foreign observers challenge legitimacy of election

8/9/2019 Foreign Observers Challenge Legitimacy of Election

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GLOBAL FILIPINO NATION

Empowering Filipinos onshore and overseas

Change agent for effective governance

27 May 2010

FOREIGN OBSERVERS CHALLENGE ELECTION LEGITIMACY

1. THE ELECTION RESULTS TRANSMITTED FROM THE PRECINCTS DO NOT HAVE DIGITALSIGNATURES OF THE BOARD OF ELECTION INSPECTORS.

Based on industry standards, the digital signature on the precinct Election Return (ER) is a summary (hashvalue) of the ER encrypted using the BEIs secret key. The digital signature serves two purposes:

a. It identifies the BEI personnel and the precinct number from which the ER came; andb. It ensures that the precinct ER is not modified in any way by dagdag-bawas (immutability of

precinct data).

Because of the importance of digital signatures in maintaining data integrity and security,

REPUBLIC ACT 9369 states in SEC. 19 A. In the election of president, vice-president, senators and party-listsystem; and B. In the election of local officials and members of the House of Representatives:

"Within one hour after the printing of the election returns, the chairman of the board of electioninspectors or any official authorized by the Commission shall, in the presence of watchers andrepresentatives of the accredited citizens' arm, political parties/candidates, if any, electronicallytransmit the precinct results to the respective levels of board of canvassers, to the dominant majorityand minority party, to the accredited citizen's arm, and to the Kapisanan ng mga Brodkaster ngPilipinas (KBP).

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INTERIM

international organization of offshore and onshore Filipinos in 30 countries committed to "Building the Global

Filipino Nation for Good Governance." This report does not necessarily reflect the views of the GFN Convenors.

Questions about this Interim Report may be directed to [email protected].]
mailto:[email protected]:[email protected]


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"The election returns transmitted electronically and digitally signed shall be considered as officialelection results and shall be used as the basis for the canvassing of votes and the proclamation of acandidate."

Also in SEC. 25. "Authentication of Electronically Transmitted Election Results. - The manner ofdetermining the authenticity and due execution of the certificates shall conform with the provisions ofRepublic Act No. 7166 as may be supplement or modified by the provision of this Act, where applicable,by appropriate authentication and certification procedures for electronic signatures as provided inRepublic Act No. 8792 [Electronic Commerce Act] as well as the rules promulgated by the SupremeCourt pursuant thereto."

REPUBLIC ACT 8792, SEC. 5. Defines "e. Electronic Signaturerefers to any distinctive mark, characteristicand/or sound in electronic form, representing the identity of a person and attached to or logically associatedwith the electronic data message or electronic document or any methodology or procedures employed oradopted by a person and executed or adopted by such person with the intention of authenticating orapproving an electronic data message or electronic document."SEC. 8 also stipulates. "Legal Recognition of Electronic Signatures. - An electronicsignature on the electronicdocument shall be equivalent to the signatureof a person on a written document if that signature is provedby showingthat a prescribed procedure, not alterable by the parties interested in theelectronicdocument, ..."

SEC. 9 provides. "Presumption Relating to Electronic Signatures. - In anyproceedings involving an electronicsignature, it shall be presumed that:

a. The electronic signature is the signature of the person to whom it correlates; and

b. The electronic signature was affixed by that person with the intention of signing or approving theelectronic document unless the person relying on the electronically signed electronic documentknows or has notice of defects in or unreliability of the signature or reliance on the electronicsignature is not reasonable under the circumstances.

FIRST ISSUE: Comelec Bid Bulletin No. 10 27 April 2009 Public Bidding / 2010 Elections Automation Project,dated 15 April 2009, states: The digital signature shall be assigned by the winning bidder to all members ofthe BEI and the BOC (whether city, municipal, provincial, district). For the NBOCs, the digital signatures shallbe assigned to all members of the Commission and to the Senate President and the House Speaker. The

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digital signature shall be issued by a certificate authority nominated by the winning bidder and approved bythe Comelec.

There were fears at that time that if Smartmatic gets a copy of the secret keys of the BEIs, it wouldtheoretically have the power to change the ERs. Smartmatic did not pinpoint a trusted third party, Digital

Certificate Authority, up to the time of the SECOND ISSUE.

SECOND ISSUE: Comelec Resolution 8786, dated March 4, 2010, no longer required the use ofdigital signatures. The Resolution stated:

"WHEREAS, there is a need to amend or revise portions of Resolution No. 8739 in order to fine tune theprocess and address procedural gaps;

x x x x x x x x

SEC. 40. Counting of ballots and transmission of results

f) Thereafter, the PCOS shall automatically count the votes and immediately display amessage WOULD YOU LIKE TO DIGITALLY SIGN THE TRANSMISSION FILES WlTH A BEISIGNATURE KEY?, with a YES or 'NO option;

g) Press NO option. The PCOS will display ARE YOU SURE YOU DO NOT WANT TO APPLY ADIGlTAL SIGNATURE? with a YES and NO option;

h) Press YES option.

WHY WOULD COMELEC SUDDENLY REMOVE THIS VERY IMPORTANT FEATURE OF THE SYSTEM?

1. The Bid Bulletin Specifications required Digital Signatures to be available by 11 November 2009to Comelec personnel, from BEIs to the Board of Canvassers to the Operators of the ComelecServer, its back-up and to the Servers of the dominant majority, minority, accredited citizens armand KBP- for lab and field test, mock election test, testing and sealing, and on election day.

2. The Technical Specifications in the same Bid Bulletin required:

" Component 1A- Election Management System (EMS)

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2. The system shall require authorization and authentication of all users, such as, butnot limited to, usernames and passwords, with multiple user access levels. (Forcustomization)"

"Component 1B- Precinct-Count Optical Scan (PCOS)

7. The system shall require authorization and authentication of all operators, such as,but not limited to, usernames and passwords, with multiple user access levels."

"Component 1C- Consolidation/Canvassing System (CCS)

The consolidation/canvassing system (CCS) shall be secure, fast, accurate, reliable andauditable, and able to:

1.12 Allow the BOCs to digitally sign all electronic results and reports before transmission;"

3. Makati Rep. Teodoro Locsin said on 26 May that he was wrong in his position on the absence ofthe digital signatures of the Boards of Election Inspectors on the election returns. Locsin, at thehearing of the House committee on suffrage and electoral reforms, said the digital signatures ofthe precinct count optical scan machines were enough compliance with the law. He had saidearlier that the BEIs should have encoded their own signatures on the electronically transmittedresults. "I admit I was wrong. There is a real reason why a PCOS signature is a practicalequivalent of a digital signature," he said.

RA 9369 AND RA 8792 RECOGNIZED PEOPLE, NOT MACHINES, AS AUTHENTICATORS THROUGHDIGITAL SIGNATURES. COMELEC HAD THE SAME PRESCRIPTION IN ITS BID BULLETIN AND ITSPRONOUNCEMENTS until that issuance of Comelec Resolution 8786.

4. Observers are at a loss as to the valid operational justification to remove the digital signatures ofthe BEIs.

The Comelec was quoted as saying "the move [not using the digital signatures] was aimed atremoving one step in the transmission process to minimize human intervention and protect theresults of the balloting.

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Will three keys to be entered prior to transmitting significantly delay the transmission process,given that the transmission has been observed to take several minutes?

Was the intent to protect the results and provide comforting assurance? Indeed what happenedin minds of objective observers is the REVERSE. No assurance can be made that the transmitted

results are the same as the actual votes.

5. The Philippine Computer Society (PCS) disclosed that Comelec considered the i-button key of theBEI Chairman and the PINs of the two BEI members as sufficient equivalents for a digitalsignature.

The PCS members did not agree that the i-button and PIN features were sufficient to protect theauthenticity, integrity, confidentiality and veracity of the transmission of the ERs. It was theirconsensus that these features were not the security features contemplated by RA 9369.

MAJOR IMPLICATIONS:

1. There was a significant divergence from the law, including non-compliance with the provisions ofthe Bid and the Automation Contract.

2. There is now a dark cloud on the authenticity, integrity, confidentiality, veracity and accuracy ofthe vote counts in the ERs.

3. The process prejudices the entire electoral process. Several voting result irregularities,discrepancies in printouts vs. transmitted results, malfunctioning of PCOS machines, slowdown intransmission, and worse, reports of unauthorized vote shaving and changing for a fee, havecome into light.

2. THE NUMBER OF DISENFRANCHISED VOTERS IS SUFFICIENT TO AFFECT GREATLY THERESULTS OF THE ELECTIONS.

Voters Lists were posted on the walls outside the clustered precincts (with a maximum of 1000 registeredvoters) only on voting day.

Although precinct assignments were mailed to individual voters by barangay captains, most received theirslate in the voting day or not at all. Voters have great difficulty in locating and identifying their clustered

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precincts. Long queues developed with voters waiting several (from one to six) hours before voting. As aresult, many, especially women and the elderly, decided to forego voting.

Comelec's consultant on queue management estimates the number of disenfranchised voters to range from 2million to 8 million.

This number can easily affect the results in the presidential, vice presidential and senatorial raceespecially the close ones.

3. THE AUTOMATED ELECTION SYSTEM (AES) WAS IMPLEMENTED LIVE WITHOUT THEAPPROPRIATE FIELD TESTING, AND LAW-SPECIFIED TESTING IN ACTUAL ELECTIONS.

RA 9369 SEC. 6 states "for the regular national and local election, which shall be held immediately aftereffectivity of this Act (in 2007), the AES shall be used in at least two highly urbanized cities and two provinceseach in Luzon, Visayas and Mindanao ..."

"In succeeding regular national or local elections, the AES shall be implemented nationwide."

Furthermore, the Bid Specifications, Annex E, stated that "There shall be as many field tests as may benecessary until the requirements for the tests have been satisfied provided that the tests shall not go beyondDecember 5, 2009. All systems shall be tested on site, i.e. in selected locations nationwide covering differenttest voting centers, test consolidation sites, and test canvassing sites. The test shall also include livetransmission of precinct results. COMELEC personnel shall operate all systems in the test."

No such tests were conducted by December 5, 2009. In fact, a precinct test using 10 sample ballots wereconducted in selected precincts starting in February 2010. No field tests in an entire municipality, city and

even province were conducted. This is further aggravated by the fact that 4,690 polling centers have no cellphone signal from telecommunication firms affecting about 5 million registered voters.

Worse, on May3, seven days before elections, Comelec and Smartmatic discovered malfunctioning ofCompact Flash cards with erroneous votes for local elections. They hurriedly imported new ones andreconfigured all 76,340 CF cards for use in May 10. This reconfiguration action was not fully tested andcertified, thereby resulting in documented irregularities where precinct transmissions showed 10 votes (usedduring the testing) and other unexplained wrong data in many ERs.

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4. THE SOURCE CODE REVIEW WAS NOT COMPLETED AND INITIAL FINDINGS WERE NOTADDRESSED.

Comelec commissioned SysTest Lab of the USA to review the source code. SysTest Lab, after three months,submitted a report with some 4,000 comments for action by Comelec. There was no official announcementby Comelec whether these SysTest comments were addressed.

Comelec also opened up to political and other interested parties the review of the source codes in February2010. No one agreed to it as only a part of the source code was made available, and one month's time wasgiven. To the parties, it would not be a real source code review but only a walk-through.

The lack of transparency in this source code review, among others, led the Supreme Court to order Comelecto produce the relevant documentation on these items.

The non-transparent action led to suspicions and worries by citizen watchdogs that insufficient testing andchecking would happenleading to the use and non-recognition of a malicious code, the emergence ofirregularities, and possible manipulation of the vote results. Simple mistakes like registered voters reaching153 million in the House server are indicators of such probable errors.

5. NO AUDIT WAS DONE ON THE AES PRIOR TO THE ELECTIONS. THERE WAS ONLY AMANDATED RANDOM MANUAL AUDIT THAT, UP TO THIS WRITING, HAS NOT BEENCOMPLETED.

RA 9369 Sec. 24 Random Manual Audit states "Where the AES is used, there shall be a random manual auditin one precinct per congressional district randomly chosen by the Commission in each province and city. Anydifference between the automated and manual count will result in the determination of root cause and initiate

a manual count for those precincts affected by the computer or procedural error."

A Random Manual Audit (RMA) was conducted for 5 precincts for each congressional district or a total of 1,145of the 76,340 precincts nationwide.

The RMA precincts were raffled 12 noon of election day but the choice of the RMA precincts was made publiconly after the close of voting. As observed in Pampanga, the RMA in one precinct in Telabastagan was startedat 8pm election day and the results were not disclosed to the observers.

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The results of 30 RMA precincts were released and announced as of 15 May 2010. Last 20 May, Comelecannounced results of about 300 RMA precincts were completed with few discrepancies.

PPCRV and Comelec announced some .07% discrepancies in about 400 ERs audited as of 21 May. No targetcompletion was announced.

This should be compared to the Bid Bulletin Specifications "Component 1B- PCOS Machine -

10. The system shall count the voters vote as marked on the ballot with an accuracy rating of atleast 99.995 %."

If in 400 ERs audited, .07% discrepancy is noted, how much more discrepancy can be expected forthe rest of the 76,340 ERs?

6. SEVERAL VOTER AND SECURITY FEATURES WERE DISABLED PRIOR TO THE ELECTIONS.

5.1 RA 9369, SEC. 7. requires "Minimum System Capabilities ... (e) Provision for voter verified paper audittrail;"so the voter can verify whether his votes were the same as those read and counted by the PCOSmachine. The AES disabled this feature. The voter was only notified that his vote was read through theword "CONGRATULATIONS" shown in the PCOS LCD.

5.2 The same section requires "(k) Data retention provision;"

A memory card and Compact Flash Card designed to maintain the copy of the vote data and precinct,candidates data per PCOS.

Comelec was reported to have started destroying the CFC cards 15 May.

5.3 The AES disabled the Ultra Violet scanning capability (to detect fake and unauthorized ballots) of thePCOS when Comelec discovered that the ink used in printing the ballots were not sufficiently dense tobe read by this UV scanner.

Instead, Comelec procured 76,340 UV handheld scanners to take the PCOS UV feature. However,during the elections, the UV lamps were not used.

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CONCLUSION AND RECOMMENDATIONS:

There has been a noticeable improvement in the peace and order aspects of the elections compared to past nationalelections. There was initial satisfaction with the early voting results. BUT later events put to question the

authenticity, integrity, confidentiality, veracity and accuracy of the vote counts in the ERs. The dark cloud rose fromdisabling critical, legally specified security features, particularly relating to the digital signatures. Thus, no one (bothperceived winners and losers) can be sure whether the vote results are true and correct, and reflect the real will ofthe Filipino people.

Accordingly, the Election Observers Team of Global Filipino Nation challenges the legitimacy of theelection results.

To resolve this very critical issue, GFN recommends the following:

1. In the short-term, impound PCOS machines, the memory and CF cards, and perform forensics on these

using the actual ballots.

2. Comelec would promptly comply with Supreme Court directing the Comelec to make public thedocuments requested by Petitioner about Comelec's preparation and compliance with the requirementsof the law.

3. An independent, non-partisan qualified party would conduct a full-blown audit of the Automated System(including recommended improvements to include automated registration, purging of voters lists,precinct mapping, and Internet Voting) as inputs to the Advisory Council. The audit should cover:

a. Compliance with RA9369 and other related legal issuances covering national and local elections;b. Compliance with the Terms of Reference and Project Specifications of the Bid;

c. Reasonableness of Pricing and Expenses involved in the Project vs. Contract, and approvedchanges;d. Evaluation of the Technology used;e. Evaluation of Internal Controls of the System; andf. Evaluation of Performance by Comelec and Smartmatic management and project staff.

4. With the lessons learned in the automation of 2010, the following projects should be pursued intime for the 2013 elections:

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a. As a priority, complete the computerization of the Automated Fingerprint Information System(AFIS), started by Comelec several years ago, to complete and purge the Registered Voters List.

b. Complete the computerization of the Voters Registration Information System (VRIS) and that ofthe Project of Precincts (POP) in order to prevent disenfranchisement, "flying and ghost" voters,and "ghost" precincts.

c. Finalize the amendments and corresponding Implementation Rules and Regulations for RA 9369.

GLOBAL FILIPINO NATION is a non-partisan international organization of offshore and onshore Filipinos in 30countries committed to "Building the Global Filipino Nation for Good Governance." It has been active for more thaneight years in major governance issues such as The Overseas Absentee Voting Law, the Dual Citizenship Law,economic initiatives, and social issues and programs for migrant workers.

GFN 2010 ELECTIONS OBSERVERS TEAM

The GFN Team covered municipalities and cities in Pampanga, Quezon and Iloilo.

1. Victor S. Barrios is an international banker and economist. He has served as Sr. Adviser to initiatives ofmultilateral financial institutions in over a dozen countries in Eastern Europe and Asia. He is a Convenorof Global Filipino Nation.

2. Jun S. Aguilar, an OFW entrepreneur, is an engineer by profession who has served various internationalcompanies in the Middle East for 13 years. He is CEO-President FMW Group Holdings Inc., Chair of theFilipino Migrant Workers Group and Convenor of Global Filipino Nation.

3. Theodore B. M. Aquino, a California Registered Civil Engineer and a Global Filipino Nation Convenor, isa strong advocate for Filipino Dual Citizenship rights and good governance. He has his own consultingengineering practice in California and in several occasions providedpro bono consulting services to theRepublic of the Philippines through the UNDP TOKTEN (Transfer of Knowledge Through ExpatriateNationals) Programme.

4. Elsa A. Bayani served as an RN from U.K. and U.S.; Arkansas State Chair of National Federation ofFilipino American Association; and TV host Fox Network Asian American Focus, Little Rock Arkansas. Anadvocate for children in prison, youth and the elderly, she serves as Chairman of Our Barangay Inc. to

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connect 42,000 barangays to the Internet and a Convenor of Global Filipino Nation.

5. Tim C. Bayani, a registered criminologist, served the Arkansas State Dept. of Correction and Phil.National Police Commission. He was the Dean of Criminology Manila College. He is a member of the FBI-Law Enforcement Executive Dev. Association.

6. Robert Ceralvos company provides wifi products/services to projects in the US, notably Google. He hasbeen in the IT industry for almost thirty-years and founded several start-ups. He has been activelyinvolved with IT organizations and a Global Filipino Nation Convenor. His motto is: Technology to thePeople.

7. Romeo Z. Cayabyab is a Sydney-based audit consultant and university lecturer specializing in treasuryoperations, risk management, systems and operations control. He is also the founder and publisher ofthe emanila.com group of websites including TheFilipinoAustralian.com.

8. Hermenegildo R. Estrella, Jr. is a Management Systems Advisor for public and private consulting

projects. He held senior management positions in IBM Philippines, Ayala Investment and Development,and Citibank. He is currently a Board Member and Officer of My Wellness City and SIETAR Philippines.He served as the IT/Election Specialist/Consultant of the Global Filipino Nation Foreign/ ElectionObservers Group.

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http://emanila.com/http://emanila.com/


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ANNEX 1. INTERIM DETAILED ASSESSMENT

This Interim Assessment of the 2010 national elections can be divided into two areas:

1. Performance of Comelec and its deputized agencies vis-a-vis their roles, and in comparison with their

performances in the 2004 national and 2007 local elections.

2. Performance of Comelec's Automated Voting, Consolidating and Canvassing System (referred to as theAutomated Election System or AES) procured from Smartmatic-TIM compared to the actual live Systemimplementation, provisions of RA9369 governing such automation, System contract between Comelecand Smartmatic-TIM, System Project Management, and the System deliverables.

TABLE I. PERFORMANCE OF COMELEC AND ITS DEPUTIZED AGENCIES

CRITERIA ACTUAL 2010 2004 /2007 2010 ASSESSMENT

1. Comelec1.1 Registration of Voters

Purging of Lists

Regular procedureswith automatedregistration usingbiometrics.

Comelec claims purgingof some 70,000 ofvoters in current voterlist

Regular procedureswith automatedregistration usingbiometrics.

Comelec claims purgingof a similar number ofvoters in that year'svoter list

No significantimprovement vs.2004/2007

1.2 Voter Verification /

Checking of Names in ComelecLists and Precinct Assignments

Voters Lists were

posted on the wallsoutside the clusteredprecincts (severalestablished precinctsinto one clusteredprecinct for a maximumof 1000 registeredvoters) only on votingday.

Voters lists were posted

on the walls outside ofeach establishedprecinct (up to 300voters per precinct)prior to the voting day.

No mailing of precinct

Voters have great

difficulty in locating andidentifying theirclustered precincts.

Long queues developedwith voters waitingseveral hours beforevoting.

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Precinct assignmentswere mailed toindividual voters bybarangay (but mostly

received during votingday only)

Comelec websiteprovides findercapability for precinctassignment per voter.

assignments. The estimated numberof disenfranchisedvoters in the electionmay range from 2million to 8 million,

according to Comelec'sconsultant on queuemanagement.

This number may haveaffected the results inthe presidential, vicepresidential andsenatorial results.

1.3 Voting and Canvassing(please see Table II)1.4 Release of Results (time) 80% of precinct votes

reported by 13 MaySeveral winning localofficials proclaimedstarting 13 May90% reported by 17May9 senators proclaimed17 May.

Voting resultscompleted after morethan a month

Faster results atprecinct andmunicipal/city levelthan 2004/2007

1.5 Accuracy of Results Most of declared

winners follow thegeneral trend of preand post electionsurveys.Contract specified99.99% accuracy.Two days afterelections, severalincidents of potentialfraud and irregularities

2004 national results

questioned withinvestigations endingup with "Hello Garci"investigations in 2005to 2006. (No resolutionyet.)

2007 (12th position)senatorial resultsquestioned and

In suspense following

announcement ofRandom Manual Auditsand resolution of filedcases.

With the assessmentsin Table 2, and awaitinga full blown audit, thiscriterion awaitsresolution.

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were reported,documented andprotests filed (starting17 May)

pending resolution.

2. Department ofEducation2.1 Performance as Board ofElection Inspectors

Performed theirassigned jobs despiteprocedural difficultiesand long voter queuesto serve

Performed theirassigned jobs despiteincidents of violenceand related electoralpressures

BEIs have shown theirbest under pressure

3. Philippine NationalPolice3.1 Maintenance of Peace andOrder

Very few incidents ofreported electoralviolence.

Has a high level ofreported of electoralrelated incidents,especially in Mindanaoin the 2007 elections

More peaceful andorderly than 2004/2007

4. Armed Forces of thePhilippines4.1 Maintenance of Peace andOrder

No reported incidents

4.2 Involvement in the

elections

No reported

involvement in electionfraud.

Claimed involvement in

2004 elections,

Better performance in

2010

TABLE II. PERFORMANCE OF THE COMELEC AES

MAJOR CRITERIA REQUIREMENT COMELECPERFORMANCE

ASSESSMENT

1. Republic Act 9369

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1.1 Sec 3 and 5. IT-capableperson

Trained and certified byDOST; at least onemember of the BEI, andto assist the BOC

In the observedPampanga votingcenters, only one ITperson (no certificationshown) covered one

voting center consistingof several clusteredprecincts

1.2 Sec 6. Use of AES "for the regular nationaland local election,which shall be heldimmediately aftereffectivity of this Act,the AES shall be used inat least two highlyurbanized cities and

two provinces each inLuzon, Visayas andMindanao ..."

"In succeeding regularnational or localelections, the AES shallbe implementednationwide."

There was no use of theAES contracted in July2009 in two urbanizedcities and twoprovinces each inLuzon, Visayas andMindanao. The AESwas IMPLEMENTED LIVE

NATIONWIDE in the2010 elections.

This is dangerous asComelec's noncompliance means anuntested and unauditedsystem will beimplemented LIVE. Maylead to unforeseendifficulties and

erroneous results.

1.3 Sec 7. Minimum SystemCapabilities

(a) Adequate securityagainst unauthorizedaccess

Passwords for the BEIwere provided. Noobserved passwords forthe IT personnel.

Digital signatures wererequired but within twomonths before theelections, these werenot used.

This is leading to aLegal standoff as to theauthenticity, reliabilityand accuracy of thevote results.

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(b) Accuracy inrecording and readingof votes as well as inthe tabulation,consolidation/canvassin

g, electronictransmission, andstorage of results;

(c) Error recovery incase of non-

Use of encryption intransmissionannounced but anincompletely securetransmission scheme is

made available, but notutilized in the elections.

UV reading by PCOSearlier provided butlater was disabledwhen ink density of theballot was foundinadequate. Anexternal, handheld UVlamp was procured to

check on theauthenticity of a ballot.

Tests using 10 sampleballots were made afterthe May 3 erroneousCompact Flash cards(CFC) field tests. Notall tests in 76,340precincts wheresupposedly all CFCwere reconfigured andreplaced, werecompleted andannounced.

Transmission testswere not conducted asstated by ProvincialElection Supervisor,

The UV lamps were notprovided nor used inthe Pampangaprecincts.

There were reports thatstated some ERscontain votes of 10voters, meaning thatthe votes transmittedwere the test votes.

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catastrophic failure ofdevice;

(d) System integritywhich ensures physical

stability andfunctioning of the voterecording and countingprocess ;

(e) Provision for voterverified paper audittrail;

(f) System auditabilitywhich providessupportingdocumentation forverifying thecorrectness of reportedelection results;

Regional ElectionOfficer and his Deputy.

Back up PCOSmachines are used

within a province.

Only a UPS is providedto ensure the PCOS willnot lose power.

Voter only notified inthe PCOS screen that

his vote is read.

The announcedcapability for the voterto verify that his votechoices were recordedby the PCOS wasdisabled. Only theword"CONGRATULATIONS"was shown in the PCOSLCD.

NO VOTE RECEIPT WASPROVIDED FOR.

Only a printed ElectionReturn tape wasprepared after thecounting.

30 copies of the ERwere printed for eachprecinct and distributedto authorized parties.

The results of 30 RMAprecincts were releasedand announced as of 15May 2010.Last 20 May, Comelecannounced results ofabout 300 RMAprecincts were

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(g) An electionmanagement systemfor preparing ballotsand programs for use inthe casting andcounting of votes andto consolidate, reportand display electionresult in the shortest

time possible;

(h) Accessibility toilliterates and disabledvoters;

(i) Vote tabulatingprogram for election,referendum orplebiscite;

(j) Accurate ballotcounters;

(k) Data retentionprovision;

A Random Manual Auditwas conducted for 5precincts for each

congressional district ora total of 1,145 of the76,340 precinctsnationwide.

An ElectionManagement System

module was provided.

No prior tests weremade insteadimplemented LIVEimmediately.

No specific tests weremade.

Election Return tapeswere printed out (seeitem f above)

Tested under item babove.

A memory card andCFC card designed to

completed with fewdiscrepancies.

Comelec was reportedto have starteddestroying the CFCcards 15 May.

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(l) Provide for thesafekeeping, storingand archiving ofphysical or paper

resource used in theelection process;

(m) Utilize or generateofficial ballots as hereindefined;

(n) Provide the voter asystem of verificationto find out whether ornot the machine has

registered his choice;and

(o) Configure accesscontrol for sensitivesystem data andfunction.

"In the procurement ofthis system, theCommission shalldevelop and adopt anevaluation system toascertain that theabove minimum systemcapabilities are met.This evaluation systemshall be developed withthe assistance of anadvisory council."

maintain the copy ofthe vote data andprecinct, candidatesdata per PCOS.

Comelec providedfacilities for storingtheir copies of thepaper tapes, and theused ballots, unusedballots and other paperparaphernalia.

Printed official ballotsat the National PrintingOffice.

Same as item e above.

See item a above.

An evaluation systemwas provided but notannounced norreleased.

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1.4 Sec 8. CommunicationChannels for ElectronicTransmissions

all electronictransmissions by andamong the EAS and itsrelated components

shall utilize securecommunicationchannels ... to ensureauthentication andintegrity oftransmission."

4,690 polling centershave no cell phonesignal fromtelecommunication

firms affecting about 5million registeredvoters.

5,600 BroadbandGlobal Area Network(BGAN) equipment and680 Very SmallAperture Terminalshave been assigned tothese areas.

See item 1.3 b above.

No specificauthentication andintegrity check werereleased andannounced regardingthe public telecomfacilities and facilities

utilized.

Only 40,000 modemswere contracted toallow transmissions.

No announced resultsof testing thesefacilities. Slowdown intransmission wasnoticed three days afterelections.

As observed inPampanga, there wasonly one modem usedby several precincts ina voting center, thusdelaying transmission.Transmission inobserved precincts inPampanga took about30 minutes per ER.

1.5 Sec 9. TechnicalEvaluation Committee

The Committee shallcertify, through anestablishedinternational

Comelec commissionedSysTest Lab of the USAto review the sourcecode.

SysTest Lab submitteda report with some4,000 comments foraction by Comelec. No

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certification entity tobe chosen by theCommission from therecommendations ofthe Advisory Council,

not later than threemonths before the dateof the electoralexercises, categoricallystating that the AES,including its hardwareand softwarecomponents, isoperating properly,securely, andaccurately, in

accordance with theprovisions of this Actbased, among others,on the followingdocumented results:

1. The successfulconduct of a fieldtesting processfollowed by a mockelection event in one ormorecities/municipalities;

Comelec also openedup to political and otherinterested parties thereview of the source

codes.

The source code copywas put in escrow atthe Central Bank.

Bid Specifications"Annex E" stated that"There shall be asmany field tests as maybe necessary until therequirements for thetests have beensatisfied provided thatthe tests shall not gobeyond December 5,2009. All systems shallbe tested on site, i.e. inselected locationsnationwide covering

official announcementby Comelec whetherthese SysTestcomments wereaddressed.

The lack oftransparency by theComelec led theSupreme Court to orderComelec to produce therelevant documentationon these items.

This action of Comelecled to suspicions and

worries by citizenwatchdogs thatinsufficient testing andchecking arehappening, that maylead to irregularitiesand possiblymanipulation of thevote results.

Tests were conductedonly at precinct level.

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provisioning, andoperationalization of acontinuity plan tocover risks to the AESat all points in the

process such that afailure of elections,whether at voting,counting orconsolidation, may beavoided.

"If the Commissiondecides to proceed withthe use of the AESwithout the

Committee'scertification, it mustsubmit its reason inwriting, to theOversight Committee ,no less than thirty (30)days prior to theelectoral exercisewhere the AES will beused.

No announcement.

1.6 Sec 10. Procurement ofEquipment and Materials

With respect to theMay 10, 2010 electionand succeedingelectoral exercises, thesystem procured musthave demonstratedcapability and beensuccessfully used in aprior electoral exercisehere or board.

The PCOS machine wasnot used in the ARMMand 2007 elections. InARMM, two votingmachines, the DRE andCCOS were used by twodifferent contractors.

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Participation in the2007 pilot exerciseshall not be conclusiveof the system's fitness.

1.7 Sec 11. Continuity Plan Activation of such

continuity andcontingency measuresshall be undertaken inthe presence ofrepresentatives ofpolitical parties andcitizen's arm of theCommission who shallbe notified by theelection officer of suchactivation.

"All political parties andparty-lists shall befurnished copies of saidcontinuity plan at theirofficial addresses assubmitted to theCommission.

The list shall bepublished in at leasttwo newspaper ofnational of circulationand shall be posted atthe website of theCommission at leastfifteen (15) days priorto the electoral activityconcerned."

Not done. Although a

Comelec Resolutionwas issued to coverthese.

Not know whetherthese were furnished.

No copy published.

1.8 Sec 12. "Examination andTesting of Equipment or Device

The Commission shallallow the political

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of the AES and Opening of theSource Code for Review"

parties and candidatesor theirrepresentatives,citizens' arm or theirrepresentatives to

examine and test."The equipment ordevice to be used in thevoting and counting onthe day of the electoralexercise, before votingstart. Test ballots andtest forms shall beprovided by theCommission."Immediately after the

examination andtesting of theequipment or device,parties and candidatesor theirrepresentatives,citizen's arms or theirrepresentatives, maysubmit a writtencomment to theelection officer who

shall immediatelytransmit it to theCommission forappropriate action."The election officershall keep minutes ofthe testing, a copy ofwhich shall besubmitted to the

No test by the parties

were made prior to thevoting on election day.The only test made wasafter thereconfiguration of theCFCs using 10 sampleballots.

No such minutes weremade.

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Commission togetherwith the minute ofvoting.""Once an AEStechnology is selected

for implementation, theCommission shallpromptly make thesource code of thattechnology availableand open to anyinterested politicalparty or groups whichmay conduct their ownreview thereof."

1.9 Sec 13. Official Ballot The Commission shall

prescribe the format ofthe electronic displayand/or the size andform of the officialballot, which shallcontain the titles of theposition to be filledand/or the propositionto be voted upon in aninitiative, referendumor plebiscite.

Comelec first made the

list of candidates on avertical list format butlater shifted to ahorizontal list perposition.

1.10 Sec 17. Notice ofDesignation of CountingCenters

The election officershall post prominentlyin his/her office, in thebulletin boards at thecity/municipal hall andin three otherconspicuous places inthe city/municipality,the notice on the

No such lists wereposted in thecity/municipal halls, norprovided the politicalparties.

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designated countingcenter(s) for at leastthree weeks prior toelection day. The noticeshall specify the

precincts covered byeach counting centerand the number ofregistered voters ineach of said precincts .The election officershall also furnish a copyof the notice to theheadquarters or officialaddress of the politicalparties or independent

candidates within thesame period. Theelection officer shallpost in the Commissionwebsite concerned thesaid notice and publishthe notice in the localnewspaper. Where thepolling place or votingcenter is also thedesignated counting

center, suchinformation shall becontained in the notice.

Such lists were not alsoposted in the Comelec

website nor publishedin the localnewspapers.

1.11 Sec 18 and 19 Electionreturns

The Commission shallprescribe the mannerand procedure ofcounting the votesunder the automatedsystem: Provided, that

Comelec providedthese in the BEIGeneral Instructions;and printed 30 copiesof the ERs.

Some protestors haveshown ERs with"Citibank Mastercard"marks and had priordates to elections, andseveral post dates

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apart from theelectronically storedresult, thirty (30) copiesof the election returnare printed."

marked.

A. Distribution of ER copies (as above) (as above)B. Electronic Transmission "Within one hour after

the printing of theelection returns, thechairman of the boardof election inspectors orany official authorizedby the Commissionshall, in the presence ofwatchers andrepresentatives of the

accredited citizens'arm, politicalparties/candidates, ifany, electronicallytransmit the precinctresults to therespective levels ofboard of canvassers, tothe dominant majorityand minority party, tothe accredited citizen's

arm, and to theKapisanan ng mgaBrodkaster ng Pilipinas(KBP)."The election results atthe city/municipalitycanvassing centersshall be transmitted inthe same manner by

The BEI, in theobserved votingcenters of Pampanga,transmitted the voteresults to the Comelecserver, the PPCRV andKBP.

The canvassed electionresults weretransmitted to theComelec server.

This transmission stepof precinct to Comelec

Server was notprovided for by RA9369. The problemwould be that anyone incontrol of the ComelecServer would alreadyknow the trend of thevoting prior to theprecinct results going

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the election officer orany official authorizedby the commission tothe district or provincialcanvassing centers.

"The election returnstransmittedelectronically anddigitally signed shall beconsidered as officialelection results andshall be used as thebasis for thecanvassing of votes

and the proclamation ofa candidate."

to the municipal/city asmandated.

This is now the legalsubject in the National

Canvassing as digitalsignatures as requiredby RA 9369 were notpurposely utilized uponorders of the Comelec.

1.12 Sec. 20 Canvassing byProvincial, City, District andMunicipal Boards ofCanvassers

"Within one hour afterthe canvassing, theChairman of the districtor provincial Board ofCanvassers or the cityboard of canvassers ofthose cities whichcomprise one or morelegislative districts shall

electronically transmitthe certificate ofcanvass to thecommission sitting asthe national board ofcanvassers for senatorsand party-listrepresentatives and tothe Congress as the

The canvassed electionresults weretransmitted first to theComelec server, then tothe various canvassingcenters.

In the first hours ofcanvassing in the Cityof San Fernando, whatwas shown in theprojected canvass, afterthe election, were onlythe number of precinctsreporting without voteresults.

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National Board ofCanvassers for thepresident and vicepresident, directed tothe President of the

Senate."The Commission shalladopt adequate andeffective measures topreserve the integrityof the certificates ofcanvass transmittedelectronically and theresults in the storagedevices at the variouslevels of the boards of

canvassers."The certificates ofcanvass transmittedelectronically anddigitally signed shall beconsidered as officialelection results andshall be used as thebasis for theproclamation of awinning candidate."

No such measures werereleased norannounced.

Comelec Resolution8786 instructed theBEIs not to indicatetheir digital signaturesfor the transmission.

See 1.11 B aboveassessment.

1.13 Sec. 24 Random ManualAudit

Where the AES is used,there shall be a randommanual audit in oneprecinct percongressional districtrandomly chosen bythe Commission in eachprovince and city. Anydifference between the

Same as item 1.3 fabove.

The RMA precincts wereraffled 12 noon ofelection day. Asobserved in Pampanga,the RMA in one precinctin Telabastagan was

Same as item 1.3 fabove.

PPCRV and Comelecannounced some .07%discrepancies in about400 ERs audited as of21 May. No targetcompletion was

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automated and manualcount will result in thedetermination of rootcause and initiate amanual count for those

precincts affected bythe computer orprocedural error."

started at 8pm electionday.

announced.

1.14 Sec. 26 Stakeholdereducation and training

The Commission shall,not later than sixmonths before theactual automatedelection exercise,undertake awidespread stakeholdereducation and training

program, throughnewspaper of generalcirculation, radio,television and othermedia forms, as well asthrough seminars,symposia, fora andother nontraditionalmeans, to educate thepublic and fully informthe electorate about

the AES and inculcatevalues on honest,peaceful, orderly andinformed elections.

Comelec initiated thestakeholder educationand training programtogether withconcerned peoples'groups andorganizations throughprint, radio and TV

media.

1.15 Sec. 30 Rules andRegulations

The Commission shallpromulgate rules andregulation for theimplementation andenforcement of this Act.

No implementing rulesand regulations wereprovided for theimplementation andenforcement of this Act.

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2. Contract BetweenComelec and Smartmatic-TIM2.1 Compliance to RA9369

provisions

Contract indicated

provisions andattachments thatcomply with RA 9369,the Terms of Referenceand ProjectSpecifications of theBid.

As stated in the various

items in this column,there were manyrequired specificationsthat were disregarded,disabled and notprovided for in theactual implementation.

2.2 Reasonableness of Pricing Total SmartmaticContract is P7,191.4million

10%: ProjectInitialization, Set upProject ManagementTeam and ProjectSystems including allSW licenses andfirmware- P719million

5%: Delivery ofDevelopment Set (20PCOS units)- P359million

5%: Report onTransmission and

Comelec agreed to allthese pricingprovisions.

Although this pricing isbelow the P11,230million budget, thereare certain items that

are way above industryprice levels.

This will be difficult tojustify considering it isonly initialization andset-up, and consideringthe main software isonly P42 million.

The cost of 20 PCOS

units is about P1.0million. The balance ofP358 million would bedifficult to justify.

The actual services andequipment fortransmission is onlyP199.9 million, logistics

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Logistics- P359 million

5%: Delivery ofFunctional System andSoftware- P359 million

Project Management-P99.9 million

82,200 PCOS machines(lease) P3,346million

Total software P42million

ElectronicTransmission P199.9 m

Logistics P916million

is P916 m, so it wouldagain be difficult tojustify such as report.

The Project is for a

year, and certainly thisamount is extravagantas no such Project teamwould justify such anamount for theirservices.

One PCOS is leased forP45,419, which isalmost the purchaseprice of one available in

the market, furthershould be lower as abig volume is ordered.

2.3 Compliance to contractprovisions

See items 3 and 4below.



3. Project Management3.1 Project Manager Requirement for the

Project Manager:

Minimum fifteen (15)

No Project Manager ofSmartmatic has beenidentified, shown nor

Questions arising fromthe IT community havebeen raised whether

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years relevant ITexperience;

At least ten (10)years experience inmanaging large-scale

multi-site ITdevelopment andimplementationprojects involvingrelational databasesand wide areanetworks;

With actualexperience inassisting in the bidprocesses of any

government agencyfollowing RA 9184 Philippinegovernmentprocurement rules,regulations andprocesses

quoted during theentire election period,up to the present.

the Smartmatic andComelec ProjectManagers are reallyqualified andexperienced to perform

the required work, asshown by project delaysand non-compliance tokey and critical aspectsof the automation.

3.2 Completion of plannedactivities

A time schedule wasposted in the Comelecwebsite.

There had been delaysin the deliveries of thePCOS machines andcompletion of activities.

Light penalties werecharged to Smartmatic.

These delays led toinsufficient testing, tonote particularly theone that led to theMonday May 3 episodethat rushed the FinalTesting and Sealing ofthe PCOS machines andreconfigured CF cards.

Such delays are nowbeing considered as

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critical to the resolutionof protests regardingirregularities found outin the voting results.

4. Deliverables

4.1 Compliance to quality ofproject specifications

Several certificationswere required andspecified.

Only the certification bySysTest was announcedbut not published.

Lack of transparency byComelec andSmartmatic on theserequirements puts todoubt the test qualityand implementationresults of the wholesystem.

4.2 Adherence to timetables See item 3.2 above See item 3.2 above See item 3.2 aboveCanvass and proclamation

of winnersAs provided for in theProject Timetable:

Finish by 05.13.10

Canvass about 90% by17 May

Proclamation of 9 of 12senators made 17 May.

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foreign observers challenge legitimacy of election

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