCAES to submit a report on the matter; and that
no report was submitted by the PNP to the JCOCAES.
[xxxv]
Aranas,
et al, v. Municipal Election Registrar, et al, RTC Civil Case No. 4378-13, 21
March 2014.
This is an action filed
by registered voters with the Regional Trial Court of Gapan City, Nueva Ecija, for
the opening of ballots and manual counting of votes cast for senatorial
candidate Eduardo Villanueva during the national elections of 13 May 2013, on
the ground that the result of the canvass of votes cast for the said candidate
in three (3) specified clustered precincts was mathematically improbable
because the votes counted were less than the number of the plaintiffs. After
trial, the Court rendered its Decision declaring that upon manual counting of the votes appearing in official ballots
in Clustered Precinct Nos. 19, 29 and 30 in Barangays Pias and Concepcion,
General Tinio, Nueva Ecija, candidate
Villanueva garnered a total of 900 votes as against the official COMELEC count
of only 781 votes. There being no appeal or motion for reconsideration
or new trial filed within the reglementary period, the Decision became final
and executory.
This is a Petition for Mandamus filed with the Supreme
Court on 22 February 2016 to compel the COMELEC to enable the Voter Verified
Paper Audit Trail (VVPAT) security feature in connection with the 04 May 2016
elections, pursuant to Section 6 (e) &
(f) of Rep. Act No. 8436, as amended by Sec.7 of Rep. Act No. 9369. On 08 March 2016, the Supreme Court granted the petition
and ordered the COMELEC to enable the VVPAT. On 17 March 2016, the Supreme
Court denied with finality the motion for reconsideration of COMELEC, and
restated the order to enable the VVPAT.
[xxxvii]
Philippine Computer Society v. Melo & Flores, et al. Filed with the Ombudsman on 29 June 2010 in connection with the
10 May 2010 elections.
[xxxviii]
Biliran Kawsa v. Flores & Melo, et al. Filed with the PNP/CIDG on 17 October 2011 in connection with
the 10 May 2010 elections.
[xxxix]
Tanggulang Demokrasya, et al v. COMELEC.-
This is a Petition for Mandamus filed with the Supreme Court on 08 May 2013 and
docketed as G.R. No. 206784, to (i) postpone the proclamation of candidates
pending the validation of the electronic results via the manual count of all
ballots cast, provided there are no signs of tampering of said ballots, or (ii)
declare the proclaimed candidates as de facto public officers,
subject to validation by manual count of all ballots cast, provided there are
no signs of tampering of said ballots, based on the grounds of (a) disablement of
digital signatures, (b) failure to make the source code available for review,
(c) disablement of the vote verification function, and (d) nullification of the
randomness of the manual audit, during the elections on 13 May 2013.
[xl] FOIA
Request for Disclosure of Information. This is a Request for Disclosure of Information
filed on 22 May 2013 by a US citizen presumably of Filipino descent, with the
Central Intelligence Agency (CIA) of the U.S.A. pursuant to the Freedom of
Information Act (FOIA), seeking records of participation or monitoring by the
Agency of the conduct by Smartmatic International Corporation of the Philippine
automated elections on 10 May 2010, among others. The request was denied on 01
July 2013 under Reference No. F-2013-01987, stating that the existence or
non-existence of such records was classified information.
[xli] Tanggulang Demokrasya
& Bagumbayan, et al v. Melo, Brillantes, De Villa & Flores, et al.- This is a criminal and administrative complaint filed with the
Ombudsman on 04 July 2013 and docketed as IC-OC-13-1384, for various violations
of the AES Law and related laws, on the grounds of (a) disablement of digital
signatures, (b) failure to open the source code for review, (c) failure to
provide for a vote verification process, and (d) negating the randomness of the
manual audit, during the elections on 13 May 2013.
[xlii] 1987
Constitution, Article IX, C. Commission on Elections, Sec. 2(1).
[xliii] Contract
for the Provision of an Automated Election System for the May 10, 2010
Synchronized National and Local Elections, dated 10 July 2009, between the
Commission on Elections and Smartmatic TIM Corporation.
[xlv] Contract for the Provision of an Automated
Election System for the May 10, 2010 Synchronized National and Local Elections,
dated 10 July 2009, by and between the Commission on Elections and Smartmatic
TIM Corporation, which reads in part as follows:
“3.3 The PROVIDER
shall be liable for all its obligations under this Project, and the performance
of portions thereof by' other persons or entities not parties to this Contract
shall not relieve the PROVIDER of said obligations and concomitant liabilities.
“SMARTMATIC, as the joint venture
partner with the greater track record in automated elections, shall be in charge of the technical aspects of the
counting and canvassing software and hardware, including transmission
configuration and system integration. SMARTMATIC shall also be primarily responsible for preventing and
troubleshooting technical problems that may arise during the election.
(emphasis supplied)
“The PROVIDER
must provide to SMARTMATIC at all times the support required to perform the
above responsibilities.”
[xlvi]
https://en.wikipedia.org/wiki/International_Foundation_for_Electoral_Systems
[xlvii] IFES Buyer’s Guide to Election
Suppliers, 2007 Edition, pages 51-52.
[xlviii] https://en.wikipedia.org/wiki/International_Foundation_for_Electoral_Systems
[xlix]
https://en.wikipedia.org/wiki/United_States_Agency_for_International_Development#Political_interests
“Political interests
“Some critics say that the US
government gives aid to reward political and military partners rather than to
advance genuine social or humanitarian causes abroad. William Blum has said that in the 1960s and
early 1970s USAID has maintained "a close working relationship with
the CIA, and Agency officers often operated
abroad under USAID cover." The 1960s-era Office of Public Safety, a now-disbanded
division of USAID, has been mentioned as an example of this, having served as a
front for training foreign police in counterinsurgency methods (including
torture techniques).
“Folha de S.Paulo, Brazil's largest
newspaper, accused USAID of trying to influence political reform in Brazil in a
way that would have purposely benefited right-wing parties. USAID spent $95,000
US in 2005 on a seminar in the Brazilian Congress to promote a reform aimed at
pushing for legislation punishing party infidelity. According to USAID papers
acquired by Folha under the Freedom of Information Act, the seminar was planned to coincide
with the eve of talks in that country's Congress on a broad political reform.
The papers read that although the "pattern of weak party discipline is
found across the political spectrum, it is somewhat less true of parties on the
liberal left, such as the [ruling] Worker's Party." The papers
also expressed a concern about the "'indigenization' of the conference so
that it is not viewed as providing a U.S. perspective." The event's main
sponsor was the International Republican Institute.
“In the summer of 2012, ALBA countries (Venezuela, Cuba, Ecuador, Bolivia, Nicaragua, San
Vicente y Las Granadinas, Dominica, Antigua y Barbuda) called on its members to
expel USAID from their countries.”
[li]
Carmen N. Pedrosa, The story within the story, Philippine Star, 07 September
2008, http://dodongakakakiko.blogspot.com/2009/07/story-within-story.html. See https://en.wikipedia.org/wiki/Central_Intelligence_Agency#History
[lii]
See US Defense Production Act of 1950, as amended by FINSA, Section 721
(50 U.S.C. App. 2170). Executive Order No. 11858 (as amended by Executive Order
No. 13456), re Foreign Investment in the United States.
[liv] https://maloney.house.gov/media-center/press-releases/smartmatic-announces-sale-sequoia-voting-systems
[lv] “PCOS” a tool for honest or
fraudulent elections? Part 4 of 4, 0:00-1:16
(Proceedings of the National Board of
Canvassers)
[lvi] http://www.philstar.com/headlines/2018/02/01/1783455/comelec-renews-contract-smartmatic-2019-elections
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