Insignificant and trivial electoral reforms

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AL S. VITANGCOL III

AL S. VITANGCOL III

The Senate Committee on Electoral Reforms and People’s Participation sent out invitations to the public to attend its public hearing scheduled on October 20, 2016. Eight proposed legislative measures are included in the agenda of the said public hearing.

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As an advocate of electoral reforms, particularly in the area of automated election systems (AES), I am rather disappointed at the substance of the Senate bills that were filed relative to the conduct of our elections.

I have written a series of articles, even outside of the realms of this newspaper, pointing out the deficiencies and loopholes of the Smartmatic-sponsored AES. Likewise, I have discussed the defects of Republic Act No. 8436, popularly known as the Automated Elections Law, as amended by Republic Act No. 9369. The enormous funding for the AES was initially provided for by Republic Act No. 9525 by appropriating a gargantuan amount of Php11.3B for the AES and other related services.

Pending Senate bills

Well, going back to the proposed legislative measures, the first one is Senate Bill No. (SBN) 301. In here, Sen. Miguel Zubiri recommends that senior citizens (SCs) and persons with disabilities (PWDs) be included in the scope of the Local Absentee Voting System. The Local Absentee Voting is a “system of voting whereby government officials and employees, including members of the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP) as well as members of the media, media practitioners including their technical and support staff who are duly registered voters, are allowed to vote for the national positions … in places where they are not registered voters but where they are temporarily assigned to perform election duties on election day.”

SBN 1111 is no different from SBN 301. It proposes again to expand the coverage of the Local Absentee Voting by including media practitioners, lawyers, and electoral staff of national candidates. Nothing contentious in these two bills.

SBN 307 simply intends for the Commission on Elections (Comelec) to regulate the rates of political propaganda and prevent the media outlets from increasing their rates at least a year prior to the start of the campaign period. During the campaign period, media outlets shall be required to provide registered political parties and their candidates a fifty percent discount for radio, television, and print advertisements. This is self-serving. This has no effect to the ordinary citizens on the street. It will only fatten the wallets of the traditional politicians and reduce the earnings of the exploitative media outlets. Again, nothing contentious — nothing to discuss or deliberate.

SBN 1178 similarly deals with campaign expenses. It proposes to increase the allowed campaign expenditure by an average of 130%. For example, from the current three pesos per registered voter, the limit will be increased to five pesos per voter. For the position of the President, the present limit of P10 per registered voter will be doubled to P20 per voter. This will just propagate the culture of spending and increase the political indebtedness of the politicians to their benefactors.

SBN 911 filed by Sen. Win Gatchalian, recommends to punish and penalize nuisance candidates. If the bill becomes a law, any candidate who would be declared “nuisance” shall be fined Fifty Thousand Pesos. Are these legislators serious? This will become another money-making venue on the part of some nefarious Comelec officials.

SBN 1108, in its explanatory note, “seeks to prevent the occurrence of electoral fraud and election-related offenses by increasing the penalties thereof and by imposing criminal liabilities against any member of the Board of Election Inspectors, Board of Canvassers and/or official of the Commission on Elections who aid, assist or participate, directly or indirectly to the commission of electoral fraud and other election-related offenses.”

Our past election experiences showed that electoral fraud cannot be prevented by imposing penalties, much more by increasing such penalties. Electoral fraud can be minimized by implementing stringent technical measures and plugging the perceived loopholes of applicable election laws.

Rethinking and redesigning the AES

On May 18, 2016, I wrote in this newspaper an article entitled “2016 NLE Aftermath: Time to Rethink and Redesign the AES.” I stated there that, “In this year’s national and local elections, Comelec utilized new Vote Counting Machines (VCM) nationwide for counting manually filled-out paper ballots. As you have guessed correctly, the Smartmatic-supplied AES exhibited deficiencies and shortcomings, both on the hardware, software, and peopleware.”

As such, I proposed to redesign the AES and discussed at length a couple of possible systems that can be developed and used in our subsequent national and local elections. I added, “Will the Automated Election Law allow the use of the above-proposed systems? If not, then the law in itself should be amended.”

My subsequent May 20, 2016 article, the third part in the series, is straightforward in its recommendations –
“How about that contentious Section 12 of R.A. No. 8436, as amended, which the COMELEC has been harping on to defend their choice of Smartmatic? Said Section 12 states in part that, “the system procured must have demonstrated capability and been successfully used in a prior electoral exercise here or board.” As discussed in my previous articles, the Vote Counting Machines (VCMs) were freshly manufactured in China and had never been used in a prior electoral exercise here or abroad. Same thing with the other Smartmatic supplied applications systems – they are all designed solely for the Philippines and had never been used in a prior electoral exercise. Why would they change the “scripts” (both in 2010 and in 2016) if it had been used already in a prior election? Logic tells us that Smartmatic’s system had not even been fully tested, otherwise that “script” thing would have not occurred.”

I continued, “Considering that this Section 12 had been violated time and again, there is no reason why it cannot be amended to ‘legalize’ alternative election systems. The pertinent portion of Section 12 of R.A. No. 8436 can be amended to read as follows, ‘the system procured must have demonstrated capability and been successfully ­tested in extensive simulated electoral exercises.’ ”

Preventing electoral fraud

My insight tells me that electoral fraud can be minimized by putting in place stringent technical measures and plugging the perceived loopholes of election laws and not by increasing the penalties intended for such.

As I recall, I filed a Petition for Mandamus before the Supreme Court, docketed as G.R. No. 224027, to compel the Comelec to take precautionary steps to ensure that no electronic cheating would take place during the 2016 NLE, specifically by submitting an inventory of the MAC (Media Access Control) addresses of all its VCMs, computers, servers, and transmission devices which were used on election day.

Likewise, I asked the high Court to direct the Comelec to make a list of all the IP (Internet Protocol) addresses used in its Virtual Private Network, together with their geographical locations, that were used during transmission. Indeed, this might have prevented some shenanigans from thwarting the genuine will of the electorate – for they now recognize that some people already knew how they would cheat electronically.

My petition served as a model for a subsequent Petition for Mandamus filed before the Supreme Court, docketed as G.R. No. 224116, by another lawyer – Atty. Al C. Argosino (who was recently appointed as the Deputy Commissioner of the Bureau of Immigration).

In his petition, Atty. Argosino asked the Supreme Court to direct the Comelec to provide, this time, the International Mobile Subscriber Identity (IMSI) of all the SIM cards and the International Mobile Equipment Identity (IMEI) of all the communication devices used during transmission of election results.

In a Resolution dated May 3, 2016, the Supreme Court required the Comelec to comment thereon within ten days from notice. On May 31, 2016, the Supreme Court issued another Resolution consolidating the two petitions and ordering the Comelec to file its Comment within ten days.

As expected, the Comelec delayed the filing of their Comment and instead filed several motions for extension of time within which to file their responsive pleading. Finally, the Comelec, through the Office of the Solicitor General, filed its Consolidated Comment on August 19, 2016. The case is still pending before the High Court.

Smartmatic has a grip on our automated election systems because of the defects of the law. It can even be inferred that the law was deliberately or intentionally screwed up to favor this foreign firm.

We need proposals and legislative measures that will strengthen the AES. We need relevant Senate bills that will amend the Automated Election Law in order to correct its perceived deficiencies and break the tie that binds Comelec to Smartmatic. We need an honest-to-goodness overhaul of the Automated Election Law.

We don’t need laws that will only affect the financial status of traditional politicians. We don’t need insignificant and trivial electoral reforms.

(The Senate public hearing set on October 20, 2016 was cancelled a day before the said schedule.)

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