The Supreme Court (SC) has finally put an end to the non-compliance of the Commission on Elections (Comelec) in implementing one of the safeguards stipulated in the Automated Election System (AES) Law or RA 9369 during the oral argument on March 17, 2016; that is, the printing of the Voter Verified Paper Audit Trail (VVPAT) or Voter’s Receipt (VR). The SC ruled, 13-0, in favor of the petition of former Sen. Richard Gordon, Chairman of Bagumbayan – Volunteers for a New Philippines, Inc., and it ordered the Comelec to enable the VVPAT feature of the Vote Counting Machines in accordance with the minimum system capabilities stipulated in Sections 6(e), (f) and (n) of Republic Act No. 9369; to wit:
(e) Provision for voter verified paper audit trail;
(f) System auditability which provides supporting documentation for verifying the correctness of reported election results; and,
(n) Provide the voter a system of verification to find out whether or not the machine has registered his choice.
In the petition of Sen. Gordon, who is the principal sponsor and author of the AES law, he called the Comelec a “recidivist” in violating the AES Law as it removed every safeguards of the AES like source code review, digital signatures of the Board of Canvassers and Board of Election Inspectors, VVPAT, ultraviolet scanning of the ballots, and random manual audit. In 2009, months before the 2010 elections, AES Watch and other election watchdogs raised these safeguards to Comelec as very critical risks if not implemented. Unfortunately, these merely fell on deaf ears!
Let’s recall the decision of SC on March 8, 2016 wherein Comelec was given a non-extendible period of five days (5) days to comment on Sen. Gordon’s petition. Instead of complying with SC’s order, Comelec iled a motion to extend the five-day period but the SC did not grant it. So Comelec thought of enabling the screen verification of the VCM as ubstitute to VVPAT. But such move is not mandated in the AES law. Then Comelec raised fears of the possibility of a no-election scenario, failure of elections and even postponement of elections if VVPAT will be printed due to long voting period of twenty (20) hours or more, delay in the preparation of elections due to reconfiguration of SD cards, and other reasons. Comelec became a doomsayer in this regard. It’s a twist of fate as former Comelec Chairman Brillantes used to damn AES Watch as doomsayers! After some deliberation, the SC eventually set the oral argument on March 17 about the appeal over the VVPAT.
Before the start of the oral argument, there were murmurs buzzing around why PPCRV Chairman Henrietta de Villa was seated in the reserved area of the respondent Comelec. Ms. Elena San Agustin of Tanggulang Demokrasya (TANDEM) approached her and asked, “Why are you seated there?” Ooops!
At the start of the oral argument, there was pure silence when Solicitor General Florin Hilbay read his opening argument. Then we got all stunned when Sen. Gordon delivered his “Now you see, now you don’t” opening argument extemporaneously without “codigo.” Sen. Gordon called it “Now you see” scenario when Comelec was demonstrating the VCM publicly with the printing of VR. Conversely, he called “Now you don’t” scenario when Comelec announced in the Joint Congressional Oversight Committee on February 16, 2016 that no VVPAT would be printed. He repeatedly said “Now you see, now you don’t” several times to stress the point.
Here’s the most interesting part of the oral argument when the counsel of Sen. Gordon, Atty. Rodolfo Reyes, highlighted the Comelec’s continuous, deliberate and unabated pattern of deception, to wit:
• Comelec bids out the automated voting system on the basis of the requirements of law, and purchases/leases the equipment accordingly;
• Comelec conducts public demonstrations using the machine with all the security features, leading the public to believe it is compliant with the law;
• Comelec officials then surreptitiously agree among themselves not to enable the security features of the machine;
• A few weeks before the elections, Comelec makes formal announcements or issues General Instructions disabling the security features; and,
• When someone complains, they claim it’s too late to do anything or engage in fear mongering that the elections will be postponed if they follow the law.
Atty. Reyes further elucidated that there’s ample time to enable the VVPAT, he made this clear by showing a timeline. He argued that Comelec was able to reconfigure the 76,000 CF cards recalled in 2010 elections in less than a week. Do you still remember that the PCOS machines failed to count correctly during the final testing and sealing on May 3, 2010, a week before the elections?
Further, Atty. Glenn Chong, a resource person of Sen. Gordon, explained to the justices that Comelec’s computation of twenty (20) hours voting period was incorrect. Atty. Chong refuted that Comelec added in their computation those activities not part of the voting process like start of voting, closure and transmission, etc. Hence, he said that the voting period would only last for 12 hours and not otherwise. That only goes to show how unreasonable Comelec has been even in doing arithmetic. Atty. Chong concluded by saying that the best solution when a voter yanks the VR is to use a simple pair of scissors. Simple! The conversation between Chief Justice Maria Lourdes Sereno and Atty. Chong may be viewed at: https://www.youtube.com/watch?v=7TIDPMMBhPc&feature=youtube
The final decision of the SC was a vindication of all election watchdogs except for one! The SC argued that the AES law needs no further interpretation as it is very clear that VVPAT is mandated therein.