The absence of implementing rules and regulations (IRR) of the automated election law or RA 9369 has allowed Comelec to circumvent the said law such as by non-implementation of the required source code review, continuity plan, voter-verified paper audit trail (VVPAT), etc.; and, by proclamation of winning candidates not based on electronically transmitted and digitally signed election returns (ERs) and certificates of canvass (COCs) by the Board of Election Inspectors (BEIs) and Board of Canvassers (BOCs).
These are often discussed in the Joint Congressional Oversight Committee (JCOC) headed by Sen. Koko Pimentel and Cong. Senen Sarmiento, now the DILG head. But surprisingly, the salient points stipulated in Section 33 of RA 9369 related to the function of the JCOC were never discussed. Let’s review these points and assess correspondingly what has already transpired since its enactment, to wit:
“An Oversight Committee is hereby created composed of seven members each from the Senate and the House of Representatives, four of whom shall come from the majority and three from the minority, to monitor and evaluate the implementation of this Act.”
Nothing happened about this from 2010 to 2013! But after the 2013 national and local elections (NLE), the JCOC has been actively calling regular meetings. In fact, there’s a JCOC meeting tomorrow (September 17) in the Senate.
“A written report to the Senate and the House of Representatives shall be submitted by the (Comelec) Advisory Council (CAC) within six months from the date of election.”
The CAC has never missed to submit necessary reports to JCOC since 2010.
The CAC Resolution in 2010 states, “The CAC recommends that the Comelec NOT exercise the option to purchase the AES (of Smartmatic). The AES encountered too many problems that need to be resolved before this particular system can be used again…For the May 2013 elections, the Comelec does not need to use the same PCOS machines…” Further, the CAC recommended in 2013 “(1) The preparation for the selection of AES 2016 technology should be done as soon as possible; (2) Comelec to study the terms of reference to give consideration to Philippine-developed technology; (3) There is a need for Voter’s Confirmation Slip (or the “receipt”) as third redundant system to protect the integrity of the voters’ choice.”
Comelec’s AES preparation has always been late and this caused constricted timeline for the next election. It happened in the past two NLEs and it is now happening for 2016; a case in point, Comelec said that Smartmatic has no more time to repair/refurbish the existing 82,000 PCOS machines. After 2016 NLE, JCOC should impose the ruling that Comelec should never handle the preparation of 2019 elections as we can already predict that they will prepare the preparation in 2018. Moreover, the “gawang-Pinoy” is discussed below. Regarding the “receipt,” only Comelec is insisting that the ballot would serve as the VVPAT; CAC & AES Watch say otherwise and JCOC should intervene.
“The oversight committee shall conduct a mandatory review of this Act every twelve (12) months from the date of the last regular national or local elections.”
Nothing has been heard so far whether RA 9369 was complied with by Comelec in 2010 and 2013 or if the Act would need amendment/s. Perhaps, the JCOC may discuss this tomorrow.
“The JCOC shall conduct a comprehensive assessment and evaluation of the performance of the different AES technologies implemented and shall make appropriate recommendations to Congress, in session assembled, specifically including the following:
1. An assessment and comparison of each of the AES technologies utilized, including their strengths, weaknesses, applicability or inapplicability in specific areas and situations;…”
We, in AES Watch, have never heard yet of JCOC’s comprehensive assessment and corresponding recommendations to Congress, in session assembled. Though there were substantial reports/topics discussed since 2013 such as the digital lines causing unwanted additional counts, the non-transmission of the 23.65% election results by 18,314 precincts (i.e., breakdown may be downloaded at https://dl.dropboxusercontent.com/u/85303072/AES%20Watch/Failed%20Transmission%20in%202013%20NLE.pdf), the intervention of the Smartmatic technician in the transparency server at PPCRV during canvassing, the non-implementation of digital signatures provided by ICTO/DOST, the non-transparency of the system integrator, and the use of rewritable compact flash (CF) cards, we are still awaiting for the final output of JCOC to the Congress. However, Comelec went ahead with its decision to lease the 93,977 PCOS machines from Smartmatic without awaiting JCOC’s final decision.
“2. An evaluation of their accuracy through a comparison of a random sample of the AES election results with a manual tabulation, and the conduct of similar tests;” The JCOC has yet to come up with its own analysis of the random manual audit (RMA) as stipulated in RA9369 Section 29. NAMFREL’s observation in 2013 NLE includes RMA rules and guidelines wereloosely interpreted, PCOS machines did not meet 99.995% accuracy, incomplete data from clustered precincts (CPs) on both manual and automated counts, the choice of CPs did not meet acceptable statistical methods and techniques for random sampling, Comelec encountered RMA deployment and logistical issues, the RMA training was insufficient and ineffective, the “root cause determination” in RMA in some cases took longer than expected, no transparency in the validation of RMA, and the settlement of the AES and RMA was not clear. These observations were seconded by the CAC and JCOC may just merely mandate to Comelec to comply with the 99.995% accuracy of the PCOS machines for 2016 NLE and that the RMA rules be strictly implemented and incorporated in the IRR.
“3. As to the scope of AES implementation in the subsequent elections, provide for recommendations as to whether any of the following should be adopted: (a). Further test application of the AES or a particular AES technology used in the 2007 elections, whether in the same or others areas; (b). An increase or enlargement of areas for implementation of the AES or an AES technology and not a full implementation; or, (c.) A full implementation of the AES.” The JCOC may clarify tomorrow whether they could enforce not a full AES implementation due to transmission problems, deployment and logistical issues, etc.
In the early part of 2014, JCOC had asked Comelec to determine the number of defective PCOS machines in the warehouse. Former Chairman Brillantes failed to give the said figure and his En Banc just approved the recommendation of the CAC to re-use the old PCOS machines last year. To date, Comelec still doesn’t know how many are defective and just went ahead with the lease of 93,977 machines.
“4. As to the kind of AES technology, provide for proposals as to whether: (a). A particular AES technology should no longer be utilized for being obsolete, inapplicable, inaccurate or with a defect which cannot be remedied; (b). An enhancement or improvement is needed to an AES technology which was used in the 2007 election to make it more functional, appropriate and accurate; (c). A particular AES technology is already appropriate and should be utilized fully for subsequent election; or (d). The testing or adoption of new technologies which may have emerged after the 2007 elections is needed.” We are yet to hear from JCOC if the Smartmatic technology used in 2010 and 2013 should no longer be utilized or they would just rely on the decision of Comelec. Surprisingly, we heard JCOC in the last hearing that they directed the DOST to fully support the new AES technology using tablets (e.g., Filipino-made TAPAT election system) in 2019! This emerged to be the decision of JCOC when Chairman Bautista relayed to JCOC that they find TAPAT compliant with RA9369 though it cannot be used in 2016 but in 2019 instead.
We never learned our lessons in the past! The IRR is still hanging in the air. Messrs. Chairmen of JCOC, please follow up Comelec to release the IRR soonest and to include the rules governing JCOC; that is, for example, should Comelec get approval from JCOC before anything else? Or better yet, upon presenting the JCOC recommendations to the Congress, will that be the proper time for Comelec to act?