The Daily Tribune
An ominous crucible was unveiled yesterday by Commission on Elections (Comelec) Chairman Sixto Brillantes Jr., raising the huge possibility of a reversion to a manual vote in the May elections on the first day of the national campaign period.
Brillantes admitted that the certification for the vital source code for the precinct count optical scan (PCOS) machines cannot be released in time as mandated by the Automated Elections law as a result of a legal brawl in the United States between PCOS supplier Smartmatic-Total Information Management and its software partner Dominion Voting Systems.
Under the Automated Election System law, the Comelec is required to submit the source code for review 90 days before the elections or by Wednesday, Feb. 13.
In an interview, Brillantes said plans are afoot in the event Comelec is forced to conduct manual elections.
Brillantes said,”we are reserving an order for the printing of new election returns and the ballots presently being printed can also be used in manual elections.”
Senators, however, said the Automated Elections Law does not provide for a return to manual voting.
The Supreme Court, meanwhile, did not issue an order to stop the Comelec from imposing its new airtime limits on political advertisements as sought by major television networks.
The high court, in its regular en banc session did not hand down a temporary restraining order (TRO) based on a petition filed by giant networks GMA 7 and TV5 against the new airtime limits imposed by the poll body. The high court, instead, asked the Comelec to comment on the networks’ application for TRO and the merits of the petitions.
The televisions firms have petitioned the Supreme Court (SC) to stop the Comelec from limiting television and radio airtime for candidates running in next May’s elections.
Brillantes said that only the Joint Congressional Oversight Committee (JCOC) can exempt the poll body from the requirement of the law. Most members of JCOC however are running for reelection and are busy campaigning making it difficult to muster a quorum.
Brillantes said that the source code has already been reviewed by Systest Labs Inc (SLI), an international certification agency commissioned by Comelec to conduct the source code review to determine if the software conforms with automated election system requirement, as spelled under RA-9369 or the Automated Elections law.
SLI is now in possession of the source code but cannot release it to Comelec unless Dominion will allow it. Dominion owns the precinct count optical scan (PCOS) technology licensed to Smartmatic. In 2012 it terminated its licensing contract with Smartmatic causing the predicament Comelec now finds itself in.
Brillantes said the legal tiff is a collection case involving $10 million which Dominion is claiming against Smartmatic. Dominion wants its money before it will release the source code.
“I talked to Dominion and suggested that, since Smartmatic still has a receivables with us amounting to about P400 million for the contracts we awarded them, we (Comelec) will place the $10 million in escrow until the case in Delaware is settled so that whoever wins the case can claim it- that way Dominion can be assured that the money is there and they can now release the source code to us. They said they will study our proposal”, Brillantes said.
While at that, Brillantes suggested the use of binaries as a contingency measure in place of the the withheld source code just so the automated elections will push through as scheduled.
Source codes are human readable instructions or software, while binaries are machine readable instructions.
“We will need to justify before the JCOC that this binary is as good as the source code, there is no difference between them actually”, Brillantes said.
“The other option is for the independent Technical Evaluation Committee (TEC) to come up with a favorable certification , saying that even without the source code, the mock elections and the field testing were okay so everything is fine-we expect the TEC certification early tonight (Tuesday), Brillantes added.
The TEC is an independent body established under the Section 11of Republic Act 9369 tasked with the primary duty of “certifying three months before elections that the Automatic Election System, together with its hardware and software components, is operating properly, securely and accurately’”.
It is composed of a representative each from the Department of Science and Technology, Commission on Information and Communications Technology and the Comelec.
Asked if Comelec will not violate the law that mandates the use of source code, Brillantes replied, “why, has anybody seen the source code used in 2010? Has anybody questioned the results? Without anybody seeing the source code we conducted the 2010 elections. So what is the issue about the source code?”
“Everything is okay besides the source code. The deadline is tomorrow (Wednesday) if TEC says it okay, we will proceed even without the source code”, Brillantes said.
In separate petitions, GMA Network and TV5 asked the high court to issue a temporary restraining order and or writ of preliminary injunction against Comelec Resolution Nos. 9615 and 9631,on the matter.
“The aggregate airtime limits imposed by the Comelec in the new rules are so restrictive that they amount to a State-sponsored suppression of the right of the people to know their candidates, and the right of the candidates to bring across their qualifications and platform of government to the people, which are integral to the right of suffrage under Article V, Section 1 of the Constitution,” GMA network said in its petition.
“The consequent damage in the event that the new rules are not immediately enjoined is likewise clear, widespread, and irreparable,” it added, owing to the “the need of the voting public to be effectively and adequately informed.”
Lawyers representing GMA Network explained that an appeal through a clarification before the poll body had sought for the recall and modification of the resolutions, as well as the re-application of the “per station airtime limits observed during past elections.”
It added that since the resolutions would impair access to media, they would therefore contradict and defeat the purpose of the Fair Elections Act, and would even prejudice against lesser known candidates who will be deprived of the most effective means of campaigning on a national level.
Through its petition, the network also said the resolutions would infringe the constitutionally protected freedom of speech, of the press, and of expression.
“There is no legitimate and substantial public or governmental interest, deserving of the subservience of the right to free speech and expression that is being advanced by the new rules,” it said.
“The hearing conducted by the Comelec on Jan. 31, 2013 cannot be deemed as compliance with the requirement of public consultation or even a recognition of the affected parties’ right to due process, given that the hearing was conducted only after the issuance of the New Rules on Jan. 15, 2013, and only after GMA and the Kapisanan ng mga Brodkaster ng Pilipinas send their respective letters assailing the constitutionality, legality, and practicality of the New Rules,” it said.
TV5 argued the two resolutions are “replete with constitutional infirmities and will negatively impact its ability to freely deliver vital news and information to the public, especially, during such a crucial time of elections.”
“While TV5 lauds the Comelec on its noble objective in coming out with rules to execute its mandate, the network only wants to ensure that any such regulation is exercised within the bounds of the Constitution and never in violation of the fundamental rights,” it said.
TV5 questioned the new rules, which mandated the need for television stations to seek for a “prior notice to the Comelec” for their “newscasts, interviews and or guestings of candidates” for purposes of monitoring.
The station said such requirement was “unconstitutional because it constitutes prior restraint on the freedom of speech, expression and the press.”
It said the aggregation of airtime limits for political ads on TV and radio “departed from the previous rule of counting the airtime minutes on a per station basis.”
“This provision constitutes class legislation as it tends to disfavor local or regional media outlets who have limited coverage capabilities,” TV5 said.
It said the resolutions were also vague as they do not provide for “a definitive manner in which aggregation shall be made thus making it difficult or impossible for media outlets to comply while subjecting them to possible criminal liability and loss of franchise permits.”
Benjamin B. Pulta