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With Due Respect

Legality and technology

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The less-than-perfect results of the mock elections conducted by the Commission on Elections (Comelec) reignited legal and technological controversies. Despite some glaring glitches, Comelec Chair Sixto Brillantes Jr. pronounced the make-believe polls a success. He assured the public that all the defects were “minor” and could in time be addressed satisfactorily.

Same old problems? Not satisfied with this assurance, several poll watchdogs, notably Kontra Daya and the Center for People Empowerment in Governance (CenPeg), complained that the same glitches that attended the 2010 polls marred the mock polls, showing that the Comelec has not learned its lessons and is not ready for the 2013 elections.

The mock polls were conducted in 20 voting centers in 10 areas nationwide. Some of the glitches are the failure of some PCOS machines to read ballots, delay in starting the machines, defects in electronic transmissions, and problems in inputting the pin codes.

The CenPeg identified 30 vulnerabilities of the PCOS system with 30 proposed safeguards, which the Comelec allegedly ignored. The CenPeg’s Bobby Tuazon lamented, “Since 2010, we have provided the Comelec with documents and cases of program errors. They had three years to prepare, assess and plug the loopholes but it is unfortunate that they are beginning to realize the problems just now.”

These vulnerabilities include PCOS machine malfunctions, defective compact flash cards, transmission glitches, canvassing connectivity problems, uncertified source codes, counting inaccuracies, long queues of voters due to wrong precinct clustering, vote-buying, violence and other irregularities.

Legality assured. In exasperation, Brillantes replied that if our people will not accept the PCOS automated system, then the Comelec would revert to manual election, sighing: “If they want to replace the PCOS, we should just go back to manual because we have no more time to conduct a new public bidding to procure another automated election system.”

Recently retired Comelec Commissioner Rene Sarmiento averred that the Supreme Court has already overruled the critics’ objections and the PCOS system can no longer be legally challenged.

Thus, Roque vs Comelec (Sept. 10, 2009, penned by Justice Presbitero J. Velasco Jr.) held that (1) pilot testing in the Philippines is not a condition precedent for full election automation, it being sufficient that the PCOS system procured by the Comelec had been tested abroad; and (2) the PCOS machines meet the minimum capabilities standards set by the law (Republic Act No. 8436).

Capalla vs Comelec (June 13, 2012, penned by Justice Diosdado M. Peralta) upheld the option-to-purchase agreement entered into between Smartmatic and the poll body, it being sufficient that Smartmatic agreed to fix the “alleged defects, glitches and infirmities” of the PCOS machines after they are actually purchased by Comelec.

Finally, CenPeg vs Comelec (Sept. 21, 2010, penned by Justice Roberto A. Abad) directed “the Comelec to make the source codes for the AES (automated elections system)… immediately available to CenPeg and all other interested political parties or groups for independent review.”

However, in a subsequent resolution dated April 12, 2011, the high court clarified that the Comelec can, prior to releasing the source codes, require CenPeg (1) to sign a nondisclosure agreement, (2) to submit its methodology for review, (3) to conduct the review in a restricted facility on a read-only basis, (4) not to take out the code or any part thereof or bring copying equipment, and (5) to submit to the Comelec a report after the review.

The high court stressed that the source codes remain the private intellectual property of Smartmatic, and that CenPeg cannot demand the same conditions for review that the Comelec allowed SysTest Labs, the international company that conducted the source code review that the law required as part of the process for completing the source code preparation.

I think that all these rulings are anchored on the entrenched legal doctrine that, absent grave abuse of discretion, the judiciary defers to the factual finding and technical expertise of specialized government agencies like the Comelec.

Constructive dialogue. Though the Comelec has won the legal wars, it should not belittle the observations made in good faith by the poll watchdogs. After all, Roque vs Comelec said that the high court could not assure “a successful election unmarred by fraud, violence, and like irregularities… Neither will it guarantee… the effectiveness of the voting machines and the integrity of the counting and consolidation software imbedded in them.”

Quite the contrary, the high court called on “all advocates of orderly and honest elections, men and women of goodwill, to smoothen the way and assist Comelec personnel in addressing the fears expressed about the integrity of the system.”

The automation system could be likened to a giant, state-of-the-art ship. Though legally certified as seaworthy, it can still totter and sink. Look at some of the mightiest ships: the “unsinkable” Titanic crashed into an iceberg on its first voyage; the proud US warship Guardian ran aground in the Tubbataha reef; and the luxury ferry Doña Paz ran afoul in bad weather.

In sum, I believe that in the spirit of transparency, not of faultfinding or nitpicking, and to minimize glitches and assure credible elections, the Comelec should heed the high court’s exhortation and continuously engage its critics in constructive dialogue. Legality does not guarantee technology.

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Comments to chiefjusticepanganiban@hotmail.com


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