2019 elections: ‘Laway’ of Venezuelans or ‘talino’ of Filipinos

BY NELSON CELIS, TMT ON OCTOBER 3, 2018ANALYSIS
Posted by CenPEG, Oct. 25, 2018

Part 16
THE non-compliance saga continues in our ongoing Episode VIII when Comelec signed the option to purchase (OTP) with Smartmatic on January 8, 2018. The non-compliance of Comelec with our existing laws is not new to the election watchdogs. And it is even downplayed by the mainstream media and somehow blocked by some unscrupulous legislators.

Before analyzing the latest non-compliance of the Comelec-Smartmatic tandem, let’s just review the prominent ones in the past episodes, to wit:

—Comelec’s Request for Proposal in 2009 was not compliant with the provisions of the Automated Election System (AES) law, or RA 8436, as amended by RA 9369 (e.g., digital signing as defined in RA 8792, or Electronic Commerce Act of 2000, and the Supreme Court’s Rules on Electronic Evidence).
—Comelec violated RA 9184, or the Government Procurement Reform Act (GPRA), when it signed the OTP contract with Smartmatic in 2012.
—Smartmatic did not comply with the 2009 bidding requirements. Hence, Smartmatic as a company and the leased machines in 2010 and 2016, which were later acquired through the option to purchase (OTP) agreement in 2012 and 2018, respectively, carried the negative consequences of their non-compliances with the original RFP. It is interesting to note that no competitive bidding for PCOS machines happened after 2009. Everything was strategically swayed by Comelec to go for lease, then later proceed with acquisition through contradicting OTP with the GPRA.
—Comelec violated the GPRA when it directly negotiated with Smartmatic for the repair of 2010 PCOS machines. Do you remember that the chief of its legal department opined that the repair should undergo public bidding based on the provisions of GPRA? So furious at the chief for his candidness, Brillantes transferred the righteous chief to another department!
—Comelec had a hard time interpreting the AES law even if they have the brightest internal lawyers! Hence, they could not comply with all the technical provisions of RA 9369 (e.g., non-implementation of source code review, digital signatures, voter verified paper audit trail from 2008–2013 elections, etc.). Thus, non-compliances were carried over serially, like a domino effect, from the 2008 to 2016 elections and could happen again in 2019. This could have been the side effect of the Comelec’s non-promulgation of the Implementing Rules and Regulations (IRR) of RA 9369 since 1997.
—Comelec endlessly supports Smartmatic even though the latter had already told the truth about the defective PCOS machines before the Court of Chancery in Delaware. Brillantes, as well as Bautista, just blindly went ahead even when they knew the real facts.
—Comelec was charged by the National Privacy Commission for violating the Data Privacy Act, or RA 10173, due to their negligence in allowing a security breach in their databases. It was later dubbed the infamous ComeLeak!

As to the latest non-compliance with GPRA, Comelec was grossly whimsical as they did several extensions before the acceptance of the OTP. The OTP of 2016 VCMs should have been valid for one year, that’s from May 2016 to May 2017. Since OTP was not exercised in May 2017, for whatever compelling reason, the extension was not done once but many times; that is, from May 2017 to August 8, 2017, then to September 8, 2017, November 8, 2017, December 8, 2017 and January 8, 2018. Despite the inventive extensions, the contract was signed late on January 12, 2018. Again, the CAC did not recommend OTP of the VCMs, but rather pushed hard for the use of mixed technologies from local and international service providers. Losing the backing up from the CAC on the OTP, the Comelec spread the fake news that the CAC had recommended reusing Smartmatic. Comelec thought that the CAC would not do any drastic action. But instead they were surprised to receive a letter from the CAC chair, the Department of Information and Communications Technology (DICT), stating that the context of their recommendation was to have mixed technologies and stressed that they had not mentioned anything about Smartmatic.

Parts 2 and 14 of this article discussed, respectively, why Smartmatic should have not won the bidding in 2009 and why the OTP of 2012 was illegal in the language of the Government Procurement Policy Board (GPPB) of the Department of Budget and Management. Not only that, even the Comelec’s Advisory Council (CAC), headed by the then Commission on Information and Communications Technology, which is now the DICT, recommended not to exercise the OTP of the 2010 PCOS machines then. Nonetheless, Comelec was able to deceive the Supreme Court in 2012 to acquire the defective machines by invoking their favorite line, “There’s no more time!”

Thus, it appears now that history keeps repeating itself in the culture of Comelec; it doesn’t seem to bother its key officials even if they do it time and again. What happened in this year’s OTP was quite similar in OTP case in 2012 though GPPB had already opined then that “When the option to purchase expired…, there is nothing more to extend thereafter because the existing ‘offer’ that served as basis of the option to purchase had already ceased to exist…” Apparently, one may ask why would Comelec opted to adopt the OTP as a strategy to circumvent competitive bidding?

Nevertheless, weeks after the OTP signing, on March 27, 2018, just to ensure that the Supreme Court would not be deceived again by Comelec, Tanggulang Demokrasya filed the initiatory petition against Comelec and Smartmatic explaining about the absurd OTP and the late execution of a secret deed of sale. And to strengthen such petition, in July and September 2018, election watchdogs and individuals filed motions to intervene, asking the court to compel compliance from the Comelec of the procurement laws and such other actions which the high court may deem best for the Filipinos. This time, Comelec should already be ashamed to again use their lame excuse in 2012 that “there’s no more time!” and should not pressure the Supreme Court that the OTP is the only plausible solution.

Analyzing further on what could have been the main cause of these non-compliances, AES Watch elucidated before the joint congressional oversight committee (JCOC) on its hearing on August 6, 2018 (watch: https://www.youtube.com/watch?v=imse8IJYRz0&t=16s) that Comelec’s Project Management Office (PMO) was the culprit behind all the mess in past elections. Explicitly, the PMO gives the technical details on what the BAC should indicate in the RFP vis RA 9369, articulates the project activities needed to comply with all election-related laws, implements the AES on time without undue delays, does the problem and change management, handles the contract management, and ensures maintainability after usage of all the AES components. The past PMOs of Comelec failed to do that. Hence, it was recommended that the PMO for 2019 should already be the DICT. Comelec should not aspire any longer that their internal PMO can successfully conduct a real transparent 2019 elections.

By the way, with the unending non-compliances cited above, this led the camp of Sen. Dick Gordon to submit the proposed amendments to the AES Law to the JCOC for deliberation. It states that, “failure of Comelec to comply with any provisions of the AES law shall be considered prima facie evidence of election sabotage and shall be punishable by imprisonment and/or a fine.”

While AES Watch hopes that Senate President Tito Sotto, who has been very proactive in the JCOC hearings this year, should likewise push the JCOC to finally come up with its own performance evaluation of the past AES technologies. Besides, it’s also stipulated in RA 9369 that the JCOC has the power to recommend before the Congress what AES technology should be used in the next elections to come. It is not the function of the Comelec to decide on its own what AES technology should be employed in 2019. It is the JCOC!

The JCOC has already heard a lot of horror stories about Smartmatic’s system in its hearings — including the privilege speeches of Sotto exposing anomalies in the 2016 elections — so it must be decisive this time to compensate for its previous inactions. What struck me the most in the very recent JCOC hearing this month was Sotto’s statement that a former Smartmatic official will come out into the open in the next JCOC hearing to testify about the cheating activities in the last elections. Comelec, Smartmatic and their supporters were stunned by the announcement. What could be the ending for some dishonest Comelec and Smartmatic officials in the next months to come? Will they run away like Andy Bautista and Marlon Garcia?

(To be continued)>>>