EIGHTEEN months have passed since the last elections in May 2016, the Joint Congressional Oversight Committee (JCOC) has not convened yet to deliberate on the performance of the automated election system (AES) used then and to discuss the AES technology to be used in the 2019 midterm elections. Most of the stakeholders like the AES Watch, Tanggulang Demokrasya, Philippine Computer Society Foundation, Solidarity for Sovereignty, Nationalist Filipinos Against Foreign Intervention, Citizens National Guard, etc. have been very eager to know about the most important milestone in our electoral exercise for the forthcoming 2019 elections; that is, the decision of the JCOC on what technology to use.
But worse than 18 months is the pending promulgation of the Implementing Rules and Regulations (IRR) of the AES Law, or RA 9369, by the Commission on Elections (Comelec) since 1997 and that’s 20 years ago. Even in the JCOC hearings during the chairmanship of Sen. Koko Pimentel, former Comelec Chairman Andy Bautista was reminded of their obligation to promulgate the IRR. Unfortunately, until Bautista stepped down recently, he was not able to do so. I am sure even Acting Chairman Christian Robert Lim will not lift a finger to comply with the AES law to promulgate the IRR before his retirement in February 2018. Seven years gone for him without any initiative. If the AES law had the same penal provisions as the Data Privacy Act, or RA 10173, vis the ComeLeak case they experienced before the 2016 elections, the IRR would have been done immediately.
Anyhow, let’s review what is stipulated in the AES law with regard to JCOC. Section 33 of RA 9369 states that the JCOC “is hereby created…to monitor and evaluate the implementation of this Act. A written report… shall be submitted by the Advisory Council within six months from the date of election. It shall conduct a comprehensive assessment and evaluation of the performance of the different AES technologies implemented and shall make appropriate recommendations to Congress.” The Comelec Advisory Council (CAC) never failed to submit its report to the JCOC on time since 2010. The only problem was that Comelec never bothered to implement the CAC recommendations. To know more about CAC, read my three-part article in this column entitled “The Advisory Council: What is its real value to Comelec?”
Further, the former DICT Secretary and CAC Chair Rodolfo Salalima said in August 2017 that the CAC “envisions the creation of an ecosystem of interoperable, multiple and mixed technologies where providers can reasonably participate as election technology providers in our country’s elections. CAC encourages more diversity, variety of election service providers, local and international, and less dependency, if not total freedom, from only one source or provider.” He noted that in the past three elections, the Comelec used the AES technology from one vendor (i.e., Smartmatic).
Why did Salalima take particular note of that one vendor? It’s because Bautista made pronouncements in the June 2017 tech fair that the Comelec was considering six options on what AES solution to implement in 2019. These are: Option 1—refurbishment of the precinct count optical scan (PCOS) machines used in 2010 and 2013 (that’s Smartmatic); option 2—exercise again the option to purchase (OTP) the VCMs leased in 2016 (that’s Smartmatic again); option 3—the combination of refurbished PCOS machines and possible purchase of 2016 VCMs (that’s Smartmatic again, and again); option 4—lease of new optical mark reader (OMR) machines (Smartmatic?); option 5—use of other systems besides an OMR technology (Smartmatic’s Direct Recording Electronic or DRE technology?); and option 6—any combination of the previous five options (i.e., there’s no choice there except Smartmatic!). Bautista mentioned nothing about Filipino ingenuity. However, the CAC was able to encourage innovators of Precinct Automated Tallying Systems (PATAS) and Transparent Election System (Tapat) to participate in the tech fair.
Bautista has already forgotten what he said in the August 2015 JCOC hearing: “Insofar as the Tapat system is concerned, we were invited to witness the demonstration at the Pamantasan ng Lungsod ng Maynila in July, myself and Commissioner Guanzon attended this demonstration. I think we have publicly stated that we think that this system has promise and that we will look into it. Except that again given time constraints for the 2016 elections, I don’t think that we can meaningfully consider Tapat. But as I said, put it on record, for subsequent elections, we will look into Tapat.”
Sen Pimentel asked: “For the record, Chairman (Bautista), you are not raising the legal doubt as to Tapat, ‘no?” Bautista replied, “No, we have not.”
Recntly, I was asked, “Was AES Watch invited to the Comelec stakeholders meeting recently? PPCRV was there!” I replied, “Nope!” He added, “Naku, the six options were down to the first three options!”
To prevent these first three options from prospering, the “real” stakeholders are requesting the JCOC to convene immediately as the 2019 elections might fall again for the fourth time into the hands of Smartmatic.