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Political Tidbits is the prestigious column of Belinda Olivares-Cunanan that ran for 25 continuous years in the op-ed page of the Philippine Daily Inquirer, the newspaper that she helped put up with its multi-awarded founder, the legendary Eugenia Duran-Apostol, in December 1985, just two months before the EDSA Revolution.

Saturday, October 27, 2012

Our IT experts assert: In the financial war between Smartmatic and technology-provider Dominion being fought in a Delaware court, the Philippines is hemmed in. But in the end, our electoral process in 2013 will be put in jeopardy. Congress and the Court should act now.



Cesar Flores of Smartmatic 
The various political parties, including a good number of leftist organizations that are fighting for domination of party-list  representation in the House, are all gearing up for the 2013 midterm elections just over six months away. But there’s a huge problem that unfortunately, Congress has refused to acknowledge.

This is the danger that the election technology that Smartmatic-TIM, the company that sold those 2010 PCOS machines to Comelec for use again in the 2013 elections, would employ this time a “pirated’ technology that’s totally unreliable and even legally unviable.  

This quandary could put the 2013 elections in limbo---or worse, in hell. Citizens should make enough loud noise so that the senators would act on this frightening prospect and conduct an urgent open inquiry.

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Why the prospect of “pirated technology?”  In a recent excellent story by Marc Jayson Cayabyab for GMA News, it was reported that in the 2010 elections Smartmatic used the technology software owned by US-based Dominion Voting Systems. This was made possible by a 2009 license agreement that enabled Smartmatic to be Dominion’s legitimate representative in the Philippines (for some strange reason Smartmatic refused to acknowledge this relationship at that time).

In May of this year, however, said the GMA News story, Dominion CANCELLED this license agreement. A legal battle then ensued in the US court.

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Last Oct. 11, the Automated Elections System Watch (AES)--- a volunteer citizens organization of 40 groups and NGOs  led by Filipino IT experts such as Professors Pablo Manalastas, Bobby Tuazon, Edmundo Casiño and Ma. Corazon Akol, that monitored our automated elections of 2010 and raised questionable aspects before Congress---raised the alarm bells. AES said that last Sept. 11, Smartmatic brought a suit against Dominion before the Delaware (USA) court of chancery for allegedly unilaterally repudiating their license agreement (a breach of contract), and undermining Smartmatic's election projects in Mongolia and Puerto Rico.


Reports said Dominion was unhappy that Smartmatic allegedly refused to pay the higher fees it was charging this time.

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AES asserted that the result of this termination of the technology license by Dominion---and Smartmatic’s subsequent legal complaint--- is that it “denies Smartmatic access to technical support and assistance.” Thus, the latter may not get Dominion’s proprietary source code and other “escrowed materials” that Comelec could use to ENHANCE (read: IMPROVE) the PCOS machines. Comelec has been under the gun from IT experts to make those controversial machines acceptable to the voting public for 2013.

Comelec has been assuring the public that it will not pay for the 82,000 PCOS machines if Smartmatic fails to make those “enhancements.”  But why is it that citizens do not have enough confidence in its assurance?

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Recall that in April this year several petitioners questioned before the Supreme Court the validity of Comelec’s decision of last March 30 to purchase from Smartmatic for P1.8 billion those old 82,000 PCOS machines. The oppositors maintained that the lease contract between Comelec and Smartmatic for the 2010 elections had already expired by then, so that there was need for re-bidding. The oppositors, led by former Vice-President Tito Guingona, maintained the re-bidding process was short-circuited.   

On the other hand, some politicians whose entire line-up inexplicably lost in the 2010 elections attacked what they termed massive fraud committed by syndicates who manipulated some of those PCOS machines, in alleged collusion with some Comelec personnel.

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Last week, the SC ruled that Comelec’s P1.8 billion PCOS purchase is valid---thus clearing the way for their use in 2013.

 But now the MORE SERIOUS issue is, what will Smartmatic put into those PCOS machines, given that Dominion has already CANCELLED its technology license? How will Smartmatic correct the errors of 2010 without the necessary source code from Dominion?

In reaction Smartmatic Asia President Cesar Flores was quoted as saying that his company would continue with the automation despite its business rift with Dominion.

“Smartmatic is fully capable of providing all support to Comelec and all customers, regardless of any rifts with any of its providers,” Flores’ statement read, adding that “For the Philippines, we draw on our extensive experience, and we will incorporate the modifications and enhancements to the election system purchased by Comelec that were requested and completed in 2011.”

In other words, says the company, “it’s all-systems go for the 2013 automated elections.” In fact, it asserts that  “As in 2010, Filipinos can depend on the PCOS machine for transparent elections next year and in the years to come. BUSINESS AS USUAL (emphasis BOC’s).” But is it?

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Comelec Chair Sixto Brillantes
Complicating the problem, as GMA News reports, is that Comelec Chair Sixto Brillantes is confident that automation would push through next year---because he believes that Smartmatic and Dominion would be able to settle their quarrel.  In addition he opined that only “minor enhancements” on the PCOS would be affected by the business rift and that the poll body is doing something to help solve the problem. But what exactly he likes to keep secret. Where Brillantes is drawing confidence defies logic.

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But if the 2010 elections would be the model, as Flores insists, then our 2013 elections could be really doomed to massive fraud and chicanery.  The Center for People Empowerment in Governance (CENPEG) was able to obtain a copy of Smartmatic’s complaint vs. Dominion in court of last September, where the Venezuelan company complained of immediate and “irreparable harm” especially to  its “standing in the marketplace” and incurring of huge financial losses.

But more importantly, according to an AES statement, Smartmatic admitted systems errors of its technology in the compact flash card fiasco during the May 3, 2010 final testing and sealing---which nearly stopped the elections of the week later (that was a most horrible run-up to the 2010 elections---BOC). Smartmatic also blamed Dominion’s software for failing to correctly read and record the paper ballots.

Smartmatic also revealed that Dominion breached the 2009 license agreement by failing to deliver “fully functional technology” for our 2010 elections and failing to place in escrow the required source code, hardware design and manufacturing data.

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Dr. Pablo Manalastas
Dr. Pablo Manalastas of AES and CENPEG Fellow for IT, was quick to conclude---and rightly---that Smartmatic’s statement constitutes its explicit admission of the “FAILURE OF ITS SYSTEM TO FUNCTION FULLY (emphasis BOC's),"  resulting in glaring errors, most of which were documented by Philippine IT groups in 2010.

As this IT programmer guru put it, “Does Dominion’s failure automatically imply Smartmatic’s failure to do the escrow required by the election law (RA 9369)? Do these actions by Smartmatic constitute a criminal intent to cheat, a criminal intent to avoid its contractual obligations with Comelec and the Filipino people?”

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The problem is that as early as June 2010, the IT organizations have been asking the Joint Congressional Oversight Committee to look into the problems with Smartmatic in the 2010 elections---beginning with the latter’s erratic counting of votes with 97% accuracy rating, contrary to its claim of 100% perfect count (with this “slight” error, millions of votes are missed out from counting in an actual election).

As AES’ Bobby Tuazon put it, “What other truths is Smartmatic hiding from Filipino voters?” He stressed that the Philippines is hemmed in by a financial war between Smartmatic and Dominion, BUT IN THE END, OUR ELECTORAL PROCESS IN 2013 WILL BE PUT IN JEOPARDY (emphasis by BOC). 

Our IT experts assert that an alternative option for 2013 is STILL VIABLE.  When will Congress and the SC act?  It’s a matter of utter urgency.



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