Citizens against an imperious Comelec

Strategic Perspective
René B. Azurin

Posted on May 09, 2013

AFTER SELF-POSSESSED legal luminary Sixto Brillantes Jr. arrogantly dismissed as unnecessary the demands of critics that he not violate specific provisions of the poll automation law -- IT security protocols that will help ensure the transparency and integrity of an automated election -- the Commission on Elections chairman is now scrambling to cover his back after two formal legal cases were filed against Comelec last week.

Notwithstanding his earlier (implied) pronouncement that he was imperiously above the law, he suddenly reveals that software owner Dominion Voting Systems has finally released the source code of the PCOS [Precinct Count Optical Scanner] voting and counting machines to Comelec and that Comelec will make this available for public review. How Brillantes's releasing such source code a mere five days before election day can possibly comply with the explicit provision in the law that this be promptly made available for public review as soon as the technology for the automated polls is selected is probably only explainable by legal luminaries like himself.

In the first of the cases filed, 34 concerned Filipino citizens -- including myself -- signed as "authors" of a formal petition sent to the United Nations Human Rights Committee (UNHRC) wherein they complain of the violation of their basic rights under the provisions of the International Covenant on Civil and Political Rights (ICCPR), an international treaty to which the Philippines is a signatory. By the way, the UNHRC is not to be confused with the UN Commission on Human Rights or its replacement, the Human Rights Council. The UNHRC is a United Nations body made up of appointed experts who meet regularly to assess the compliance of 162 UN member states to the ICCPR. The UNHRC also is tasked with considering individual petitions relating to whether violations of the provisions of the ICCPR have been committed against citizens in the 114 countries that have ratified the Optional Protocol (the Philippines is one of these). In effect, the UNHRC functions "as a mechanism for the international redress of human rights abuses".

The concerned Filipino citizens are represented in this landmark action by legal counsels Harry L. Roque Jr, Gilbert T. Andres, Joel R. Butuyan, and Romel R. Bagares.

In essence, the petitioners argue that "The Philippines has the obligation to ensure the authors' right to the free expression of their will as electors -- as guaranteed under Article 25 of the ICCPR, during the 10 May 2010 and the 13 May 2013 automated elections." The argument is that, pursuant to the aforementioned Article 25, "The security of ballot boxes must be guaranteed and votes should be counted in the presence of the candidates or their agents. There should be independent scrutiny of the voting and counting process and access to judicial review or other equivalent process so that electors have confidence in the security of the ballot and the counting of the votes."

The petitioners also argue that "The Philippines violated the authors' right to the free expression of their will as electors during the 10 May 2010 automated elections, and continues to violate such right in its conduct of the 13 May 2013 automated elections -- since it gave control of the public and private keys to _all_ the PCOS machines to [foreign technology provider] Smartmatic." Citing Comelec's Bid Bulletin No. 10, issued by Comelec's Bid and Awards Commiittee on 15 April 2009 (a public document), this "clearly states, /inter alia/, that the "digital signature shall be assigned by the winning bidder to all members of the BEI and the BOC (whether city, municipal, provincial, district)." The petition also cites the opinion of noted IT professor, Dr. Pablo Manalastas (a faculty member of both the Ateneo de Manila University Computer Science Department and the UP Department of Computer Science), who states, "Since Smartmatic has this responsibility [of generating the access keys], it will have possession of all BEI's private keys, and this will give Smartmatic the capability to change the [Election Results] of any precinct in the entire country, resulting in massive computerized cheating in case this capability is exploited by Smartmatic."

Further, the petitioners argue that "The Philippines violated the authors' right to the free expression of their will as electors during the 10 May 2010 automated elections, and continues to violate such right in its conduct of the 13 May 2013 automated elections -- since there was no review of the source codes used for the 10 May 2010 elections." Such a source code review is mandated by Section 14 of Republic Act 8436 (as amended by R.A. 9369), to wit: "Once an AES technology is selected for implementation, the Commission shall promptly make the source code of that technology available and open to any interested political party or groups which may conduct their own review thereof." The petitioners argue that, "The framers of Republic Act 9369, the Amended Automated Election System (AES) Law, realizing that the process of computerized counting of vote marks on paper ballots will be done in secret by the computer, provided an alternative that may be acceptable as a substitute to public counting -- source code review. If the source code of the program running on the PCOS computer can be reviewed by the community, then we will know how our vote marks are interpreted, how votes are assigned to the selected candidates, how votes are tallied, what data are saved for back up later, how the precinct ER EML file is generated, how it is digitally signed by the BEI, how the transmission to the municipal canvassing computer and other destinations is carried out, what details are placed in the audit logs and whether these details are sufficient, etc. With source code review conducted by people we trust, the computerized counting of votes, although carried out in secret by the PCOS computer, will be revealed to us, and so we can accept computerized counting as if it were public counting.... Nevertheless, the COMELEC failed to have the source codes used by Smartmatic during the 10 May 2010 elections reviewed."

In the second of the cases that Brillantes and his complicit Comelec officials will have to contend with, former Senator Richard Gordon -- the principal author of Republic Act 9369 (the Poll Automation Law) -- petitions the Supreme Court to issue a Writ of Mandamus "compelling the Respondent Commission on Elections to comply with the provisions of Section 14 of Republic Act No. 8436, as amended by Republic Act No. 9369, which obliges the Respondent Commission to obtain the source code for the computerized voting machines to be used in the May 13, 2013 elections, and to allow all political parties, candidates, and concerned entities to review the same."

R.A. 9369 author Gordon explains: "Under the automated election system, a voter does not have to write down the name of the candidates he wishes to vote for. He simply shades certain circles corresponding to the names of the candidates voted for, and inserts his ballot inside the computerized voting machine. Whether or not the computerized voting machine counted his ballot correctly is not easily assured or discernible. The voter will just have to assume that the software running the computerized voting machine is trustworthy.... Voter reliance on the trustworthiness of software running the computerized voting machine will require a basis. That is why Section 14 of Republic Act No. 8436 (as amended by Republic Act No. 9369)*//*was enacted by the Congress."

Gordon pointedly continues: "Section 14 of Republic Act No. 8436, as amended by Section 12 of Republic Act No. 9369, has been in the statute books since January 2007. In the years following, concerned citizens and civic groups have repeatedly urged the respondent Commission to comply with the mandate of the law. Sadly, respondent Commission has ignored the statutory mandate. As of this writing, respondent Commission said that it is dispensing with its duty concerning the source code because the national elections is just a few weeks away.... As if the foregoing callous inaction of the respondent Commission is not unsettling enough, equally unsettling is the fact that, in 2010, the incumbent chairman of the Commission on Elections, the Honorable Sixto Brillantes, Jr., was the legal counsel of then presidential candidate Benigno Aquino III of the Liberal Party (LP). It is public knowledge that in the ongoing campaign for twelve (12) senate seats, President Aquino III is asking the electorate for a 12-0 sweep for his senatorial candidates running under the LP banner. With the serious problem regarding the source code unresolved, perhaps President Aquino and Chairman Brillantes know something the voters do not."

Petitioner Gordon warns that "what he intended [with R.A. 9369] for good to safeguard the sovereign will of the people in electing their leaders could now be used by unscrupulous personalities to subvert that will, starting with the baseless and malicious refusal by Respondent Commission to implement mandatory provisions of law." Ah, but legal luminary Brillantes irritably claimed that he must be the sole arbiter of what the election law requires, did he not? ("/Di ba kami ang magpapatakbo ng eleksyon?/")

Ominously, Gordon concludes that, "When the electorate seriously doubts the credibility of the election, the situation is ripe for social unrest."

Actually, the portents for post-election unrest are already manifesting themselves. Just yesterday, the Ang Kapatiran party issued a categorical statement that it will "reject results of all PCOS machines unless checked with a parallel manual count procedure." Says Ang Kapatiran exasperatedly, "The COMELEC has had ample time to undo the shortcomings of the Melo Commission but, from all reasonable indications, Chairman Brillantes has not had the determination to pursue it. As a result, the intent of Congress to establish an AES process with all safeguards against fraud is again highly vulnerable to massive cheating on an unprecedented scale."

Like Gordon and the petitioning concerned citizens, Ang Kapatiran concludes, "The right of suffrage is a lynchpin in our democracy already weakened by corruption and poverty, and for election results to be managed solely by Smartmatic and its machines with no room for validation through human intervention, will inevitably bring the country dangerously close to anarchy." Indeed.