SOLICITOR General Jose Calida, acting in his role again as ‘Tribune of the People’ warned the Commission on Elections (COMELEC) to be “vigilant” with its partner, ‘Smartmatic’ of Venezuela “in the possible commission of electoral fraud” and to also adhere to all elections laws for the country to have credible elections this coming May 9, 2022.
In a letter dated March 24, 2022 addressed to the entire commission headed by Chairman Saidamen Pangarungan, Calida also suggested several measures that the poll body can undertake to ensure the transparency and credibility of the coming political exercise where Filipino voters are to elect both national and local officials starting with the country’s next president.
Calida send his letter to the COMELEC a day after the National Press Club (NPC) and two other civil society organizations trooped to the Supreme Court to file a petition for mandamus to compel the poll body to be faithful in the implementation of its mandate for a clean, credible and transparent elections this May (see related article in this issue).
In the statement released by the OSG, it noted that both Comelec and Smartmatic officials are still facing criminal charges before Branch 46 of the Manila Regional Trial Court for violation of the Cybercrime Prevention Act filed by the Department of Justice on June 2, 2017, after reversing an earlier resolution by the Chief Prosecutor of Manila dismissing the complaint filed by then ABAKADA partylist Rep. Jonathan dela Cruz.
In the criminal complaint filed by the DOJ, among those charged for violation of Sections 4 (a)(1), 3 and 4 of Republic Act 10175 (Cybercrime Prevention Act of 2012) against Comelec IT experts, Nelson Herrera, Frances Mae Gonzales and Rouie Penalba and, Smartmatic head of technical support team Marlon Garcia and his subordinates Mauricio Herrera and Neil Baniqued.
Section 4 (a)(1) of RA 10175 penalizes the access of a computer system without any authority while Section 3 penalizes the intentional and reckless altering of computer data.
Meanwhile, Section 4 penalizes the act of hindering or interfering with the functions of a computer and computer network by inputting, deleting and altering computer data and programs, without any right or authority.
Smartmatic had admitted to making changes in the “script” for the COMELEC’s ‘transparency server’ during the 2016 elections without authority from the entire commission.
On the other hand, the COMELEC’s “IT experts” were also charged for agreeing to the changes and then tried to cover-up Smartmatic’s transgression.
The OSG noted that in 2017, Smartmatic also admitted that its election system was “manipulated” during an election in Venezuela that resulted to an additional 1 million votes.
To ignore the President
It can be recalled that twice in 2019, Pres. Duterte gave his unsolicited advice for the COMELEC to get rid of Smartmatic as the country’s automated election system (AES) partner.
In his speech on May 30, 2019, during his visit to Japan, the President, as reported by the Presidential Communications Operations Office (PCOO) said:
“I would like to advise Comelec now—hindi ko na lang hintayin—dispose of that Smartmatic and look for a new one that is free of fraud.”
The Chief Executive made the statement after being asked by one Filipino Overseas Worker (OFW) why the country continues to get the services of Smartmatic.
Noting that accusations of election cheating still persists, Pres. Duterte said this has created “an environment of hostile attitude against that Smartmatic.”
“You (COMELEC) have three years. Kakatapos lang ng election. Palitan na ninyo kasi it is no longer acceptable to me, to the people and even to the congressmen who are here,” he added.
Although the COMELEC, thru its spokesman, Dir. James Jimenez claimed they are “open” to the President’s suggestion, it went unheeded in the end.
In December 2020, the COMELEC awarded Smartmatic more than P637 million for the “refurbishment” of 97,345 ‘VCMs’ (vote counting machines) and the supply of 109,745 ‘SD’ (secured digital) cards for use by the VCMs.
This was followed by an award of another P402,725,549.70 last May 5, 2021 for the supply of the software to be used in the coming elections, among others.
Records show that since 2010, Smartmatic has always been the service provider of choice by the COMELEC, despite its spotty reputation.
Second time for the OSG to warn COMELEC
In his letter to the COMELEC, Calida seconded the NPC’s call to allow the public, thru accredited observers, to witness the printing of ballots and election returns; allow observers to have access to the configuration and replication of SD cards; disclose “critical information” on where the VCMs, SD cards and all its parts, attachments and tools; disclose the complete transmission diagram of the VCMs to include the number, locations and operators of the transmission route server; and, allow the review of the source codes to be used by the transmission routers.
This would be the second time for the OSG to take a close look at what the COMELEC has been doing and warn of consequences in its role as the people’s tribune.
Last March 7, 2022, the OSG was forced to sue the COMELEC before the Supreme Court after entering into an agreement with online news site, Rappler Philippines, to not only report on election news but also, serve as its ‘fact checker.’
The OSG was forced to seek the help of the SC after the poll body insisted on proceeding with its agreement with Rappler despite widespread criticism and opposition.
The petition forced the COMELEC to temporarily suspend its memorandum of agreement (MOA) with Rappler, until the matter has been addressed by the Supreme Court.
The NPC was the first to question the Rappler-COMELEC memorandum of agreement (MOA) as soon as it was signed by the parties last February 24, 2022.
The NPC noted that Rappler is a foreign-funded news outlet, the reason why it lost its corporate registration in 2018. Aside from this, NPC President Paul M. Gutierrez noted that Rappler is also among the least trusted media outfit in the country and known for its bias towards the Liberal Party and Vice President Leni Robredo; its chief executive, Maria Ressa, has been convicted by a Manila court in June 2020 for cyber libel for maligning the name and reputation of a businessman.
The NPC noted that the COMELEC would be defeating its own claim of upholding the credibility of the coming elections by signing up with Rappler.
OSG proposals for credible elections
To better serve public interest and the conduct of a credible and transparent elections, the OSG also proposed the following to the COMELEC:
Accounting and inventory of the ballots already printed without public observers “in a manner consistent with the State’s policy of ensuring honest, fair and credible elections;
The review and test of the source codes in the manner provided by law;
The conduct of random post-election audit of the contents of the SD cards; and,
The identification and disclosure of election and data servers controlled separately and jointly by and between the COMELEC and Smartmatic, including their locations and the identities of personnel manning and supervising them.