Africa, Judith: Threats to the Philippines’ First Nationwide Automated Election

“A republic to be true to its name requires that the government rests on the consent of the people, consent freely given, intelligently arrived at, honestly recorded, and thereafter counted.” This was taken from the case of Bailles vs. Cabili, 27 SCRA 113 (1969). It is in line with the declaration of principles and state policies as embodied in the present constitution which provides that the Philippines is a democratic and republican state and as such, sovereignty resides in the people and all government authority emanates from them. (Article II, Section 1, 1987 Philippine Constitution) One of the methods wherein the people give its consent to the government is through election.

Election, as defined in one case decided by the Supreme Court, means the choice or selection of candidates to public office by popular vote through the use of the ballot. (Rulloda vs. Comelec, G. R. No. 154198, January 20, 2003). The right to vote in an election or simply stated, the right of suffrage, is a political right guaranteed, no less, by the Constitution. The provision on the qualifications of a voter, as prescribed in the Omnibus Election Code, is anchored on the constitutional provision on suffrage. It is said that in the exercise of the right to vote, each and everyone, regardless of stature in life, is equal. The rule is one voter, one ballot. The Filipinos exercise this right at least once every three years. During past elections, the right to vote is exercised by a registered voter by writing down in the ballot the names of the persons who the voter would like to serve this country.

This coming election, a different system of voting will be introduced. Although not entirely new, as a similar system had previously been used in some parts of the country – particularly in previous elections held in the Autonomous Region of Muslim Mindanao – it will be the first time that the system will be implemented nationwide. This new system involves the use of technology.

The May 2010 national and local elections will be adopting the automated election system. Automated election system is a system using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing, and transmission of election results, and other electoral processes. (Section 2, RA 8436, as amended by RA 9369).

The introduction to the adoption of the automated election system began as early as 1996 when optical mark readers (OMR) were used in the ARMM Elections. This was a pilot testing of the feasibility of converting to an automated election system from the manual election system. Then in 1998, although the target was to have an automated election of the national elective post nationwide, it was instead partially implemented again in the ARMM. In 2008, the election, yet again, in ARMM was this time a fully automated election system which led to the decision to implement the same in the entire archipelago this coming May 2010.

For the past few months, the election fever never cooled down. Quite the opposite, the heat continues to intensify day after day. Election-related topics, whether expressed in the news, views, or opinions, are playing within the spectrum of confidence or apprehension. Some reports have been quite alarming as they try to insinuate that with this system of voting, there will be massive failure of election. While some are quickly dozed off with the assurance from the COMELEC that contingency plans, up to Plan D, are in place.

Authority of the Commission

The plan to have a national automated election system was supposed to materialize as early as 1998 during the May national elections. This was the intention of the lawmakers when they enacted Republic Act No. 8436 or the “Election Automation Act of 1997” as approved on December 22, 1997 by then President Fidel V. Ramos. RA No. 8436 is the law which granted the Commission on Elections the authority to use the automated election system starting with the May 11, 1998 national and local elections and during subsequent national and local electoral exercises.

The purpose of adopting the automated election system is to improve the election process by ensuring that the secrecy and sanctity of the ballot is maintained through a transparent and credible process which shall make the results fast, accurate and reflective of the genuine will of the people. This is espoused in the declaration of policy as stated under Section 1 of Republic Act 8436, as amended by Republic Act 9369.

However, automated election, as earlier mentioned, was not conducted in the 1998 elections and elections subsequent thereto, save for certain elections conducted in the Autonomous Region of Muslim Mindanao. In 2004, the anomaly involving the awarding of the contract for automation to Mega Pacific Consortium who had not participated in the public bidding rendered the contract void as decided by the Supreme Court. The contract on automation executed between Mega Pacific eSolutions, Inc. and the COMELEC was declared void due to violations of the law and grave abuse of discretion on the part of the COMELEC. (Information Technology Foundation of the Philippines vs. COMELEC, G.R. No. 159139, January 13, 2004).

Manual election system was still implemented from the 1998 national election up until the 2007 local election and the barangay election that followed. It was in January 23, 2007 when Congress passed the amendatory law RA 9369, otherwise known as the Poll Automation Law, which now applies in the preparation and conduct of the 2010 elections.

Under the Election Automation Act of 1997, the automated election shall be limited to the election of president, vice-president, senators and the party-list system. (Section 6, RA 8436). This has since been amended by the Poll Automation Law to include elective provincial and city or municipal officials in the automated election.

Paper-based Ballot and the PCOS

There are two types of automated election system: one is the paper-based election system, while the other one is the direct recording electronic election system. In the paper-based election system, paper ballots will be used for the casting of votes, while an electronic device will record, count, tabulate, consolidate and transmit the results of the vote count. In contrast, the direct recording electronic election system shall use electronic ballot displays where the voters can cast their votes, then the data will be processed by a computer program, and the election results will be transmitted electronically.

This coming May 10, 2010, the elections shall be conducted using the paper-based election system. The electronic device chosen for the poll automation is the Precinct Count Optical Scan (PCOS) machine where the paper ballots marked by hand by the voters will be fed into the machine and the same will be scanned, and the corresponding votes made will be recorded.

The same PCOS machines will be used to count the votes at the precinct level. It is also equipped, by attaching a transmission medium, to electronically transmit the voting result to its corresponding canvassing center.

Concerned Citizens

Commission on Elections (COMELEC) Chairman Jose A.R. Melo was quoted in a news article saying that this coming election will be the biggest single automated election ever conducted in the whole world.

As the country brace for this full automation of the national election, a number of concerns have been raised. The system has been facing the usual unfavorable response to change such as overwhelm, apprehension and confusion. Questions about the system have been brewing up. Individuals and groups from the different sector of society have been voicing out their concern, and demanding response, on this new system of voting.

Generally, concerns focus on the reliability of the electronic devices that will be used in the poll automation and the level of awareness and readiness of the voting public. Specifically, the matters that reached the news include delays in the delivery of the machines, dependability of the counting machines, signal problems, availability of electrical power supply, and the level of awareness of the voting public.

The more important concern is whether the non resolution of the problems raised will lead to a failure of election and disenfranchisement of the people’s vote.

Delivery Dilemma:

Early on, doubts have been raised on whether the number of machines specified in the contract will be produced and delivered in time. There were questions on the capability of Smartmatic-TIM, the winning bidder of the automation contract, to produce the required 82,200 units of PCOS machine.

The timely delivery of the machines, which was to be made in several batches, has to be done in time because the Poll Automation Law, under Section 11, mandates that there must be field testing and a mock election event in one or more cities/municipalities. A technical evaluation committee must certify, not later than three months before the date of the electoral exercise, that the machine is operating properly, securely, and accurately. The conduct of the field testing and the mock election are among the bases for the certification.

Despite this, the delivery of the machines has been subjected to constant delays due to numerous reasons allegedly beyond the control of the winning bidder.

Initially, the delay in delivery was caused by the transfer of the manufacturing plant from Taiwan to China. According to Smartmatic-TIM, there was a need for the transfer because the manufacturing plant in Taiwan was devastated by a typhoon which occurred sometime between September and October 2009.

By December 2009, the expected number of machines that should have been delivered was 42,000 units but only about 30,000 units was delivered. The explanation given by Smartmatic-TIM, this time, is that the delay is due to the high cost of shipping and traffic during the Christmas season

Due to these delays, some groups have been demanding the COMELEC to penalize Smartmatic-TIM arguing that the same is provided for in the automation contract and is therefore valid.

Nonetheless, Smartmatic was able to deliver all the 82,200 units of PCOS machine on February 27, 2010 which was one-day ahead of the deadline set by COMELEC for its delivery.

The units were kept in a safe warehouse in Cabuyao, Laguna where it will undergo laboratory testing in preparation for its use in less than two and a half months.

Counting Complexity:

The infomercial on automated election showed how easy it is to vote using the automated election system. To summarize, the voter simply has to go to his designated voting precinct. Next, the voter obtains his official ballot, together with a shading marker and a ballot secrecy folder, from the board of election inspectors. Then, the voter must shade the oval next to the name of the candidate he is voting for. During this part of the infomercial, the voter is reminded to completely, never partially or over, shade the oval and to be careful not to over vote. After the voter is done with the shading, he must proceed to the PCOS machine where the official ballot will be inserted in order for the machine to scan and record the same. The voter is again instructed to wait for the small screen on top of the machine to display a message verifying that his ballot has been successfully recorded and the same will slide down inside the opaque plastic ballot box. The last thing that the voter must do is to have the board of election inspectors put indelible ink on his right forefinger. It is that simple and it’s better automated so the infomercial shows as it ends.

Although it seems rather easy to vote in an automated election by watching this infomercial, the problem lies with the what if’s. First, the infomercial, although it made some emphasis on carefully shading the oval, it failed to clarify the effects if, what if, there was partial or worse over shading. With partial shading, there is a chance that the vote will not be counted by the machine. This is because the machine will rely on optical scanning and it may not read an incompletely shaded oval. Hopefully, if this happens, the machine will not immediately slide the ballot inside the ballot box, therefore giving the voter the chance to re-shade. On the other hand, if the voter over shades in the official ballot, either his shading went outside the oval, or that he shaded more oval than the maximum number of ovals per elective post, or both, with no intent to create a marking but simply a result of maybe a medical condition such as poor eyesight or uncontrollable shaking of the hand. What happens then? Will his vote for that elective post alone be void or will his entire ballot be invalidated? If the answer in either is in the affirmative, wouldn’t that constitute disenfranchisement of his vote despite the fact that it was an honest mistake?

Second, the COMELEC sample ballot measures 8in. x 29in. A standard student desk used in public school classrooms, which is commonly the same ones used in voting precincts, will measure approximately fifteen inches at most. With such a small space to place the extremely long official ballot, there could have accidental crimping of the ballots as the voter go from top to bottom while shading his choice. This crimping might result to creases which could be detected by the machine as unnecessary markings which could translate to invalidation of the ballot. Not to mention is the possibility of causing the same creasing as the voter try to protect the secrecy of his ballot using the secrecy folder which ordinarily measures thirteen inches or similar to long folders.

Looking at these scenarios, the question is, will the voter be allowed to ask for a replacement ballot and simply surrender the previous one and have it marked as spoiled? Under Section 14 of the Election Automation Act of 1997, a voter who spoils his/her ballot may be issued another ballot, which should not exceed once, subject to Section 11 of the same act which provides that the number of official ballots to be distributed to each precinct will be equal to the total number of registered voter for that precinct with a provision of additional four (4) ballots per precinct. However, these two provisions were amended under the Poll Automation Law. Section 13 of the Poll Automation Law amended Section 11 of the Election Automation Act of 1997 reducing the number of additional ballots from four (4) to three (3). Section 15 of the Poll Automation Law amended Section 14 of the Election Automation Act of 1997. The amendment made no mention if a voter can be reissued another ballot should he spoil his ballot. Under statutory construction, where a specific section of an old law is amended by the new law, the provision not included or omitted in the amended provision is deemed repealed. By applying this rule, one may conclude that the answer to the question is in the negative. However, the amended provision stated that the COMELEC shall prescribe the manner and procedure of voting. Thus, there still is a possibility that the old intention to allow the replacement of spoiled ballot not exceeding once per voter and a maximum of three for each precinct.

In the two previously mentioned scenarios, the fault is attributable to human error, then how about if it is the PCOS machine which would fail to read or refuse to receive the ballot? The COMELEC-SmartmaticTIM contingency plan provides that if the PCOS machine should malfunction and fail to count the votes in the precinct it is serving. It provides that in a situation where the PCOS machine experience technical difficulty such as it won’t read the ballots despite the absence of any markings that would otherwise invalidate it, then the Board of Election Inspectors are advised to call a technical expert from the Smartmatic to repair the unit. If the PCOS machine cannot be repaired, then another PCOS machine will be given to the precinct. This is the reason why there are excess units delivered as stipulated in the automation contract. However, if there will be no available extra PCOS machine, since there are only more or less 6,000 spare units, then the COMELEC may use the machine from a neighboring precinct. This PCOS machine will be reprogrammed to recognized the different set of ballots. If all else fails, then the COMELEC may decide to do manual polls.

The COMELEC has caused the preparation and printing of manual forms equivalent to 30% of the total registered voters as part of its continuity plan should there be malfunctions with the machines that would necessitate the reversion to manual polls.

Transmission Trouble:

Another issue raised by concerned individuals and groups involves the reliability of the medium for the transmission of vote results from the counting precincts to the canvassing center. There are fears that there might be signal problems on election day which will hamper and affect the transmission of the voting result.

Resolution No. 8809, promulgated by the Commission on Elections on March 30, 2010, covers the general instructions that will govern the consolidation, transmission and canvassing of votes by the municipal, city, provincial and district boards of canvasser.

The primary choice in the transmission of the result from the PCOS machine to the consolidation machines is the wireless broadband or USB modem which is serviced by any of the three biggest telecommunications company, Globe Telecoms, Smart Communications, and Sun Cellular, depending on the signal strength in the area where the counting precinct is located.

However, despite the claims of these telecommunication companies of having strong signal nationwide, in truth, there still remain not a few places where there are signal problems such as low signal or no signal at all. The latter are areas which are referred to as dead spots. This is the reason why the COMELEC is prepared not to depend on this transmission device alone, but as part of its general instructions governing transmission, there are several options laid down in the procedure for canvassing and consolidation.

With respect to the choice of transmission medium, the first option as mentioned is to use a USB modem. There are sims, the number of which shall depend on the location, that will come with the USB modem. If no connection can be established using the USB modem, a broadband global area network or BGAN, a satellite antenna, will be used. If still no connection can be established using the BGAN, an available VSAT or DSL may be used in transmitting the vote results. If electronic transmission of the vote results becomes impossible, then the reception and custody group will do there job.

A reception and custody group or RCG, as expressed under Section 22 of Resolution No. 8809, is a group, constituted by the board of canvassers, who is in charge of the reception and safekeeping of the main memory card and the hardcopies of the election returns. The RCG shall immediately submit to the board of canvassers the envelope containing the main memory card that has been labelled “NOT TRANSMITTED” in order to process the election return.

With a manual transmission of the memory card containing the election return, the same fear over the incidents involving the smuggling into the country of 5,000 signal jammers which allegedly would be used to disrupt the electronic transmission of the election returns or the certificates of canvass may be put to rest.

Power Supply

Electrical power availability has also been an issue in the shift to automated election system. The country has been experiencing rotating brownouts which initially spared the Luzon Island but eventually became a nationwide event with the failing of several power plants one after another with the onset of the El Niño Phenomenon. It was reported that the different power plants cannot produce enough supply of electricity to cover the huge demand of the consuming public.

Due to this current power supply deficiency, some groups have expressed their concern over the possibility of widespread power failure on election day. With the automation system dependent on power supply, the groups’ concern is that a power blackout would disrupt the automated poll.

Despite this more than occasional rotating brownouts, the public should not be too worrisome. The PCOS machine has a battery support that could last for 16 hours. The poll starts at seven o’clock in the morning and ends at three in the afternoon which may be extended if there are still registered voter who have not cast their votes within the thirty meter radius from the polling precinct. According to COMELEC Commissioner Melo, that the precinct level counting of votes will only take up an hour. With the eight hour precinct voting plus the one hour precinct counting, the normal time span will only be nine hours. There will be an excess of seven hour battery life, should there be extension in the voting.

Also, the use of portable power generators, which is common in this country who had experienced worse rotating brownouts in the early 90s, may also be resorted to if the 16 hour battery life of the PCOS machine is not sufficient.

Failure of Election

The foremost fear of the critics of the automation poll is that the scenarios mentioned will inevitably lead to a failure of election. However, the proponents countered that this fear, and not the problems posed, which is more detrimental to automation.

If the aforementioned situations are the only basis for a so called “failure of election”, then there wouldn’t be a failure of election to speak of. At worst, there will only be failure of automation and not a failure of election.

The failure of election can only be declared by the COMELEC on the grounds specified under Section 6 of the Omnibus Election Code. There are three cases when a failure of election may be declared: first, if, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed; or second, if, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place had been suspended before the hour fixed by law for the closing of the voting; or third, if, on account of force majeure, violence, terrorism, fraud, or other analogous causes after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect.

An additional requisite for failure of elections to be declared is that in any of the three cases, the failure or suspension of election would affect the result of election.

In conclusion, the COMELEC has taken the necessary precaution and has a continuity plan in place. Election day is but a month away. The voting public should give this automated election system a chance to prove itself as a worthy substitute to the familiar manual automation. After all, its precedent cannot boast itself as the better system as it had been marred by too many controversies of fraud anyway.


Sources:

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