UNTIL the retirement of Brillantes in 2015, the digital lines issue was never resolved. To summarize the promises broken by Brillantes during his term: 1) support to the Filipino IT for Elections, or FIT4E; 2) source code review; 3) investigation of the 60-30-10 phenomenon; 4) investigation of Marlon Garcia’s intervention during the 2013 mid-term elections at PPCRV’s transparency server; 5) investigation of non-transmission of 24 percent of 2013 election results (i.e., around 18 million votes); 6) investigation of the non-stop printing of ballots after May 2013 elections; 7) the release of the final report on the disreputable digital lines; 8) the promulgation of the implementing rules and regulations (IRR) of RA 9369, or the Automated Election System (AES) law; and 9) the final report of Bro. Eddie’s recount (see below).
Would you believe that no IRR has been promulgated by the Comelec since 1997? The AES law was enacted in 1997 as RA 8436 and was amended 10 years after as RA 9369. That’s 21 years ago and nobody from the Comelec en banc was able to address this very serious concern. Even former Chairman Andy Bautista was challenged to come up with an IRR in a joint congressional oversight committee (JCOC) hearing presided over by Sen. Koko Pimentel. In response, AES Watch offered then to help. Yet, before his retirement, former Commissioner Christian Lim didn’t bother to look into this matter even when he was twice appointed officer in charge of Comelec; that is, when Brillantes retired and when Bautista resigned. Nonetheless, considering all the Comelec-related laws, IRRs were promulgated (e.g., senior citizens, etc.). So where is the problem?
To continue Episode VI, there was another overwhelming case discussed in the JCOC hearings on August 14 and 28, 2014 about the votes of senatorial candidate Eduardo Villanueva (Bro. Eddie) at Precinct 19 of Barangay Concepcion, General Tinio, Nueva Ecija in the 2013 national elections. Based on the “Comments on the Minutes for Voting and Counting of Votes” at the said precinct as discussed in the hearings, the number of official ballots used was 665, the number of unused ballots was 202, there were no ballots rejected, and a comment written “Failed to Transmit” for “Date and time PCOS transmitted to M/CBOC” (i.e., municipal/city board of canvassers). Out of the 665 ballots used, the PCOS count for Bro. Eddie as decrypted from the ballot images was only 278 while the one-by-one count from physical ballots was 366. There was a staggering difference of 88 just for that precinct alone.
During the hearings, the first theory of Brillantes was that the inconsistency was possibly due to the appreciation of overvotes in the court’s manual count of Villanueva’s votes. Because of the huge discrepancy of 88 in one precinct, he put forward another theory that the ballots were tampered. Lawyer Anicia Marquez, who led Bro. Eddie’s followers in the petition to do a recount, countered Brillantes’ theories. She asked how the followers of Bro. Eddie could have tampered with the ballots when the ballot boxes were under the Comelec’s control.
At the same time, she disproved Brillantes’ second theory, saying that the compact flash (CF) cards were the ones tampered with as those are rewritable media. The hearing then focused on Smartmatic’s non-compliance to deliver write-once-read-many (WORM) cards vis CF cards used in the 2010 and 2013 elections (i.e. including the 2016 elections). It was explained that once the WORM card is written with election results, the data therein cannot be changed anymore vis CF cards that are rewritable like the normal USB flash memory cards used to back up computer files. Former Commissioner Christian Lim affirmed to the JCOC then that WORM cards for the PCOS machines were specified in the 2009 request for proposal (RFP).
It was a surprise to many attendees, including members of the Comelec Advisory Council and the technical evaluation committee, that Smartmatic did not comply with that crucial bidding requirement and that should have been a tipping point for Comelec not to accept the PCOS deliveries. And that great mistake was not even corrected in the 2013 and 2016 elections. Both Brillantes and Bautista let go of this critical obligation of Smartmatic though recently retired Lim confirmed this anomaly! Did Comelec raise any legal action against Smartmatic about this deficiency since 2010? No!
The following year, 2015, more controversial issues came out before the 2016 elections. One of this was the signing of the Smartmatic contract on January 30, three days before Brillantes’ retirement on February 2, relating to the refurbishment of 82,000 PCOS machines for use in 2016 elections. Reasons behind the contract: 1) Comelec claimed that there was no more time as the AES preparation for 2016 would be delayed; and 2) Smartmatic argued that they were the only one with the sole authority to refurbish the PCOS machines. The contract was processed through direct contracting or negotiation and did not pass through any public bidding (RA 9184) when in fact there were third-party maintenance providers.
Unexpectedly, lawyer Emerald Ladra was moved out as the Comelec law department head on February 17, 2015, for coming out in December 2014 with the weighty statement, “It behooves upon us to ensure that…the repair and maintenance of PCOS machines…be made to undergo the tests of validity under RA 9184.”
On February 19, news spread that the Integrated Bar of the Philippines (IBP) had filed a petition with the Supreme Court to stop the negotiated contract with Smartmatic as it violated RA 9184. The opinion of the IBP (https://www.dropbox.com/s/1lso94p92dh1jmn/IBP%20SC%20Petition.pdf?dl=0) coincided with the legal opinion of Ladra.
(To be continued)