Giving Automated Elections a Chance
Is the upcoming 2010 national elections another leap of faith
For the Filipino people?
When Juan dela Cruz visits his local polling precinct this May 10, 2010, he will be confronted not only with the usual chaos of election-day politics, but also with the novelty of participating in the first-ever fully automated national election in Philippine history.
17 years and over P11.2 Billion in the making, the full automation of the May 10, 2010 elections has been hailed by the government as a watershed event in our troubled democracy, as the use of Precinct-Count Optical Scan (PCOS) machines are expected to provide prompt and accurate election results while at the same time minimizing the opportunities for election fraud, including the dagdag-bawas schemes of the past. In the words of Commission on Elections (COMELEC) Chairman and former Supreme Court justice Jose A.R. Melo, “let us go onward to 2010 and God help us in this elections, because this will be our last chance to have an honest, clean and credible elections.”
The full automation of the 2010 polls, therefore, is an innovation long-coming, considering especially the antiquated voting system which has changed very little from the first general election held in the Philippines in 1907. True, refinements and safeguards have been put in place through various electoral exercises and three Constitutions. But at its core, the existing process remains, on the whole, tedious, time-consuming, and prone to fraud and manipulation. This is because the election process in the Philippines, from the casting of votes, to the canvassing of ballots, to the proclamation of winners, is essentially done by hand.
The Existing Electoral System
Voters everywhere are, of course, familiar with the procedure. After identification in official voter’s lists at designated voting precincts throughout the Philippines, the voter is given an official ballot on which to manually write the names of their chosen candidates. This often involves recalling at least twenty names, from the position of President, Vice-President, Senator, Mayor, Vice Mayor, members of the Sanggunian, congressman and party-list representative.
At the close of the voting day, all ballots in the local precincts are counted by what is known as the Board of Election Inspectors (BEI), a group of 3 public school teachers designated by law as “front-line election officers” tasked with the voting and counting of votes in their respective precincts. Counting is done by reading the individual votes aloud, with other election officials recording these votes on what is known as an Election Return (ER). When the BEI finally completes the counting of ballots, the ER, together with the ballot boxes, are sent to the city or municipal Board of Canvassers where they are manually canvassed or totaled together with the ERs from other local precincts. The results of this canvass are stated in what is known as a Certificate of Canvass (COC).
Upon completion of the municipal or city canvass, the municipal or city Board of Canvassers proclaims the winning municipal or city candidates, which include the positions for Mayor and Vice Mayor. At the same time, they transmit the completed city or municipal COCs to the provincial Board of Canvassers, for canvassing of the various canvassed votes from the municipalities and cities within the province. The provincial Board of Canvassers, in turn, prepares another COC from the municipal or city tally, but this time, for the positions of President, Vice-President, Senator, Congressmen, and other elective provincial officials.
After completing the provincial canvass, the provincial Board of Canvassers proclaims the winning candidates for positions of Congressman, Governor, Vice Governor, and other elective provincial officials, and transmits the completed provincial COC to the COMELEC and to Congress, which separately serve as the national Board of Canvassers for the positions of Senator, and President and Vice President, respectively. The COMELEC and Congress then conduct their own separate canvasses for these positions, and proclaim the winning candidates accordingly.
The Road to Automation
With this system, it is not difficult to see how election results, particularly for the positions of President and Vice President, would not only take weeks, if not months to complete, but would also be susceptible to manipulation through ER or COC substitution and dagdag-bawas. It has been observed, in fact, that while election fraud already takes place in the precinct level before the BEIs through the misreading or outright omission of votes, it is at the municipal, provincial and national canvasses where the whole-sale and drastic manipulation of election results take place. This is because it is at this level that cheating, if successfully done, would provide the most effective and certain results. This situation is compounded further by the inordinate delay between voting and proclamation, as returns are transmitted from one canvass level to the next, all by hand. This delay is precisely what some point to as the main contributing factor to election fraud.
Faced with this antiquated and fraud-ridden process, the COMELEC, under the leadership of Christian Monsod, embarked in 1992 on a program to modernize and automate Philippine elections. The COMELEC began its efforts with a survey of foreign electoral systems and proceeded with consultations with international election experts, through which it identified specific components necessary to successfully institutionalize a fully automated election framework. Among these components included the need to update existing technology and the systemization of the method of voter registration.
The COMELEC’s efforts were given legislative approval in 1995 when Congress enacted Republic Act No. 8046 which allowed the COMELEC to pilot-test an Automated Election System (AES) during the scheduled March 1996 elections in the Autonomous Region in Muslim Mindanao (ARMM). While COMELEC was given wide latitude to determine the details and particulars of this AES, its discretion was circumscribed within well-defined parameters which Congress required, first among which was the use of a stand alone machine that required minimum human intervention and which could generate immediate results using tangible ballots. By most standards, the pilot-testing of the AES adopted by the COMELEC for the 1996 ARMM Elections was considered by many, including the National Movement for Free Elections (NAMFREL) and the Parish Pastoral Council for Responsible Voting (PPCRV), as a success.
Buoyed by the inroads made during this election, the COMELEC sought permission from Congress to fully automate the 1998 national polls. Congress responded with Republic Act No. 8346, which, while notable, was passed in the latter part of 1997, barely six months before the 1998 polls, because of Congressional in-fighting and lobbying from vested interets. Late though the law was, it granted the COMELEC’s modernization campaign a broader scope by authorizing the automation of not only the 1998 elections, but all subsequent national and local elections thereafter. For this purpose, the law mandated the COMELEC to purchase acceptable automated counting machines.
Because of the delayed passage of the law, however, COMELEC did not have sufficient time to prepare for the nationwide use of the automated system for the 1998 polls and even the 2001 mid-term elections.
It was not until 2003, following allegations of fraud in the bidding out of the contract for the computerization of voters’registration and voters’ list, that the COMELEC pursued automation for the 2004 elections. Armed with funds from the Office of the President, the COMELEC entered into a poll automation contract with a consortium led by Mega Pacific eSolutions, Inc. The Supreme Court eventually voided this agreement on the ground that the joint-venture company formed by Mega Pacific did not have the requisite juridical personality. The Court also found that the contract itself was grossly disadvantageous to the government, since the machines offered by Mega Pacific failed to meet the required accuracy standards, and are therefore unfit for use in any electoral exercise.
In a stinging criticism of the COMELEC, the Court said that the award of the automation contract to Mega Pacific by the COMELEC, “cast serious doubts upon the poll body’s ability and capacity to conduct automated elections.” The Court even went to the extraordinary step of prompting the office of the Ombudsman to determine whether any criminal wrongdoing was committed by government officials, including officials from the COMELEC, in the execution of the fatally defective agreement. Curiously, however, no government official or private individual was held to task for the fiasco, notwithstanding the fact that government had already paid Mega Pacific the contract price of P11.2Billion for the purchase of the machines.
Because of the mistrust generated by the whole Mega Pacific incident, nationwide poll automation was seriously placed in jeopardy. This was further aggravated by the involvement of some of the same COMELEC officials in the $329 Million National Broadband Network (NBN) project with the Chinese firm ZTE, and in the Hello Garci controversy. It was clear that COMELEC needed a serious cleaning of house, one which the government hoped would begin with the appointment of former Supreme Court Justice Jose A.R. Melo as COMELEC chairman.
Still, and notwithstanding these election scandals, Congress forged forward with Republic Act No. 9369, which amended the original automation law passed in 1995 by specifying either a paper-based optical mark reader (OMR) or a direct recording electronic (DRE) system as the designated mode of election automation. The amendatory law also required the use of the chosen automation system in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao during the mid-term elections of 2007, ahead of the mandated national automation during the elections of May 2010.
Notwithstanding the amendatory law, however, COMELEC was again unable to implement any automation during the May 2007 polls, citing the now familiar lack of time and absence of sufficient funds. The COMELEC, however, was able to automate the ARMM Elections in August 2008, using both modes of election automation required by the law. Eventually, the COMELEC selected the use of the paper-based OMR system for the 2010 national elections. This paper-based system, while computerized, nonetheless uses actual paper ballots, unlike the DRE system, which dispenses with actual ballots altogether and relies instead on touch-screen technology to record the voter’s choice.
The PCOS Automated System
The PCOS machines for use in the 2010 polls are actually a species of the paper-based OMR system that functions by reading and counting the markings made by voters on paper-ballots after they are fed into the machine. Voters will no longer have to individually write the names of their chosen candidates, as requied in the present system, since voting is done by darkening spaces opposite the names of chosen candidates. The PCOS machine then stores the scanned information until, and only at the end of the specified polling period.
Upon a specific command from the BEI, results in the particular precinct are then automatically tallied by the PCOS machine, which prints out copies of the ER that reflect the names of candidates and the number of votes garnered by each. When copies of the ER are physically distributed to the legally-designated recepients, such as the COMELEC and the NAMFREL, the BEI then digitally signs and encrypts the electronic copy of the ER using a password or private key, which allow for the transmittal of the ER over wireless public network lines to the corresponding city or municipal Board of Canvassers, as well as to the COMELEC central back-up server, among others. A separate automated canvassing system collates these ERs at the municipal, city, provincial and national level, and generates corresponding COCs, similar to the existing system. What is notable, however, is that throughout the canvassing process, human intervention is brought to a minimum, and accuracy is ideally increased because of the absence of human error.
Continued Skepticism and the Optimism of the Supreme Court
Some quarters, however, remain skeptical about the technology and over-all canvassing system chosen by the COMELEC for the 2010 elections. These skeptics, whose ranks include lawyers and IT professionals, point out that the PCOS machines approved for use by the COMELEC not only lack transparency in the recording, canvassing and transmittal of votes but are also susceptible to software attacks, glitches, and other technical problems.
One of the most obvious vulnerabilities underscored by detractors is the choice of the PCOS system itself, which requires the voter to shade spaces beside candidate names, which are, in turn, scanned, tabulated, and saved by the machine. Pointing to experience abroad, some IT professionals say that this scanning system is prone to errors and inaccurate reporting.
Some critics also point to the unreliable access controls built into the PCOS system, so that election cheats need only find a way to hack into the system and manipulate votes. Because of the electronic nature of the canvas, the results would not show any badge of fraud or any indication that they were actually tampered with. The machines, therefore, would actually facilitate rather than thwart widespread cheating during the elections. Some have even suggested that the PCOS machines themselves could already come rigged on election day, and none of us would be the wiser.
Still others paint a more chilling doomsday scenario and point to the possibility of a wholesale breakdown in the machines themselves or in the electronic canvassing of the ballots, resulting in a massive failure of elections. Already, malicious minds have implied that some entrenched interests are preparing to use widespread blackouts on election day to manufacture a failure of elections scenario on May 10, 2010.
In defense of the PCOS machines, however, Atty. Ferdinand Rafanan, COMELEC Law Department chief, said that the COMELEC’s chosen automation system still provides for adequate security features to safeguard the sanctity of the ballot. He points to multi-layer security mechanisms such as 128-bit encryption smart keys and passwords which are needed to start-up and operate the PCOS machines and to transmit results once the elections are completed. He also cites the print-out of unalterable audit log reports which can supposedly detect any fraudulent use or operation of the machines. In any event, because of the existence of paper-based ballots, Rafanan points out that the COMELEC will always have a failsafe alternative to refer to, should the PCOS machines fail on election day.
Still, these security features are not enough, at least to the minds of lawyer Harry Roque and his Concerned Citizens Movement (CCM). On July 9, 2009, Roque filed a petition before the Supreme Court seeking to enjoin the COMELEC from signing the poll automation contract with Smartmatic TIM Corporation, the joint-venture company considered the best complying bidder. Roque argued that under Republic Act No. 9369, any automated election must first undergo “pilot testing” in specified areas in the Philippines before full-blown automation can be conducted. That COMELEC failed to hold such pilot testing or did not require it in its automation contract shows that it abused its discretion in awarding the contract to Smartmatic TIM Corporation. Roque also said that the PCOS machines themselves do not satisfy the minimum system capabilities required by Republic Act No. 9369 to safeguard the integrity of the ballot. In particular, the petition cites the failure of the PCOS machines to “assure accuracy in the recording and reading of votes, as well as in the tabulation, consolidation/canvassing, electronic transmission, storage results and accurate ballot counting.”
In a 7-3 Decision handed down on September 10, 2009, however, the Supreme Court denied Roque’s petition and ruled that “pilot testing” is not required for the upcoming May 10, 2010 elections. Noting that the language of the law did require automation ”in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao” during the May 9, 2007 elections, the Court said that the COMELEC’s failure to automate at that time did not mean that it could not fully automate in subsequent electoral exercises. In the Court’s judgment, the intention of Congress in passing Republic Act No. 9369 was to fully automate all elections after the 2007 polls, regardless of whether automation was actually done in 2007.
In addition, the Court also ruled that the PCOS machines themselves met the minimum capability standard required by Republic Act No. 9369. The Court pointed to the COMELEC-prescribed 26-item checklist criteria which the PCOS machines passed with an accuracy rating of at least 99.995%. Finding no legal infirmity in the automation contract with Smartmatic TIM Corporation, therefore, the Court confidently said that “even though the [automated election system] has its flaws, COMELEC and Smartmatic have seen to it that the system is well-protected with sufficient security measures in order to ensure honest elections.” This conclusion was echoed by no less than the Chief Justice, Raynato Puno, in a separate concurring opinion, where he said: “Absent any capricious and whimsical exercise judgment on the part of the COMELEC, its determination of the appropriate election technology, as well as the procedure for its procurement, should be respected. The fear of automation failure should not overwhelm us.”
The practical effect of the Supreme Court’s September 10, 2009 Decision, of course, is to remove all legal roadblocks to the full automation of the 2010 elections. In the coming months, therefore, COMELEC is expected to conduct personnel training for about 160,000 personnel who will be operating the PCOS machines, and is also scheduled to release an initial 5% tranche of the P7.2 Billion contract to Smartmatic TIM Corporation.
But the Supreme Court’s confidence in the automated system, in stark contrast to its findings in the Mega Pacific decision of 2004, provides little comfort to nay-sayers who continue to prophesy gloom and doom on May 10, 2010. Indeed, the Supreme Court may be many things, but varied may its competencies be under the law, it cannot yet predict the future, much less, guaranty the success of the 2010 elections. Beyond this seemingly alarmist attitude, however, what is obvious is the public’s basic and persistent distrust towards both the government and the COMELEC tasked with implementing automation.
Few, if any, dispute the need for automation. But implicit in this need for automation is the honesty and integrity of the persons and institutions tasked to implement it. This is especially true with the upcoming elections, as fraud, now imbued with an electronic, and therefore, intangible character, will be much more difficult to detect, prove and correct. With what we have thus far seen, heard and known of the COMELEC, is it worthy of the Filipino people’s trust? And while we may certainly adopt the COMELEC’s “give it a try” stance now affirmed by no less than the Supreme Court, many are led to ask whether our democracy is that resilient that it will be able to adopt to such a drastic leap forward. The cliché holds true, therefore, now, more than ever: indeed, only time can really tell.
For the Filipino people?
When Juan dela Cruz visits his local polling precinct this May 10, 2010, he will be confronted not only with the usual chaos of election-day politics, but also with the novelty of participating in the first-ever fully automated national election in Philippine history.
17 years and over P11.2 Billion in the making, the full automation of the May 10, 2010 elections has been hailed by the government as a watershed event in our troubled democracy, as the use of Precinct-Count Optical Scan (PCOS) machines are expected to provide prompt and accurate election results while at the same time minimizing the opportunities for election fraud, including the dagdag-bawas schemes of the past. In the words of Commission on Elections (COMELEC) Chairman and former Supreme Court justice Jose A.R. Melo, “let us go onward to 2010 and God help us in this elections, because this will be our last chance to have an honest, clean and credible elections.”
The full automation of the 2010 polls, therefore, is an innovation long-coming, considering especially the antiquated voting system which has changed very little from the first general election held in the Philippines in 1907. True, refinements and safeguards have been put in place through various electoral exercises and three Constitutions. But at its core, the existing process remains, on the whole, tedious, time-consuming, and prone to fraud and manipulation. This is because the election process in the Philippines, from the casting of votes, to the canvassing of ballots, to the proclamation of winners, is essentially done by hand.
The Existing Electoral System
Voters everywhere are, of course, familiar with the procedure. After identification in official voter’s lists at designated voting precincts throughout the Philippines, the voter is given an official ballot on which to manually write the names of their chosen candidates. This often involves recalling at least twenty names, from the position of President, Vice-President, Senator, Mayor, Vice Mayor, members of the Sanggunian, congressman and party-list representative.
At the close of the voting day, all ballots in the local precincts are counted by what is known as the Board of Election Inspectors (BEI), a group of 3 public school teachers designated by law as “front-line election officers” tasked with the voting and counting of votes in their respective precincts. Counting is done by reading the individual votes aloud, with other election officials recording these votes on what is known as an Election Return (ER). When the BEI finally completes the counting of ballots, the ER, together with the ballot boxes, are sent to the city or municipal Board of Canvassers where they are manually canvassed or totaled together with the ERs from other local precincts. The results of this canvass are stated in what is known as a Certificate of Canvass (COC).
Upon completion of the municipal or city canvass, the municipal or city Board of Canvassers proclaims the winning municipal or city candidates, which include the positions for Mayor and Vice Mayor. At the same time, they transmit the completed city or municipal COCs to the provincial Board of Canvassers, for canvassing of the various canvassed votes from the municipalities and cities within the province. The provincial Board of Canvassers, in turn, prepares another COC from the municipal or city tally, but this time, for the positions of President, Vice-President, Senator, Congressmen, and other elective provincial officials.
After completing the provincial canvass, the provincial Board of Canvassers proclaims the winning candidates for positions of Congressman, Governor, Vice Governor, and other elective provincial officials, and transmits the completed provincial COC to the COMELEC and to Congress, which separately serve as the national Board of Canvassers for the positions of Senator, and President and Vice President, respectively. The COMELEC and Congress then conduct their own separate canvasses for these positions, and proclaim the winning candidates accordingly.
The Road to Automation
With this system, it is not difficult to see how election results, particularly for the positions of President and Vice President, would not only take weeks, if not months to complete, but would also be susceptible to manipulation through ER or COC substitution and dagdag-bawas. It has been observed, in fact, that while election fraud already takes place in the precinct level before the BEIs through the misreading or outright omission of votes, it is at the municipal, provincial and national canvasses where the whole-sale and drastic manipulation of election results take place. This is because it is at this level that cheating, if successfully done, would provide the most effective and certain results. This situation is compounded further by the inordinate delay between voting and proclamation, as returns are transmitted from one canvass level to the next, all by hand. This delay is precisely what some point to as the main contributing factor to election fraud.
Faced with this antiquated and fraud-ridden process, the COMELEC, under the leadership of Christian Monsod, embarked in 1992 on a program to modernize and automate Philippine elections. The COMELEC began its efforts with a survey of foreign electoral systems and proceeded with consultations with international election experts, through which it identified specific components necessary to successfully institutionalize a fully automated election framework. Among these components included the need to update existing technology and the systemization of the method of voter registration.
The COMELEC’s efforts were given legislative approval in 1995 when Congress enacted Republic Act No. 8046 which allowed the COMELEC to pilot-test an Automated Election System (AES) during the scheduled March 1996 elections in the Autonomous Region in Muslim Mindanao (ARMM). While COMELEC was given wide latitude to determine the details and particulars of this AES, its discretion was circumscribed within well-defined parameters which Congress required, first among which was the use of a stand alone machine that required minimum human intervention and which could generate immediate results using tangible ballots. By most standards, the pilot-testing of the AES adopted by the COMELEC for the 1996 ARMM Elections was considered by many, including the National Movement for Free Elections (NAMFREL) and the Parish Pastoral Council for Responsible Voting (PPCRV), as a success.
Buoyed by the inroads made during this election, the COMELEC sought permission from Congress to fully automate the 1998 national polls. Congress responded with Republic Act No. 8346, which, while notable, was passed in the latter part of 1997, barely six months before the 1998 polls, because of Congressional in-fighting and lobbying from vested interets. Late though the law was, it granted the COMELEC’s modernization campaign a broader scope by authorizing the automation of not only the 1998 elections, but all subsequent national and local elections thereafter. For this purpose, the law mandated the COMELEC to purchase acceptable automated counting machines.
Because of the delayed passage of the law, however, COMELEC did not have sufficient time to prepare for the nationwide use of the automated system for the 1998 polls and even the 2001 mid-term elections.
It was not until 2003, following allegations of fraud in the bidding out of the contract for the computerization of voters’registration and voters’ list, that the COMELEC pursued automation for the 2004 elections. Armed with funds from the Office of the President, the COMELEC entered into a poll automation contract with a consortium led by Mega Pacific eSolutions, Inc. The Supreme Court eventually voided this agreement on the ground that the joint-venture company formed by Mega Pacific did not have the requisite juridical personality. The Court also found that the contract itself was grossly disadvantageous to the government, since the machines offered by Mega Pacific failed to meet the required accuracy standards, and are therefore unfit for use in any electoral exercise.
In a stinging criticism of the COMELEC, the Court said that the award of the automation contract to Mega Pacific by the COMELEC, “cast serious doubts upon the poll body’s ability and capacity to conduct automated elections.” The Court even went to the extraordinary step of prompting the office of the Ombudsman to determine whether any criminal wrongdoing was committed by government officials, including officials from the COMELEC, in the execution of the fatally defective agreement. Curiously, however, no government official or private individual was held to task for the fiasco, notwithstanding the fact that government had already paid Mega Pacific the contract price of P11.2Billion for the purchase of the machines.
Because of the mistrust generated by the whole Mega Pacific incident, nationwide poll automation was seriously placed in jeopardy. This was further aggravated by the involvement of some of the same COMELEC officials in the $329 Million National Broadband Network (NBN) project with the Chinese firm ZTE, and in the Hello Garci controversy. It was clear that COMELEC needed a serious cleaning of house, one which the government hoped would begin with the appointment of former Supreme Court Justice Jose A.R. Melo as COMELEC chairman.
Still, and notwithstanding these election scandals, Congress forged forward with Republic Act No. 9369, which amended the original automation law passed in 1995 by specifying either a paper-based optical mark reader (OMR) or a direct recording electronic (DRE) system as the designated mode of election automation. The amendatory law also required the use of the chosen automation system in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao during the mid-term elections of 2007, ahead of the mandated national automation during the elections of May 2010.
Notwithstanding the amendatory law, however, COMELEC was again unable to implement any automation during the May 2007 polls, citing the now familiar lack of time and absence of sufficient funds. The COMELEC, however, was able to automate the ARMM Elections in August 2008, using both modes of election automation required by the law. Eventually, the COMELEC selected the use of the paper-based OMR system for the 2010 national elections. This paper-based system, while computerized, nonetheless uses actual paper ballots, unlike the DRE system, which dispenses with actual ballots altogether and relies instead on touch-screen technology to record the voter’s choice.
The PCOS Automated System
The PCOS machines for use in the 2010 polls are actually a species of the paper-based OMR system that functions by reading and counting the markings made by voters on paper-ballots after they are fed into the machine. Voters will no longer have to individually write the names of their chosen candidates, as requied in the present system, since voting is done by darkening spaces opposite the names of chosen candidates. The PCOS machine then stores the scanned information until, and only at the end of the specified polling period.
Upon a specific command from the BEI, results in the particular precinct are then automatically tallied by the PCOS machine, which prints out copies of the ER that reflect the names of candidates and the number of votes garnered by each. When copies of the ER are physically distributed to the legally-designated recepients, such as the COMELEC and the NAMFREL, the BEI then digitally signs and encrypts the electronic copy of the ER using a password or private key, which allow for the transmittal of the ER over wireless public network lines to the corresponding city or municipal Board of Canvassers, as well as to the COMELEC central back-up server, among others. A separate automated canvassing system collates these ERs at the municipal, city, provincial and national level, and generates corresponding COCs, similar to the existing system. What is notable, however, is that throughout the canvassing process, human intervention is brought to a minimum, and accuracy is ideally increased because of the absence of human error.
Continued Skepticism and the Optimism of the Supreme Court
Some quarters, however, remain skeptical about the technology and over-all canvassing system chosen by the COMELEC for the 2010 elections. These skeptics, whose ranks include lawyers and IT professionals, point out that the PCOS machines approved for use by the COMELEC not only lack transparency in the recording, canvassing and transmittal of votes but are also susceptible to software attacks, glitches, and other technical problems.
One of the most obvious vulnerabilities underscored by detractors is the choice of the PCOS system itself, which requires the voter to shade spaces beside candidate names, which are, in turn, scanned, tabulated, and saved by the machine. Pointing to experience abroad, some IT professionals say that this scanning system is prone to errors and inaccurate reporting.
Some critics also point to the unreliable access controls built into the PCOS system, so that election cheats need only find a way to hack into the system and manipulate votes. Because of the electronic nature of the canvas, the results would not show any badge of fraud or any indication that they were actually tampered with. The machines, therefore, would actually facilitate rather than thwart widespread cheating during the elections. Some have even suggested that the PCOS machines themselves could already come rigged on election day, and none of us would be the wiser.
Still others paint a more chilling doomsday scenario and point to the possibility of a wholesale breakdown in the machines themselves or in the electronic canvassing of the ballots, resulting in a massive failure of elections. Already, malicious minds have implied that some entrenched interests are preparing to use widespread blackouts on election day to manufacture a failure of elections scenario on May 10, 2010.
In defense of the PCOS machines, however, Atty. Ferdinand Rafanan, COMELEC Law Department chief, said that the COMELEC’s chosen automation system still provides for adequate security features to safeguard the sanctity of the ballot. He points to multi-layer security mechanisms such as 128-bit encryption smart keys and passwords which are needed to start-up and operate the PCOS machines and to transmit results once the elections are completed. He also cites the print-out of unalterable audit log reports which can supposedly detect any fraudulent use or operation of the machines. In any event, because of the existence of paper-based ballots, Rafanan points out that the COMELEC will always have a failsafe alternative to refer to, should the PCOS machines fail on election day.
Still, these security features are not enough, at least to the minds of lawyer Harry Roque and his Concerned Citizens Movement (CCM). On July 9, 2009, Roque filed a petition before the Supreme Court seeking to enjoin the COMELEC from signing the poll automation contract with Smartmatic TIM Corporation, the joint-venture company considered the best complying bidder. Roque argued that under Republic Act No. 9369, any automated election must first undergo “pilot testing” in specified areas in the Philippines before full-blown automation can be conducted. That COMELEC failed to hold such pilot testing or did not require it in its automation contract shows that it abused its discretion in awarding the contract to Smartmatic TIM Corporation. Roque also said that the PCOS machines themselves do not satisfy the minimum system capabilities required by Republic Act No. 9369 to safeguard the integrity of the ballot. In particular, the petition cites the failure of the PCOS machines to “assure accuracy in the recording and reading of votes, as well as in the tabulation, consolidation/canvassing, electronic transmission, storage results and accurate ballot counting.”
In a 7-3 Decision handed down on September 10, 2009, however, the Supreme Court denied Roque’s petition and ruled that “pilot testing” is not required for the upcoming May 10, 2010 elections. Noting that the language of the law did require automation ”in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao” during the May 9, 2007 elections, the Court said that the COMELEC’s failure to automate at that time did not mean that it could not fully automate in subsequent electoral exercises. In the Court’s judgment, the intention of Congress in passing Republic Act No. 9369 was to fully automate all elections after the 2007 polls, regardless of whether automation was actually done in 2007.
In addition, the Court also ruled that the PCOS machines themselves met the minimum capability standard required by Republic Act No. 9369. The Court pointed to the COMELEC-prescribed 26-item checklist criteria which the PCOS machines passed with an accuracy rating of at least 99.995%. Finding no legal infirmity in the automation contract with Smartmatic TIM Corporation, therefore, the Court confidently said that “even though the [automated election system] has its flaws, COMELEC and Smartmatic have seen to it that the system is well-protected with sufficient security measures in order to ensure honest elections.” This conclusion was echoed by no less than the Chief Justice, Raynato Puno, in a separate concurring opinion, where he said: “Absent any capricious and whimsical exercise judgment on the part of the COMELEC, its determination of the appropriate election technology, as well as the procedure for its procurement, should be respected. The fear of automation failure should not overwhelm us.”
The practical effect of the Supreme Court’s September 10, 2009 Decision, of course, is to remove all legal roadblocks to the full automation of the 2010 elections. In the coming months, therefore, COMELEC is expected to conduct personnel training for about 160,000 personnel who will be operating the PCOS machines, and is also scheduled to release an initial 5% tranche of the P7.2 Billion contract to Smartmatic TIM Corporation.
But the Supreme Court’s confidence in the automated system, in stark contrast to its findings in the Mega Pacific decision of 2004, provides little comfort to nay-sayers who continue to prophesy gloom and doom on May 10, 2010. Indeed, the Supreme Court may be many things, but varied may its competencies be under the law, it cannot yet predict the future, much less, guaranty the success of the 2010 elections. Beyond this seemingly alarmist attitude, however, what is obvious is the public’s basic and persistent distrust towards both the government and the COMELEC tasked with implementing automation.
Few, if any, dispute the need for automation. But implicit in this need for automation is the honesty and integrity of the persons and institutions tasked to implement it. This is especially true with the upcoming elections, as fraud, now imbued with an electronic, and therefore, intangible character, will be much more difficult to detect, prove and correct. With what we have thus far seen, heard and known of the COMELEC, is it worthy of the Filipino people’s trust? And while we may certainly adopt the COMELEC’s “give it a try” stance now affirmed by no less than the Supreme Court, many are led to ask whether our democracy is that resilient that it will be able to adopt to such a drastic leap forward. The cliché holds true, therefore, now, more than ever: indeed, only time can really tell.
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