Foreign control of 2010 polls raised in SC

by Aries Rufo,

Posted at Jul 29 2009 07:58 PM | Updated as of Jul 30 2009 04:18 AM

MANILA - The full automation of the elections violates the Constitution since it will be foreigners who will have total control of the poll exercise.

This cropped up during Wednesday’s oral argument in the Supreme Court on the taxpayers' suit questioning the decision of the Commission on Elections (Comelec) to pursue the nationwide full automation of the May 2010 national and local polls.

Justice Antonio Carpio raised the issue of foreign control of the polls after he pointed out the mandate of the Comelec, which is to supervise and administer the election process.

Carpio noted that the winning foreign bidder, Barbados/Venezuela/Netherlands-based Smartmatic, will have exclusive possession of the public and private keys for the operation of the electronic machines.

Carpio, one of the few IT-knowledgeable magistrates in the tribunal, explained that the public key allows access to the main system (or administrator) while the private key is essentially the password for the operation of the individual machines. The precinct count optical scan (PCOS) machines that will be used in the polls will count, consolidate and transmit the election results.

Public, private keys

Lead petitioner UP Professor Harry Roque told the High Court that it will be Smartmatic which will have control of both public and private keys. During the elections, the private key will be given to the Board of Election Inspectors (BEIs) in the precincts.

However, the BEIs will have to depend on the private keys (or passwords) to be given by Smartmatic. By having control of both public and private keys, the set-up, in essence, reposes to Smartmatic the exclusive control of the election process.

Roque said the scheme amounts to “complete abdication of the function of Comelec” to supervise the polls, which is unconstitutional.

In a Powerpoint presentation, Roque listed his arguments why the court should junk the automation contract with Smartmatic.

Roque said the scheduled nationwide automation should be set aside first since the Automation Law, Republic Act (RA) 8436, as amended by RA 9369, required that pilot testing be conducted first in two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao.

However, this provision was not observed by the Comelec when it pushed through with the nationwide polls.

Untested system

Roque said the legislative intent on partial automation was to test the system. He said there were at least 20 instances where the authors of the poll automation law intended that  pilot-testing first be held before any nationwide implementation.

Roque also raised the possibility of disenfranchising large number of voters and the possibility of a massive failure of elections because of an “untested system.”

Under automation, Comelec will cluster some 250,000 precincts into 80,000 precincts. Noting that many voters often cannot find their precincts under the manual system, Roque said the clustering could disenfranchise even more voters.

He also pointed out that only 30 percent of teachers who will man the polling precincts are computer literate.

One potential glitch that could lead to massive failure of elections is the fact that under an automated system, 1,630 special ballots will be printed. A minor mistake or a misalignment in the printing could lead to the ballots being rejected by the machines, thus further raising the potential failure of elections.

Failure of polls

Pressed by Carpio on the implications of a massive failure of elections, Roque said the Constitution is silent on this scenario. “The Constitution does not contemplate a failure of elections,” Roque said.

In any case, Roque said “it is still President Arroyo” that stays in power in case of a vacuum in leadership since the vice-president, the Senate president, and the House Speaker are no longer effectively in office after June 30, 2010. Besides, massive failure of elections would mean that none of the elective posts have been filled up.

Justice Antonio Nachura pointed out that the lack of confidence in the automation springs from a general distrust of the Comelec. “I believe I am not alone,” Roque said.

Apart from failing to comply with the basic requirement of pilot-testing, Roque also argued that the joint venture agreement (JVA) between Smartmatic and local partner Total Information Management (TIM) is a “sham.” (Read: Poll automation tie-up faces legal fix)

He said the fraud was evident when TIM almost backed out of the project due to “irreconcilable differences” with Smartmatic. The corporate squabble indicates that the JVA did not contain a unity of purpose as mandated by law.

Megapacific ghost

Besides, Roque said there are other firms involved in the automation project that are not severally liable with the consortium. This brings to fore the SC ruling in the Megapacific automation deal, which the High Court junked in 2004. (Read: Electoral reform: Comelec pins hope on automation)

In the Megapacific case, the SC ruled that all parties in the project should be held liable and responsible for any breach in the contract. But Roque said Jarltech, Kenmech, and Dominion companies are not covered by contractual obligation and liabilities.

Smartmatic has admitted that it will be Jarltech, together with Kenmech, which will assemble the machines. Dominion, on the other hand, holds the license to the software that will be used in the automation. Smartmatic has a licensing agreement with Dominion.

Justice Renato Corona, on the other hand, questioned Roque’s move to bring the issue to the High Court when there are still other legal options available, such as the Comelec and the lower court.

Roque said experience has shown that issues of “transcendental importance” such as the automation project “are acted more efficiently by the SC.” -- by Aries Rufo,