WILL the court case between the Venezuelan Smartmatic corporation, the Commission on Elections’ supplier-contractor for the precinct count optical scan (PCOS) machines, and the Canadian Dominion Voting Systems corporation, supplier of the software to Smartmatic, affect the conduct of the 2013 midterm election even if Smartmatic loses its case currently pending before the Delaware Chancery Court?

No it will not, claimed Cesar Flores, Smartmatic Asia Pacific president, during the Joint Congressional Oversight Committee on the Automated Election System (JCOC-AES) hearing on Wednesday.

He was responding to the fears and expert opinions made by various election watchdog NGOs that the Smartmatic-Dominion case in Delaware, USA, may severely affect the 2013 midterm polls to the point of forcing the Commission on Election (Comelec) to shift back to manual voting.

The Comelec entered into a P1.8-billion contract with Smartmatic for the purchase of 82,000 voting machines used in the 2010 elections. The purchase includes Smartmatic’s guarantee that its system and machines will work, as required by law (RA 9369), “properly, securely, and accurately.”

Flores during the committee hearing maintained that there is nothing to fear because the Dominion is covered by the licensing agreement, the Smartmatic signed with the latter in 2009.

The Smartmatic official further explained that under the agreement Dominion will provide the needed services indicated in the license, even after the 2010 elections.

The agreement also stipulates what will happen if the Comelec decided to exercise the option to purchase the Precinct Count Optical Scan (PCOS) machines, which Comelec did.

“Having said that, the Comelec’s decision to sign the option to purchase already ties Dominion to any services related to the license,” he said.

This means that even if Dominion has claimed to have terminated the agreement, it retroactively still has to comply with all its commitments to the Comelec when Smartmatic executed its contract with the Comelec.

This is a point critics are worried about. What if Dominion insists that it has no more commitments to the Philippines after it broke up with Smartmatic?

Flores tries to counter this fear by noting that the fact the Dominion never contacted Comelec to inform the it that it can’t use Dominion technology shows that the legal battle between Smartmatic and Dominion will not have any effect on the Philippine end user.

“Dominion has never expressed that we cannot use the technology. They have not contacted the Commission on Elections or anyone in the Philippines that they cannot use the technology,” Flores added.

Critics say this is preposterous wishful thinking.

The clarification made by the Smartmatic official was in response to the tirades of various representatives of different poll watchdogs who were also present during the congressional hearing on November 28.

The hearing focused on discussing the Smartmatic-Dominion court case and its possible repercussions on the 2013 midterm polls,

Former Comelec commissioner Gus Lagman; Evita Jimenez of the Center for People Empowerment in Governance (CenPEG); Bishop Broderick Pabillo, chairman of the National Secretariat for Social Action (Nassa) of the Catholic Bishops Conference of the Philippines (CBCP); and representatives of other organizations have aired their respective positions on the Smartmatic case and their concerns on the possible effects on next year’s polls.

Lagman’s credible misgivings
Lagman, a former Comelec commissioner who alone among the commissioners is an IT expert, has expressed concern over the absence of a solid assurance form the Comelec that the system will work without glitches and with all the safeguards that we absent in the 2010 election.

He noted that Comelec now has less than six months before the 2013 midterm elections.

He said that there are still critical issues that have not been resolves and demonstrated publicly especially the technical enhancement on the PCOS that should have been incorporated into the software to prepare the system for the 2013 polls.

He also accused of Smartmatic of deliberately keeping the dispute with Dominion secret. The company did not inform the Comelec about the brewing case with its software provider when it sold the PCOS machines to the Philippines in March 2010.

Another issue raised by Lagman is the failure of the Smartmatic PCOS machines in accuracy when they were used for mock elections last July.

According to Lagman a PCOS machine is only allowed one error in every 20,000 ballot marks, but on the mock elections conducted during a House of Representatives hearing the accuracy rate of the PCOS machines was only 97.21 percent. The figure translates to 557s error in every 20,00 marks.

“This error rate can make or unmake candidates for mayor, vice mayor, congressman and the bottom half of local councilors, provincial board members and even senators,” he noted.

Lagman also suggested to the Comelec to quickly study all available alternatives for the automation of the 2013 while there is still time.

He also recommended the cancellation of the purchase contract for the PCOS machines adding that there are sufficient legal reasons that can justify the move.

CenPEG’s Evita Jimenez for her part expressed the belief that without Dominion, Smartmatic would not be able to access the source code. That would make it impossible for Smartmatic’s technicians to make necessary modifications on the software.

Jimenez noted that if Comelec will not be able to use the source codes for them to make some modifications and enhancements on the system, then chances are the poll body will be using a fake or unauthorized source code that could produce more glitches and errors.

Comelec Chairman’s frustration
Comelec Chair Sixto Brillantes expressed his frustration over what he considers to be recycled issues the poll watchdogs keep on raising despite the explanations and clarifications already given by the commission.

He is also saddened by the fact that the legal issue between Smartmatic and Dominion is being interpreted and discussed by non-legal individuals based on the legal pleadings that have been filed in the US.

He also questioned the poll watchdoga why they are relying so much on and interpreting issues stated in the legal pleadings submitted by one of the parties in the case. Brillantes added that these critics are not even lawyers.

“This I feel is very, very sad. They interpret allegations on cases filed in the foreign country. And they are making their own conclusions, but they are not even lawyers.”

Brillantes, also reiterated that while the Smartmatic-Dominion case is considered a problem it is not a major concern to the point that it would have serious repercussions on the conduct of the 2013 automated elections.

He also suspects that the groups who kept on raising the same issues again and again just want to attract attention.

Senator Alan Peter Cayetano has accepted the clarification made by Smartmatic but he made it clear that the committee will require the supplier to provide them more proof that the Comelec will not be bared from using the Dominion technology regardless of the result of the court case.

He said that he is looking the issue in the two conflicting ways of Smartmatic, one one hand, that there is no reason to be concerned and, on the other hand, of the poll watchdogs, who want obtain an assurance from Dominion.

The Joint Congressional Oversight Committee on the Automated Election System will have another hearing this week.

In the next hearing, Cayetano asked Comelec to make a formal presentation showing the difference between the 2010 automated elections and the coming 2013 midterm polls.