In August, 2002, Namfrel and other civil society organizations filed an impeachment complaint against then COMELEC Commissioner Luzviminda Tancangco for alleged graft and corruption, betrayal of public trust, and culpable violation of the Constitution. The complaint was endorsed by then Rep. Monico Puentevella.
Not long after the complaint was filed, CBCP-NASSA and Namfrel launched the People vs. Tancangco Movement, a multi-sectoral group that pushed for the impeachment of Tancangco. Some 100 organizations and hundreds of individuals representing civil society, the church, business, academe, and others, attended the launching.
But despite all their efforts, they only managed to convince 57 congressmen to vote in favor of the impeachment – about a dozen or so votes short of the required number, which is one-third of the House. Congress dismissed the complaint on February 3, 2003, finding it “not sufficient in substance”.
Needless to say, all those organizations supporting the impeachment were stunned and they wondered why, with all the evidences submitted, so few of the congressmen sided with the complainants. Inquiries were made and one explanation stood out: many congressmen were worried of possible retaliation from the COMELEC, considering that they and/or their supporters and partymates among the city/municipality mayors and councilors were facing election cases. Plausible.
Namfrel’s legal counsel commented thus: “This is one strong argument for separating the two functions of the COMELEC into two distinct agencies.”
Let’s analyze that.
COMELEC has basically two functions: a) administer all elections for national and local positions and all referenda; and b) adjudicate election cases.
What qualifications should the election officials executing the two functions possess? “Function a” needs men and women who have management expertise and strong systems orientation, while “Function b” needs legal minds and a strong sense of fairness.
It is extremely difficult to find people who possess expertise in both functions. In 2010, seven lawyers composed the COMELEC. No management man, no systems man. That’s why the automation technology chosen for the May, 2010 elections was inappropriate. That’s why the Commission faced so many problems during the implementation. That’s why the CF cards had to be replaced just one week before elections. That’s why vote counting was not transparent and therefore the results, especially in the local contests, were questionable. That’s why there were long queues during Election Day. That’s why the Random Manual Audit (RMA) resulted in an accuracy level way below the required 99.995%. Only the landslide victory of President Noynoy Aquino saved the day for us.
The COMELEC abdicated its responsibility for managing the electoral process to Smartmatic, in effect subcontracting the whole process to a private company. One of my colleagues said, “the COMELEC subcontracted our democracy to a foreign company.” And not even to a reputable one at that, if we are to believe half of the materials on Smartmatic that’s available in the Internet.
Even the manual Barangay and SK elections in October, 2010, with only one level of consolidation, had a major problem, for which the COMELEC had to issue an apology. Printing and delivery of the ballots were not completed, resulting in some 2,000 barangays not being able to hold elections on that day.
And today, two short months before the mid-term elections, we are still facing major problems!
I have nothing against lawyers, but their education, experience, and expertise are not what are required to run an efficient electoral process. In the almost three decades that I have been working with, or against, the COMELEC, I have only encountered one (and only one) past Chairman and maybe one or two commissioners who met the required qualifications for both functions. Obviously, searching for the right candidates is not an easy task. Add to this the political influences that enter the picture during the selection process and we get what we get today – a far-from-ideal Commission.
On the other hand, it is difficult for a non-lawyer to handle COMELEC’s quasi-judicial function. During the ten months and nineteen days (May 3, 2011 to March 22, 2012) that I was a COMELEC Commissioner, I reviewed and signed a total of 443 resolutions of election cases assigned to the other Commissioners, plus 87 of my own decisions, including 70 that have been promulgated and 17, pending promulgation. I also issued 16 separate opinions (dissenting, concurring, separate). But to accomplish these, I had to conduct an average of two “case conferences” with the six lawyers in my staff, every week! Considering my more than 50 years of IT and systems experience, I could have better spent this time on the two committees that were assigned to me – Election Administration and Technological Capability – and deferred the adjudication of cases to those with legal experience.
If we seriously want to improve the electoral process, it really doesn’t make sense to continue on with this kind of set-up. The administration of elections and the adjudication of election protests should ideally be separated into two agencies. In fact, were it not for the clogged dockets of our judges, the latter function could even be passed on to the regular courts. Or perhaps a special “Election Court” could be established, much like the Tax Court.
Many countries have their Election Commissions functioning solely for the administration of elections. And some of them do not even have a single lawyer among the commissioners.
But there’s a major obstacle. This change will require an amendment of the Constitution. So we’ll have to wait.
Unless … we try to simulate the ideal situation as early as now.
If the President starts appointing into the COMELEC, professionals with management and/or systems expertise, as I believe he should, and if the COMELEC en banc would pass a resolution voluntarily dividing themselves into two groups – the four lawyers (minimum number, according to our Constitution) to take care of the adjudication of election protests and the other three, to take care of the administration of elections – then the country would experience better-run automated electoral exercises from 2013 (or 2016) onwards, even as we wait for the Constitution to be amended.
I hope that the Commission considers this proposition, even if it comes from one of their most ardent critics – ME!
The original version of this article appeared in a November, 2010 issue of BusinessWorld. The author has updated the article to reflect the current situation.
The last time I checked, all members of the Commission on Elections (COMELEC) are bona fide Filipinos, as they should be, according to the Philippine Constitution. Yet, from the way they made decisions in the past two years, one would think they were not. Their major decisions have mostly favored foreign companies, which led us to think that they don’t trust Filipino IT professionals. Let’s review some of those decisions:
First, the COMELEC chose a solution that was completely foreign – foreign hardware, foreign software, foreign integrator/implementor. On November 12, 2008, we presented to the commissioners a local solution which, at its most elaborate version, would have cost the taxpayers only a third of the P11.3 billion that the COMELEC spent on the automation of the May 10, 2010 elections. We presented this PC-based solution to the commissioners, not as vendors, but as a group of Filipino IT professionals who believe that should the COMELEC espouse this solution, it can then simply source the PCs locally and outsource the implementation to local systems integrators. (A significant benefit is that all the purchased PCs can be donated to public schools after every election, while at the same time avoiding the costly warehousing of the equipment in between elections.)
After our presentation, Chairman Melo remarked, “This is a good solution; if we don’t get the budget we’re asking for, we can use this.” Our jaws dropped upon hearing that remark. At that time, the COMELEC was still asking for a budget of more than P20 billion. The solution we presented would only cost P3-4 billion. We all thought that if they believed our solution was good, then why even bother asking for such a huge budget.
Second, TIM, at one point, wanted to back out of the joint venture for the reason that while they would own 60% of the joint venture company, control would mostly be in the hands of Smartmatic, the foreign company. Instead of rectifying this anomaly, the COMELEC prevailed upon TIM, the Filipino company, to accept this arrangement, or be brought to court.
Third, Section 12 of Republic Act 9369 says, “Once an AES technology is selected for implementation, the Commission shall promptly make the source code of that technology available and open to any interested political party or groups which may conduct their own review thereof.” On the other hand, Section 9 says, “The Committee shall certify, through an established international certification entity … not later than three months before the date of the electoral exercises, categorically stating that the AES, including its hardware and software components, is operating properly, securely, and accurately, …” (Emphases supplied)
What these two paragraphs in the law mean is that the source code of the Automated Election System (AES) technology should have been made available for review by Filipino IT professionals (who were going to review the code free of charge), through their political parties, as early as July, 2009 and to an established international certification entity not later than October 9, 2010 (allowing for a four-month review), thus favoring the locals, timing-wise.
But what did the COMELEC do? It awarded a P70 million contract to Systest Labs, an American company, in October, 2009, and sent word to the locals that they will have to wait until Systest finishes its review and submits its report, before the COMELEC would make the source code available to the locals. To add insult to injury, while COMELEC made all the necessary documents available to Systest for their intensive review in their US offices, it would only make the documents available to the locals under a controlled environment. Rightfully, the locals eventually boycotted that review.
Fourth, the COMELEC recently asked the International Foundation for Electoral Systems (IFES), yet another foreign organization, to audit the manner by which automation was implemented in the last elections, while denying the Center for People Empowerment on Governance (CenPEG), a U.P.-based organization, documents that it needs to do a comprehensive evaluation of the the same elections. Saying that the COMELEC probably wants an unbiased opinion as the reason for its asking a foreign organization to do the audit, does not hold water; in fact, it is a naive, yet insulting statement. What made it conclude that IFES is unbiased and CenPEG is not?
So, what’s with the COMELEC and why doesn’t it trust Filipino IT professionals? Doesn’t it know that this attitude sends the wrong message abroad? For the last thirty years, Filipino software companies have been spending much of their capital in marketing their services to companies in the western world. To assist these companies, the software industry has been asking the government to contract out its large IT projects to local systems integrators in order that the latter could use the experience in marketing abroad. And the government has responded positively to this plea. Government agencies such as the LRA, SSS, DFA, BIR, and many others, have contracted out most of their major development work to local systems integrators.
Except the incumbent COMELEC.
This COMELEC effectively awarded the election automation contract to a foreign company which has no experience in an election exercise of this magnitude, that uses paper-based ballots. This inexperience, many IT practitioners believe, could have been one of the reasons for the major problems the project encountered during the election process. But thanks to our COMELEC, this foreign company was given its first experience in this kind of system – experience that it can now use to market the same services in other countries, like Indonesia. (Perhaps, as a friendly neighbor and co-member in the ASEAN, we should warn Indonesia about the many problems that were encountered in our May elections.)
And by the way, yet another reason why the COMELEC should not even entertain thoughts of purchasing the PCOS (Precinct Count Optical Scan) machines that were used during the May, 2010 elections is that the Philippines would forever be hostage to the foreign company which owns the Intellectual Property Rights to the software that runs each and every unit.
This article appears in the Opinion pages of the September 21, 2010 issue of BusinessWorld.
The COMELEC has declared that the May 10, 2010 automated elections using PCOS was successful, although it did admit that the process could stand some improvement. A recent SWS survey showed that some 70% of Filipinos were happy about the way automation of the last elections was implemented. That, of course, is the public’s perception and not a technical opinion. In fact, most IT professionals, with the exception of the COMELEC’s Advisory Council and Smartmatic’s technical staff, are of a contrary opinion.
So, without going into technical details, let us analyze whether the 2010 automated elections was truly successful, as COMELEC claims; or not, as IT professionals maintain? Let’s consider just two issues: speed and accuracy.
On speed. President Noynoy Aquino was proclaimed on June 9, 2010, or 30 days from the May 10, 2010 elections. Not bad. But wait; former President Joseph Estrada was proclaimed on May 30, 1998, or only 19 days after the May 11, 1998 elections! Much, much better. And the country did not have to waste P11.3 billion to automate that electoral exercise.
In both instances, there were no big disputes regarding the outcome of the presidential election. In both instances, the voting public readily accepted the results. What was common to these two electoral fights? They were both landslide victories. This factor then appears to be the key to quick acceptable results. Just look at the close contest in this year’s vice-presidential race. A formal protest has even been filed.
But the P11.3 billion was not the only expense that we could have saved ourselves from. The country also did not have to suffer many months of anxiety over the strong possibility of failed elections – anxiety that started the moment COMELEC awarded the automation contract to Smartmatic-TIM. Consider the following occurrences: TIM attempting to divorce itself from the joint venture agreement with Smartmatic; wires catching fire during the first public system testing; failure of the communication system during the dry runs conducted by Smartmatic; delay in the delivery of the machines, caused to a certain extent by the transfer of manufacturing from Taiwan to Shanghai; delay in the order and delivery of ballot boxes; delay in the printing of ballots; discovery of errors in the CF cards one week before election day (extremely unforgivable!). If one would write a post-evaluation report on the project, a most appropriate title would be “How not to implement a project”.
Surely, we don’t want to experience this kind of anxiety on such an important political exercise as elections, ever again.
On accuracy. The Random Manual Audit (RMA), done on a very small sampling of the precincts, but which took many weeks to complete … no, I should say, which took many weeks before a report would be released to the public, showed an accuracy rate of 99.6%. That does not meet the mandated 99.995% accuracy rate. But even the claimed 99.6% rate is questionable. No explanation was given as to the methodology used in computing that rate, which led some IT people to conclude that the RMA was a sham.
And then, there are the null votes – 1.5 million and 2.6 million votes in the presidential and vice-presidential positions, respectively. If the reason for these null votes is the inability of PCOS to read some marks, then that’s a form of disenfranchisement – something that would be negligible in manual voting and manual precinct counting (only when handwritten votes are completely illegible).
Because precinct counting is not public, because the audit is unreliable, and because this COMELEC is by far the most non-transparent since we regained our democracy in 1986, we are not sure if those who won, really won and those who lost, really lost, except in those cases when all pre-election surveys and exit polls support the results.
Not content with the monumental problems the COMELEC encountered during the implementation of the PCOS system and perhaps deluded by the seemingly successful outcome, the COMELEC now wants to purchase the machines! It’s bad enough that it made the wrong choice of technology, it now wants to perpetuate the error by buying the machines!
Why does COMELEC want to buy the machines? Because, according to some commissioners, the COMELEC only needs to pay 30% of the purchase price. One commissioner even went as far as saying that the machines are being offered at a 70% discount.
According to COMELEC, the lease-purchase agreement provides that it has the option up to December, 2010 to buy the machines at 30% of the purchase price. Of course! The rental price in the previous contract is roughly 70% of the purchase price. That’s the P7.2 billion that we, the taxpayers, paid.
Why shouldn’t COMELEC purchase the PCOS machines? First, it’s not the most appropriate technology for Philippine elections. (Personalities in the local IT industry are willing to debate this issue with the COMELEC, its Advisory Council, Smartmatic, and their supporters in the leadership of the PPCRV.) Second, and this is perhaps the least important, new technology may render PCOS obsolete in the next three years. Third, repair of the machines after three years of non-use may prove costly. Fourth, and most important, warehousing these machines would be very expensive.
Let me expound on the last one. Remember the Mega-Pacific machines that the COMELEC bought in 2003? The COMELEC has been paying for their storage cost because after more than six years and despite the Supreme Court order, it has not succeeded in returning the machines to the supplier. Years ago, I was told that the COMELEC was spending P3.9 million annually for the rental of the warehouse. About two months ago, a reporter who researched on it told me that the COMELEC is, as it turns out, paying P220 per square meter rental (not air-conditioned), or a total of P29 million a year!
That’s only for 1,991 units. If the COMELEC therefore were to purchase the 82,200 PCOS machines, and assuming the same per square meter cost, then we, the taxpayers, courtesy of the COMELEC, would be paying almost P1.2 billion a year, or P3.5 billion every three years, just to warehouse them. Little wonder why Smartmatic has been pressuring COMELEC to purchase the machines. It’s Smartmatic-TIM who’s paying for the warehousing right now.
This is only one of the issues that the COMELEC does not talk about. There are many more.
This article appears in the Opinion pages of the August 31, 2010 issue of BusinessWorld.