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UNITED NATIONS HUMAN RIGHTS COMMITTEE Sent by registered mail: Petitions Team Office of the High Commissioner for

Human Rights United Nations Office at Geneva 1211 Geneva 10, Switzerland Sent by fax: + 41 22 9179022 (particularly for urgent matters) Sent by email: petitions@ohchr.org COMMUNICATION UNDER THE OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS April 2013

I. INFORMATION ON COMMUNICATION 1) Name: Nationality: Date of birth: 2) Name: Nationality: Date of birth: 3) Name: Nationality: Date of birth:

THE

AUTHORS

OF

THE

H. Harry L. ROQUE, Jr. Filipino 21 October 1965 Joel R. BUTUYAN Filipino 23 June 1965 Gilbert T. ANDRES Filipino 03 November 1975
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First Name:

Harry

First Name:

Joel

First Name:

Gilbert

4) Name: Nationality: Date of birth: 5) Name: Nationality: Date of birth: 6) Name: Nationality: Date of birth: 7) Name: Nationality: Date of birth:

Romel R. BAGARES Filipino 08 April 1974

First Name:

Romel

Hon. Teofisto GUINGONA, Jr. First Name: Teofisto Filipino 04 July 1928 Pablo MANALASTAS Filipino 15 August 1944 Augusto LAGMAN Filipino 19 November 1939 First Name: Pablo

First Name: Augusto

8) Name: Rene B. AZURIN Nationality: Filipino Date of birth: 2 February 1947 9) Name: Nationality: Date of birth: 10) Name: Nationality: Date of birth:

First Name: Rene

Maria Corazon AKOL First Name: Maria Corazon Filipino 10 April 1949 Nelson J. CELIS Filipino 15 November 1959 First Name: Nelson

11) Name: Felix MUGA II Nationality: Filipino Date of birth: 23 February 1959

First Name: Felix

12) Name: Melchor Gruela MAGDAMO First Name: Melchor Gruela Nationality: Filipino Date of birth: 26 September 1965 13) Name: Nationality:

Gregorio T. FABROS Filipino


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First Name: Gregorio

Date of birth: 14) Name: Nationality: Date of birth: 15) Name: Nationality: Date of birth: 16) Name: Nationality: Date of birth: 17) Name: Nationality: Date of birth: 18) Name: Nationality: Date of birth: 19) Name: Nationality: Date of birth: 20) Name: Nationality: Date of birth: 21) Name: Nationality: Date of birth: 22)

29 April 1940 Bettina K. LEGARDA Filipino 22 August 1946 Annaleah ESCRESA Filipino 20 April 1976 Fr. Jose DIZON Filipino 29 September 1948 Rick BAHAGUE, Jr. Filipino 5 July 1981 Evita L. JIMENEZ Filipino 9 May 1954 First Name: Bettina

First Name: Annaleah

First Name: Jose

First Name: Rick .

First Name: Evita

Ernesto DEL ROSARIO Filipino 15 August 1944 Temario C. RIVERA Filipino 20 February 1947 Rhodora CLEMENTE Filipino 5 October 1953 Henry KHAN
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First Name: Ernesto

First Name: Temario

First Name: Rhodora

Name:

First Name: Henry

Nationality: Date of birth: 23) Name: Broderick Nationality: Date of birth: 24) Name: Nationality: Date of birth: 25) Name: Nationality: Date of birth: 26) Name: John Nationality: Date of birth: 27) Name: Nationality: Date of birth: 28) Name: Nationality: Date of birth:

Filipino 24 February 1952 Bishop Broderick S. PABILLO First Name: Filipino 11 March 1955 Fr. Rex R. B. REYES Filipino 11 February 1959 Conrado DAYRIT Filipino 1 June 1952 First Name: Rex

First Name: Conrado

Sr. Mary John MANANZAN Filipino 6 November 1937 Joey PENGSON Filipino 15 April 1956

First Name: Mary

First Name: Joey

Bishop Sotero K. TOQUERO Filipino 31 May 1942

First Name: Sotero

29) Name: Nationality: Date of birth: 30) Name: Nationality: Date of birth:

Francisco ALCUAZ Filipino 11 August 1942 J.M. Terry L. RIDON Filipino 14 January 1986
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First Name: Francisco

First Name: J.M. Terry

31) Name: Nationality: Date of birth: 32) Name: Nationality: Date of birth: 33) Name: Nationality: Date of birth:

Martin DINO Filipino 25 July 1957 Benjie VALBUENA Filipino 16 April 1953 Jeric R. ABASA Filipino 22 February 1979

First Name: Martin

First Name: Benjie

First Name: Jeric

Address for correspondence on this Communication: Center for International Law, 1904 Antel Corporate Center, 121 Valero Street, Salcedo Village, 1227 Makati City, Philippines Submitting the communication on the Authors behalf: HARRY L.ROQUE, JR., Esq. Counsel of record GILBERT T. ANDRES, Esq Co-Counsel of record

II. STATE CONCERNED/ARTICLES VIOLATED The REPUBLIC OF THE PHILIPPINES is a party to the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). The Republic of the Philippines has violated Article 25 of the ICCPR:
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Article 25 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country. (Emphasis and underscoring supplied) III. EXHAUSTION OF NON-APPLICATION TO PROCEDURES DOMESTIC REMEDIES/ OTHER INTERNATIONAL

1) The authors argue that exhaustion of domestic remedies has been satisfied on account of three (3) separate cases filed by some of the Authors before the Philippine Supreme Court--- the highest judicial body in the Philippines--- which were all decided with finality.

A) First Case: Roque, et al. v. COMELEC (Philippine Supreme Court G.R. No. 188456) 2) On 09 July 2009, herein Authors H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. BAGARES, GILBERT T. ANDRES, and FRANCISCO A. ALCUAZ,1 who are members of the civil society group Concerned Citizens Movement, and five (5) other persons2--- filed before the Philippine Supreme Court a Petition for

Hereinafter authors Roque, et al. ALLAN JONES F. LARDIZABAL, IMMACULADA D. GARCIA, ERLINDA T. MERCADO, MA. AZUCENA P. MACEDA, and ALVIN A. PETERS
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Certiorari, Prohibition and Mandamus, versus the Philippine Commission on Elections (COMELEC), the Commission on Elections-Special Bids and Awards Committee (COMELEC-SBAC), the Department of Budget and Management, Smartmatic, and TIM. Their case was docketed as G.R. No. 188456, and was entitled Roque, Jr. et al. vs. Comelec, et al.3 3) The substance of their Supreme Court petition was to enjoin the signing and/or the implementation of the contract for the first ever nationwide automation of a Philippine election. This automated election was to be conducted during the 10 May 2010 national and local elections. Authors Roque, et al. argued that the automation contract violated Philippine laws, and jurisprudence. They prayed in their Supreme Court petition that: PRAYER WHEREFORE, Petitioners respectfully pray that: 1. Pending the resolution of this Petition, a Temporary Restraining Order and/or Writ of Preliminary Prohibitory Injunction be IMMEDIATELY ISSUED, prohibiting Respondents COMELEC, COMELEC-SBAC, TIM and Smartmatic from signing and/or implementing the contract for the 2010 Elections Automation Project, and the Respondent Secretary of the Department of Budget and Management from releasing public funds for its implementation; 2. Moreover, on account of the primordial importance of the principles of transparency and accountability to the resolution of the instant controversy, a writ of mandamus be immediately issued directing all the Respondents to disclose to Petitioners and to this Honorable Court the full terms and conditions

Please see Roque, et al. v. COMELEC, et al., Philippine Supreme Court case G.R. No. 188456, September 10, 2009. The Philippine Supreme Court Decision on this case can be accessed online at http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/188456.htm.
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of the relevant agreements between and among themselves, including the agreement between Respondent Smartmatic and Dominion and Jarltech, respectively, and Respondent TIM and ToGo. 3. Upon due hearing, the instant Petition be GRANTED declaring the award by Respondent Comelec of the 2010 Elections Automation Project to the joint venture between Respondents Smartmatic and TIM to be an exercise of grave abuse of discretion amounting to an excess or lack of jurisdiction, it being in violation of both statute and jurisprudence, and permanently prohibiting: (a) Respondents COMELEC, COMELEC-SBAC, TIM and Smartmatic from signing and/or implementing the contract for the 2010 Elections Automation Project. Other relief that are just and equitable under the premises are likewise prayed for. Makati City for Manila. June 09, 2009 4) On 10 September 2009, the Philippine Supreme Court promulgated its Decision in Roque, Jr. et al. vs. Comelec, et al., docketed as G.R. No. 188456, denying the petition of authors Roque, et al.4 (a copy of the 10 September 2009 Supreme Court Decision in Roque, et al., v. COMELEC, et al. is herein attached as ANNEX A). 5) On 28 September 2009, Authors Roque, et al. filed a Motion for Reconsideration to the 10 September 2009 Decision of the Supreme Court in G.R. No. 188456.5 6) On 10 February 2010, the Philippine Supreme Court issued a Resolution denying Authors Roque, et al.s Motion for

Please see Roque, et al. v. COMELEC, et al., Philippine Supreme Court case G.R. No. 188456, September 10, 2009. The Philippine Supreme Court Decision on this case can be accessed online at http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/188456.htm. 5 Please see Roque, et al. v. COMELEC, et al., Philippine Supreme Court case G.R. No. 188456, September 10, 2009. The Philippine Supreme Court Decision on this case can be accessed online at http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/188456.htm.
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Reconsideration to the 10 September 2009 Decision in Roque, et al. v. COMELEC, et al.6 (A copy of the 10 February 2010 Supreme Court Resolution in Roque, et al. v. COMELEC, et al. is herein attached as ANNEX B). B) Second Case: CenPEG v. COMELEC (Philippine Supreme Court G.R. No. 189546) 7) On 5 October 2009, the Center for People Empowerment in Governance (CenPEG)---a non-governmental organization-- filed before the Philippine Supreme Court a Petition for Mandamus against COMELEC, seeking to compel COMELEC to immediately make the source codes to be used in the May 2010 automated Philippine elections available to CenPEG and other interested parties.7 CenPEGs petition was docketed as G.R. No. 189546 and entitled CenPEG v. COMELEC. 8) On 21 June 2010, CenPEG filed a manifestation and omnibus motion before the Supreme Court, and reiterated its prayer for the issuance of a writ of mandamus in their case despite the fact that the May 2010 Philippine elections for which the subject source code was to be used had already been held. CenPEG claimed that the source code remained important and relevant not only for compliance with the law, and the purpose thereof, but especially in the backdrop of numerous admissions of errors and claims of fraud.8 9) On 21 September 2010or four (4) months after the May 2010 automated Philippine elections, the Philippine Supreme Court issued a Resolution in CenPEG v. COMELEC,9 directing the COMELEC to make the source codes, for the AES technologies selected, immediately available to CenPEG and all other interested

The 10 February 2012 Resolution of the Philippine Supreme Court in Roque, et al. v. COMELEC, et al., can be accessed online at http://sc.judiciary.gov.ph/jurisprudence/2010/february2010/188456.htm. 7 Id. 8 Please see CENPEG v. COMELEC, Philippine Supreme Court case G.R. No. 189546, September 21, 2010. 9 G.R. No. 189546, Sept. 21, 2010.
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political parties or groups for independent review. As held by the Supreme Court in its 21 September 2010 Resolution: The pertinent portion of Section 12 of R.A. 9369 is clear in that "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." The COMELEC has offered no reason not to comply with this requirement of the law. Indeed, its only excuse for not disclosing the source code was that it was not yet available when CenPEG asked for it and, subsequently, that the review had to be done, apparently for security reason, "under a controlled environment." The elections had passed and that reason is already stale. WHEREFORE, the Court GRANTS the petition for mandamus and DIRECTS the COMELEC to make the source codes for the AES technologies it selected for implementation pursuant to R.A. 9369 immediately available to CenPEG and all other interested political parties or groups for independent review. SO ORDERED.10 (A copy of the 21 September 2010 Resolution in CenPEG v. COMELEC, is herein attached as ANNEX C.) 10) Further, the Philippine Supreme Court in CenPEG v. COMELEC,11 agreed with CenPEG that the source code remained important and relevant especially in the backdrop for, inter alia, claims of fraud, to wit: On June 21, 2010 CenPEG filed a manifestation and omnibus motion, reiterating its prayer for the issuance of

Please see CENPEG v. 189546, September 21, 2010. 11 Id.
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a writ of mandamus in this case notwithstanding the fact that the elections for which the subject source code was to be used had already been held. It claimed that the source code remained important and relevant "not only for compliance with the law, and the purpose thereof, but especially in the backdrop of numerous admissions of errors and claims of fraud." The Court finds the petition and this last manifestation meritorious.12 (Emphasis and underscoring supplied)

D) Third Case: Guingona, et al. (Philippine Supreme Court G.R. 191846)

v. No.

COMELEC G.R. No.

11) On 23 April 2010, Author Teofisto Guingona, Jr., former Vice-President of the Philippines, filed before the Philippine Supreme Court---aside from five (5) other persons13--- a Petition for Mandamus against COMELEC. The said petition was entitled Guingona, Jr., et al. v. COMELEC, and docketed as G.R. No. 191846. Author Guingona asked the Philippine Supreme Court to compel COMELEC to explain fully the complete details of its preparations for the 10 May 2010 automated Philippine elections. Author Guingonas petition was due to the unraveling of alarming events of leading to the May 2010 automated Philippine elections. 12) On 06 May 2010, or four (4) days before the 10 May 2010 automated Philippine elections, the Supreme Court promulgated its Decision in Guingona, Jr., et al. vs. Comelec granting Guingona, et al.s petition for mandamus. The dispositive portion of the 06 May 2010 Supreme Court Decision states:


Id. BISHOP LEO A. SORIANO, QUINTIN S. DOROMAL, FE MARIA ARRIOLA, SERRANO, and ENGR. RODOLFO LOZADA.
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ISAGANI R.

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WHEREFORE, we GRANT the petition in part. Respondent Commission on Elections is ORDERED, within two (2) days from receipt of this Resolution, to disclose to petitioners and the public the following: 1. The nature and security of all equipment and devices, including their hardware and software components, to be used in the 10 May 2010 automated elections, as provided for in Section 7 of Republic Act No. 9369; 2. The source code for review by interested parties as mandated by Section 12 of Republic Act No. 9369; 3. The terms and protocols of the random manual audit, as mandated by Section 24 of Republic Act No. 9369; 4. A certification from the Technical Evaluation Committee that the entire Automated Election System is fully functional and that a continuity plan is already in place, as mandated by Sections 9 and 11 of Republic Act No. 9369; and 5. The certification protocol and the actual certification issued by the Department of Science and Technology that the 240,000 Board of Election Inspectors all over the country are trained to use the Automated Election System, as required by Section 3 of Republic Act No. 9369. This Resolution is immediately executory. SO ORDERED.14 (Emphasis in the original. Underscoring supplied. Internal citations omitted) (A copy of the 06 May 2010 Philippine Supreme Court Decision in Guingona, Jr., et al. vs. Comelec is herein attached as ANNEX D.)

Please see Guingona, et al. v. COMELEC, Philippine Supreme Court case G.R. No. 191846. The Philippine Supreme Court 06 May 2010 Decision can be accessed online at http://sc.judiciary.gov.ph/jurisprudence/2010/may2010/191846.htm.
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13) Further, the Philippine Supreme Court in Guingona, Jr. v. COMELEC,15 noted that just days before the 10 May 2010 automated Philippine elections, COMELEC still failed to disclose the source code for the PCOS to interested parties as mandated by Section 12, of R.A. 9262. As noted by the Supreme Court: Petitioners in Roque v. Comelec11 in fact pressed Comelec for a source code review. To this day, however, Comelec has yet to disclose the source code as mandated by law. In any case, considering the lack of material time, the Court in the exercise of its equity jurisdiction may even dispense with the requirement of proof of a prior demand in this case.16 (Emphasis and underscoring supplied) 14) Moreover, the Philippine Supreme Court took judicial notice of an alarming event in Guingona, Jr. v. COMELEC,17 specifically the recall of 76,000 compact flash cards, to wit: The Court further takes judicial notice of the fact, as widely reported in print and broadcast media, that with just six days to go before the 10 May 2010 elections, Comelec recalled 76,000 compact flash cards following widespread failure of the PCOS machines to read and tally the votes during the machine test conducted by Comelec and Smartmatic. Comelec spokesman James Jimenez was quoted as saying, Right now we are assuming that all of the machines were affected. We have stopped the testing and are pulling out all memory cards for reconfiguration.18 15) The Authors have not submitted examination under any other procedure investigation or settlement.

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this matter for of international

Id. Id. G.R. No. 191846, May 6, 2010. Id.

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IV.

FACTS OF THE COMMUNICATION

16) The 1987 Constitution of the Republic of the Philippines provides for a Commission on Elections (COMELEC). Among the powers and functions of the COMELEC is to enforce and administer all laws and regulations relative to the conduct of an election. The full powers and functions of COMELEC are provided in Section 2, ARTICLE IX-C of the Philippine Constitution: Section 2. The Commission on Elections shall exercise the following powers and functions: 1. Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. 2. Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. 3. Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. 4. Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the
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Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. 5. Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens' arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration. Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections, constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law. 6. File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. 7. Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies.
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8. Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to, its directive, order, or decision. 9. Submit to the President and the Congress, a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall.

17) On December 22, 1997, the Congress of the Republic of the Philippines enacted Republic Act No. 8436 (RA 8436) which authorized the Commission on Elections (COMELEC) to use an automated election system (AES) for the process of voting, counting votes and canvassing/consolidating the results of the national and local elections. RA 8436 also mandated COMELEC to acquire automated counting machines (ACMs), computer equipment, devices and materials; and to adopt new electoral forms and printing materials. 18) On 23 January 2007, the Philippine Congress passed Republic Act No. 9369, which amended RA 8436. The pertinent provisions of RA 9369 provides: SEC. 6. Section 6 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 5 Authority to Use an Automated Election System. To carry out the above-stated policy, the Commission on Elections, herein referred to as the Commission, is hereby authorized to use an automated election system or systems in the same election in different provinces, whether paper-based or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises: Provided, that for the regular national and local election, which shall be held immediately after effectivity of this Act, the AES shall be used in at least
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two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao, to be chosen by the Commission: Provided, further, That local government units whose officials have been the subject of administrative charges within sixteen (16) month prior to the May 14, 2007 election shall not be chosen: Provided, finally, That no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. The term local government unit as used in this provision shall refer to a highly urbanized city or province. In succeeding regular national or local elections, the AES shall be implemented nationwide." SEC. 10. Section 8 of Republic Act No. 8436 is hereby amended to read as follow: "SEC.12. Procurement of Equipment and Materials. - To achieve the purpose of this Act, the Commission in authorized to procure, in accordance with existing laws, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities, and other service, from local or foreign sources free from taxes and import duties, subject to accounting and auditing rules and regulation. With respect to the May 10, 2010 election and succeeding electoral exercises, the system procured must have demonstrated capability and been successfully used in a prior electoral exercise here or board. Participation in the 2007 pilot exercise shall not be conclusive of the system's fitness. "In determining the amount of any bid from a technology, software or equipment supplier, the cost to the government of its deployment and implementation shall be added to the bid price as integral thereto. The value of any alternative use to which such technology, software or equipment can be put for public use shall not be deducted from the original face value of the said bid." 19) Also, RA 9369 mandates the COMELEC to promptly make the source code of the AES available to interested parties for review. As mandated in Section 12 of RA 9369, to wit:

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SEC. 12. Section 10 of Republic Act No. 8436 is hereby amended to read as follows: "SEC.14. Examination and Testing of Equipment or Device of the AES and Opening of the Source Code for Review. - The Commission shall allow the political parties and candidates or their representatives, citizens' arm or their representatives to examine and test. "The equipment or device to be used in the voting and counting on the day of the electoral exercise, before voting start. Test ballots and test forms shall be provided by the Commission. "Immediately after the examination and testing of the equipment or device, parties and candidates or their representatives, citizen's arms or their representatives, may submit a written comment to the election officer who shall immediately transmit it to the Commission for appropriate action. "The election officer shall keep minutes of the testing, a copy of which shall be submitted to the Commission together with the minute of voting." "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." (Emphasis and underscoring supplied) 20) The source code for the AES is essential and very important since it is the mind of the AES. A source code is defined in Section 2 of RA 9369 as the "human readable instructions that define what the computer equipment will do."

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21) On 07 January 2009, COMELEC submitted to the Department of Budget and Management a P13.9 Billion-budget for the automation of the May 2010 Philippine elections. 22) On 05 March 2009, the Philippine Senate passed the P11.3 Billion supplemental budget for the automation of the May 2010 Philippine elections. 23) On 19 March 2009, eleven (11) prospective bidders obtained bid documents from COMELEC for the automation of the May 2010 Philippine elections. Only seven (7) bidders passed the bidding requirements. 24) On 24 March 2009, Pres. Gloria Macapagal-Arroyo signed into law Republic Act No. 9295 which allocates funds for the automation of the May 2010 Philippine elections. 25) On 30 March 2009, COMELEC held a pre-bidding conference. 26) On 04 May 2009, COMELEC conducted the public bidding, originally set on April 27. The bidding was moved to another date due to the request of four bidders which needed additional time to modify their respective proposals. 27) The COMELEC- Special Bids and Awards Committee (COMELEC-SBAC) disqualified Avante and Indra Systems Consortium for failure to comply with bid requirements. Indra Sistemas S.A, Hart Intercivic and Strategic Alliance Holdings Inc. did not submit an ISO certification. Avante was stricken out of the list after it failed to submit documents proving that it has engaged in three similar projects.

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28) On 08 May 2009, COMELEC disqualified all seven (7) bidders for failing to meet bid requirements. 29) On 14 May 2009, COMELEC-SBAC reconsidered four bidders: Indra Sistemas (Strategic Holdings, Inc./Hart Intercivic); Smartmatic/Total Information Management Corp.(Smartmatic-TIM); AMA group of companies/Election System and Software and Gilat/F.F. Cruz and Company, Inc./Filipinas Systems. 30) On 26 May 2009, Center for People Empowerment in Governance (CenPEG), a non-government organization, sent a request letter to COMELEC, specifically requesting a copy of the source code of the following: (a) (b) Precinct Count Optical Scan (PCOS) programs; the Board of Canvassers Consolidation/Canvassing System (BOC CCS) programs for the municipal, provincial, national, and congressional canvass; the COMELEC server programs; and the source code of the in-house COMELEC programs called the Data Capturing System (DCS) utilities.19

(c) (d)

31) In sending its request letter to COMELEC, CenPEG invoked the following pertinent portion of Section 12 of RA 9369: xxxx 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

Please see CENPEG v. 189546, September 21, 2010.
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political party or groups which may conduct their own review thereof.20 32) On 27 May 2009, the consortium of Smartmatic and Total Information Management (TIM) allegedly met the COMELEC bid requirements and offered the lowest bid at P7.2 Billion. 33) Nevertheless, Smartmatic violated the Bid Specifications of COMELEC by not putting in their Financial Bid any amount for the provision of the Digital Signatures of the Board of Election Inspectors- therefore making Smartmatics proposed Automated Election System non-compliant with RA 9369 and COMELECs Terms of Reference (TOR). 34) It was clear in Bid Bulletin No. 10, issued in April 2009 by COMELEC that Smartmatic was supposed to propose a WORM (write once, read many) Technology for data storage, but instead Smartmatic used the compact flash (CF) Cards which can be written over many times and therefore non-compliant. 35) Just like Avante and Indra, Smartmatic International, the Registered Bidder, is not ISO-Certified. Smartmatic used the ISO Certification of Jarltech of Taiwan, one of their Suppliers, which was not a member of the Smartmatic-TIM Consortium. But when Jarltech could not manufacture the required number of PCOS machines on the specified time-table, they dropped Jarltech and got a manufacturer in China. 36) Smartmatic is not the owner of the Technology but outsourced the Automated Election System to Dominion International, in violation of the Bid Specification of COMELEC and the Philippine Procurement Law.

Please see CENPEG v. 189546, September 21, 2010.
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37) On 28-29 May 2009, COMELEC tested the SmartmaticTIMs machines. 38) On 03 June 2009, Smartmatic-TIM to COMELEC. COMELEC-SBAC recommended

39) On 10 June 2009, COMELEC awarded the contract to Smartmatic-TIM to supply the 82,000 precinct count optical scan (PCOS) machines to be used in the May 2010 Philippine elections with its bid offer of P7.2 Billion. 40) On 24 June 2009, COMELEC granted CenPEGs request for the source code of the PCOS and the CCS. Nevertheless, COMELEC denied CenPEGs request for the source code of the DCS. COMELEC reasoned that the DCS was a system used in processing the Lists of Voters which is not part of the voting, counting and canvassing systems contemplated by R.A. 9369. Further, COMELEC reasoned that if the source code for the DCS were to be divulged, unscrupulous individuals might change the program and pass off an illicit one that could benefit certain candidates or parties.21 41) On 29 June 2009, TIM President Jose Mari Antuez, told then COMELEC Chairman Jose Melo that TIM was withdrawing from its partnership with Smartmatic citing irreconcilable differences and loss of confidence. 42) On 30 June 2009, COMELEC, TIM and Smartmatic, were set to sign the contract for the P7.2 Billion deal, but the deal was called off because TIM had not signed the incorporation papers. 43) Then COMELEC Chairman Melo also ordered the suspension of the contract negotiations with Smartmatic and TIM

Please see CENPEG v. 189546, September 21, 2010.
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due to the latter ventures failure to submit their incorporation papers. COMELEC Chairman Melo also stated that the joint ventures certificate of registration from the Securities and Exchange Commission was important because it would establish the legality of the partnership between Smartmatic and TIM stating that If there is no such document, who are we signing the contract with?22 44) COMELEC Chairman Melo gave TIM and Smartmatic until 03 July 2009 to iron out their differences. 45) On 03 July 2009, TIM and Smartmatic allegedly patched up their differences. COMELEC Chairman Melo stated that TIM and Smartmatic are set to sign the incorporation papers of their joint venture. 46) COMELEC Chairman Melo also hoped that COMELEC and the alleged joint venture of TIM and Smartmatic would sign the contract for the project by 10 July 2009 (Friday).23 47) On 06 July 2009, TIM and Smartmatic signed and filed their joint venture agreement before the Securities and Exchange Commission SEC.24 48) On 09 July 2009, members of the Concerned Citizens Movement and herein Complainants H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. BAGARES, GILBERT T. ANDRES, and FRANCISCO A. ALCUAZ --- aside from five (5) other persons25-- filed before the Philippine Supreme Court a Petition for Certiorari,

Back to Manual Voting: RP partner quits consortium; poll automation in peril, Philippine Daily Inquirer, June 30, 2009, p.6. 23 Automation is back on track, Manila Standard Today, July 4, 2009, p.1. 24Smartmatic, TIM give SEC joint venture papers, By Kristine L. Alave Philippine Daily Inquirer, First Posted 17:13:00 07/06/2009, http://newsinfo.inquirer.net/breakingnews/nation/view/20090706-214142/Smartmatic-TIMgive-SEC-joint-venture-papers. 25 ALLAN JONES F. LARDIZABAL, IMMACULADA D. GARCIA, ERLINDA T. MERCADO, MA. AZUCENA P. MACEDA, and ALVIN A. PETERS
22

23

Prohibition and Mandamus, against COMELEC, COMELEC-SBAC, the Department of Budget and Management, Smartmatic, and TIM. Their case was docketed as G.R. No. 188456, and was entitled Roque, Jr. et al. vs. Comelec, et al.26 They prayed therein that: PRAYER WHEREFORE, Petitioners respectfully pray that: 4. Pending the resolution of this Petition, a Temporary Restraining Order and/or Writ of Preliminary Prohibitory Injunction be IMMEDIATELY ISSUED, prohibiting Respondents COMELEC, COMELEC-SBAC, TIM and Smartmatic from signing and/or implementing the contract for the 2010 Elections Automation Project, and the Respondent Secretary of the Department of Budget and Management from releasing public funds for its implementation; 5. Moreover, on account of the primordial importance of the principles of transparency and accountability to the resolution of the instant controversy, a writ of mandamus be immediately issued directing all the Respondents to disclose to Petitioners and to this Honorable Court the full terms and conditions of the relevant agreements between and among themselves, including the agreement between Respondent Smartmatic and Dominion and Jarltech, respectively, and Respondent TIM and ToGo. 6. Upon due hearing, the instant Petition be GRANTED declaring the award by Respondent Comelec of the 2010 Elections Automation Project to the joint venture between Respondents Smartmatic and TIM to be

Please see Roque, et al. v. COMELEC, et al., Philippine Supreme Court case G.R. No. 188456, September 10, 2009. The Philippine Supreme Court Decision on this case can be accessed online at http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/188456.htm.
26

24

an exercise of grave abuse of discretion amounting to an excess or lack of jurisdiction, it being in violation of both statute and jurisprudence, and permanently prohibiting: (a) Respondents COMELEC, COMELEC-SBAC, TIM and Smartmatic from signing and/or implementing the contract for the 2010 Elections Automation Project. Other relief that are just and equitable under the premises are likewise prayed for. Makati City for Manila. June 09, 2009

49) On 13 July 2009, CenPEG once more asked COMELEC for the source code of the PCOS, together with other documents, programs, and diagrams related to the AES, since the COMELEC still did not release even the kinds of source code that it said it was approving for release.27 50) On 17 July, 20 July, and on 24 August 2009, CenPEG sent follow-up letters to COMELEC.28 51) On 26 August 2009, COMELEC replied to CenPEGs stating that the source code CenPEG wanted did not yet exist since: (a) COMELEC had not yet received the baseline source code of the provider, Smartmatic, since payment to it had been withheld as a result of a pending suit; (b) its customization of the baseline source code was targeted for completion only in November 2009; (c) under Section 11 of R.A. 9369, the customized source code still had to be reviewed by an established international certification entity, which review was

Please see CENPEG v. 189546, September 21, 2010. 28 Id.
27

COMELEC,

Philippine

Supreme

Court

case

G.R.

No.

25

expected to be completed by the end of February 2010; and (d) only then would the AES be made available for review under a controlled environment.29 52) On 10 September 2009, the Philippine Supreme Court promulgated its Decision in Roque, Jr. et al. vs. Comelec, et al., docketed as G.R. No. 188456, denying the petition of Complainants Roque et al.30 53) On 28 September 2009, Complainants Roque et al. filed a Motion for Reconsideration to the 10 September 2009 Decision of the Supreme Court in G.R. No. 188456.31 54) On 5 October 2009, CenPEG filed before the Philippine Supreme Court a petition for Mandamus against COMELEC, seeking to compel COMELEC to immediately make its source codes available to CenPEG and other interested parties.32 CenPEGs petition was docketed as G.R. No. 189546 and entitled CenPEG v. COMELEC. 55) On 10 February 2010, the Philippine Supreme Court promulgated its Resolution denying Complainants Roque et al.s Motion for Reconsideration to the 10 September 2009 Decision in Roque, et al. v. COMELEC, et al.33


Id. Please see Roque, et al. v. COMELEC, et al., Philippine Supreme Court case G.R. No. 188456, September 10, 2009. The Philippine Supreme Court Decision on this case can be accessed online at http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/188456.htm. 31 Please see Roque, et al. v. COMELEC, et al., Philippine Supreme Court case G.R. No. 188456, September 10, 2009. The Philippine Supreme Court Decision on this case can be accessed online at http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/188456.htm. 32 Id. 33 The 10 February 2012 Resolution of the Philippine Supreme Court in Roque, et al. v. COMELEC, et al., can be accessed online at http://sc.judiciary.gov.ph/jurisprudence/2010/february2010/188456.htm.
29 30

26

56) Also, on 10 February 2010, COMELEC filed a Manifestation before the Supreme Court, stating that it had already deposited on 9 February 2010 the source code to be used in the 10 May 2010 Philippine elections with the Bangko Sentral ng Pilipinas (Philippine Central Bank).34 57) On 22 February 2010, CenPEG stated in its Comment before the Supreme Court that COMELECs manifestation did not constitute compliance with Section 12 of R.A. 9369 but only with Section 11 of R.A. 8436.35 58) On 23 April 2010, former Vice-President of the Philippines and herein Complainant Teofisto Guingona, Jr.---aside from five (5) other persons36--- filed before the Philippine Supreme Court a Petition for Mandamus against COMELEC. It was entitled Guingona, Jr., et al. v. COMELEC, and docketed as G.R. No. 191846. Guingona, et al. asked the Philippine Supreme Court to compel COMELEC to explain fully the complete details of its preparations for the 10 May 2010 automated Philippine elections. Guingona, et al.s petition was due to the unraveling of alarming events of leading to the May 2010 automated Philippine elections. 59) On 06 May 2010, or four (4) days before the 10 May 2010 automated Philippine elections, the Supreme Court promulgated its Decision in Guingona, Jr., et al. vs. Comelec granting Guingona, et al.s petition for mandamus. The dispositive portion of the 06 May 2010 Supreme Court Decision states: WHEREFORE, we GRANT the petition in part. Respondent Commission on Elections is ORDERED, within two (2) days from receipt of this Resolution, to disclose to petitioners and the public the following:

G.R. No. 189546, September 21, 2010. G.R. No. 189546, September 21, 2010. 36 BISHOP LEO A. SORIANO, QUINTIN S. DOROMAL, FE MARIA ARRIOLA, SERRANO, and ENGR. RODOLFO LOZADA.
34 35

ISAGANI R.

27

1. The nature and security of all equipment and devices, including their hardware and software components, to be used in the 10 May 2010 automated elections, as provided for in Section 7 of Republic Act No. 9369; 2. The source code for review by interested parties as mandated by Section 12 of Republic Act No. 9369; 3. The terms and protocols of the random manual audit, as mandated by Section 24 of Republic Act No. 9369; 4. A certification from the Technical Evaluation Committee that the entire Automated Election System is fully functional and that a continuity plan is already in place, as mandated by Sections 9 and 11 of Republic Act No. 9369; and 5. The certification protocol and the actual certification issued by the Department of Science and Technology that the 240,000 Board of Election Inspectors all over the country are trained to use the Automated Election System, as required by Section 3 of Republic Act No. 9369. This Resolution is immediately executory. SO ORDERED.37 (Emphasis in the original. Underscoring supplied. Internal citations omitted)

60) Further, the Philippine Supreme Court in Guingona, Jr. v. COMELEC,38 noted that just days before the 10 May 2010 automated Philippine elections, COMELEC still failed to disclose the source code for the PCOS to interested parties as mandated by Section 12, of R.A. 9262. As noted by the Supreme Court:

Please see Guingona, et al. v. COMELEC, Philippine Supreme Court case G.R. No. 191846. The Philippine Supreme Court 06 May 2010 Decision can be accessed online at http://sc.judiciary.gov.ph/jurisprudence/2010/may2010/191846.htm. 38 Id.
37

28

Petitioners in Roque v. Comelec11 in fact pressed Comelec for a source code review. To this day, however, Comelec has yet to disclose the source code as mandated by law. In any case, considering the lack of material time, the Court in the exercise of its equity jurisdiction may even dispense with the requirement of proof of a prior demand in this case.39 (Emphasis and underscoring supplied) 61) Moreover, the Philippine Supreme Court took judicial notice of an alarming event in Guingona, Jr. v. COMELEC,40 specifically the recall of 76,000 compact flash cards, to wit: The Court further takes judicial notice of the fact, as widely reported in print and broadcast media, that with just six days to go before the 10 May 2010 elections, Comelec recalled 76,000 compact flash cards following widespread failure of the PCOS machines to read and tally the votes during the machine test conducted by Comelec and Smartmatic. Comelec spokesman James Jimenez was quoted as saying, Right now we are assuming that all of the machines were affected. We have stopped the testing and are pulling out all memory cards for reconfiguration.41 62) On 21 June 2010, CenPEG filed a manifestation and omnibus motion before the Supreme Court, and reiterated its prayer for the issuance of a writ of mandamus in their case despite the fact that the May 2010 Philippine elections for which the subject source code was to be used had already been held. CenPEG claimed that the source code remained important and relevant not only for compliance with the law, and the purpose thereof, but

39 40 41

Id. G.R. No. 191846, May 6, 2010. Id.

29

especially in the backdrop of numerous admissions of errors and claims of fraud.42 63) Months after the 10 May 2010 automated Philippine elections, COMELEC still failed to comply with the directive of the Supreme Court to disclose the PCOS source code for review by interested parties. As stated in the facts of CenPEG v. COMELEC,43 to wit: On June 24, 2009 the COMELEC granted the request3 for the source code of the PCOS and the CCS, but denied that for the DCS, since the DCS was a "system used in processing the Lists of Voters which is not part of the voting, counting and canvassing systems contemplated by R.A. 9369." According to COMELEC, if the source code for the DCS were to be divulged, unscrupulous individuals might change the program and pass off an illicit one that could benefit certain candidates or parties. Still, the COMELEC apparently did not release even the kinds of source code that it said it was approving for release. Consequently, on July 13, 2009, CenPEG once more asked COMELEC for the source code of the PCOS, together with other documents, programs, and diagrams related to the AES. CenPEG sent follow-up letters on July 17 and 20 and on August 24, 2009. On August 26, 2009 COMELEC replied that the source code CenPEG wanted did not yet exist for the reasons: 1) that it had not yet received the baseline source code of the provider, Smartmatic, since payment to it had been withheld as a result of a pending suit; 2) its customization of the baseline source code was targeted for completion in November 2009 yet; 3) under Section 11 of R.A. 9369, the customized source code still had to be reviewed by "an established international certification

Please see CENPEG v. COMELEC, 189546, September 21, 2010. 43 G.R. No. 189546, Sept. 21, 2010.
42

Philippine

Supreme

Court

case

G.R.

No.

30

entity," which review was expected to be completed by the end of February 2010; and 4) only then would the AES be made available for review under a controlled environment. Rejecting COMELECs excuse, on October 5, 2009 CenPEG filed the present petition for mandamus, seeking to compel COMELEC to immediately make its source codes available to CenPEG and other interested parties.44 64) Hence, on 21 September 2010or four (4) months after the May 2010 automated Philippine elections, the Philippine Supreme Court issued a Resolution in CenPEG v. COMELEC,45 again directing the COMELEC to make the source codes, for the AES technologies selected, immediately available to CenPEG and all other interested political parties or groups for independent review. As held by the Supreme Court in its 21 September 2010 Resolution: The pertinent portion of Section 12 of R.A. 9369 is clear in that "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." The COMELEC has offered no reason not to comply with this requirement of the law. Indeed, its only excuse for not disclosing the source code was that it was not yet available when CenPEG asked for it and, subsequently, that the review had to be done, apparently for security reason, "under a controlled environment." The elections had passed and that reason is already stale. WHEREFORE, the Court GRANTS the petition for mandamus and DIRECTS the COMELEC to make the source codes for the AES technologies it selected for

44Please

see CENPEG v. COMELEC, 189546, September 21, 2010. 45 G.R. No. 189546, Sept. 21, 2010.

Philippine

Supreme

Court

case

G.R.

No.

31

implementation pursuant to R.A. 9369 immediately available to CenPEG and all other interested political parties or groups for independent review. SO ORDERED.46

65) Further, the Philippine Supreme Court in CenPEG v. COMELEC,47 agreed with CenPEG that the source code remained important and relevant especially in the backdrop for, inter alia, claims of fraud, to wit: On June 21, 2010 CenPEG filed a manifestation and omnibus motion, reiterating its prayer for the issuance of a writ of mandamus in this case notwithstanding the fact that the elections for which the subject source code was to be used had already been held. It claimed that the source code remained important and relevant "not only for compliance with the law, and the purpose thereof, but especially in the backdrop of numerous admissions of errors and claims of fraud." The Court finds the petition and this last manifestation meritorious.48 (Emphasis and underscoring supplied) 66) On 11 September 2012, Smartmatic International Corporation, inter alia, filed a complaint for breach of contract before the Superior Court of Delaware, United States, against Dominion--- the software provider for the PCOS machines used by Smartmatic during the May 2010 automated Philippine elections. The Smartmatic complaint states, inter alia, that Dominion International breached its obligations under the License Agreement with Smartmatic by: (7) failing to place in escrow the required source code, hardware design and manufacturing information.49

Please see CENPEG v. 189546, September 21, 2010. 47 Id. 48 Id.
46

COMELEC,

Philippine

Supreme

Court

case

G.R.

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(Attached as ANNEX E are relevant pages of the redacted version of the Smartmatic complaint filed last 11 September 2012 in the US.) 67) As of now, no such source code has been made available to CenPEG, to the Authors, or to the Filipino public. 68) In a 17 February 2013 Philippine Star online news, it reported that the Technical Evaluation Committee (TEC) composed of the COMELEC, the Department of Science and Technology and the Commission on Information and Communications Technologyin a resolution noticed the lack of [a] certified source code50 69) Moreover, in the same 17 February 2013 news report, even the current COMELEC Chairman Sixto Brillantes admitted that: One argument is that in 2010, we had an election although no one actually saw the source code. Nobody even knew what was inside the Central Bank (where the source code was supposedly kept), he said. 51 (A copy of the 17 February 2013 Philippine Star online news is herein attached as ANNEX F.) 70) The same AES provided by Smartmatic and TIM during the May 2010 elections will be used by COMELEC for the forthcoming 13 May 2013 automated Philippine elections.


49http://www.scribd.com/doc/110048368/Smartmatic-Complaint-Vs-Dominion

Last accessed 20 February 2013. 50 http://www.philstar.com/headlines/2013/02/17/909767/comelec-no-more-mock-elections Last accessed 20 February 2013. 51 http://www.philstar.com/headlines/2013/02/17/909767/comelec-no-more-mock-elections Last accessed 20 February 2013.

33

71) COMELEC contracted the services of SLI Global Solutions (SLI, formerly Systest Labs), based in Denver, Colorado, USA, to conduct the AES certification testing for the 2013 National and Local Elections. SLI was the same international certification entity which conducted the review of the AES used during the May 10, 2013 Automated National and Local Elections and the AES enhancements for the scheduled 2011 ARMM Elections. 72) It is respectfully submitted that the manner by which the Philippines conducted the 10 May 2010 automated Philippine elections violated Article 25 of the ICCPR, while the manner by which the Philippines prepares for the forthcoming 13 May 2013 automated Philippine elections constitutes a continued violation of Article 25 of the ICCPR. A discussion on the legal grounds for this communication follows:

V.

LEGAL ARGUMENTS COMMUNICATION THE PHILIPPINES


OF THEIR

IN

SUPPORT

OF

THE

CLAIM 1:

HAS THE OBLIGATION AS ELECTORS---AS

TO ENSURE THE AUTHORS RIGHT TO THE FREE EXPRESSION DURING THE WILL GUARANTEED UNDER ARTICLE

10

MAY

2010

25

OF THE ICCPR,

AND THE

13

MAY

2013

AUTOMATED ELECTIONS.

73) The Philippines is a state party to the ICCPR. Hence, it has the treaty obligation to ensure the Authors right to the free expression of their will as electors---as guaranteed under Article 25 of the ICCPR, during the past 10 May 2010 and the forthcoming 13 May 2013 automated elections.

34

74) And as stated by this Committee in its General Comment on Article 25, there is a need for state parties to ensure that there is independent scrutiny of the voting and the counting process: 20. An independent electoral authority should be established to supervise the electoral process and to ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the Covenant. States should take measures to guarantee the requirement of the secrecy of the vote during elections, including absentee voting, where such a system exists. This implies that voters should be protected from any form of coercion or compulsion to disclose how they intend to vote or how they voted, and from any unlawful or arbitrary interference with the voting process. Waiver of these rights is incompatible with article 25 of the Covenant. The security of ballot boxes must be guaranteed and votes should be counted in the presence of the candidates or their agents. There should be independent scrutiny of the voting and counting process and access to judicial review or other equivalent process so that electors have confidence in the security of the ballot and the counting of the votes. Assistance provided to the disabled, blind or illiterate should be independent. Electors should be fully informed of these guarantees.52 (Emphasis and underscoring supplied) 75) Further, as stated by this Committee in its General Comment No. 25, State parties in their reports must indicate how they give effect to the free expression of the will of the electors, and how the secrecy, security, and validity of the voting process are guaranteed by law, as well as the practical implementation of these guarantees. As stated by this Committee :

General Comment No. 25, Article 25: Participation in Public Affairs and the Right to Vote, Human Rights Committee, 57th Session, U.N. Doc. No. CCPR/C/21/Rev.1/Add.7 (07/12/1996) (hereinafter General Comment No. 25), par. 20.
52

35

22. State reports should indicate what measures they have adopted to guarantee genuine, free and periodic elections and how their electoral system or systems guarantee and give effect to the free expression of the will of the electors. Reports should describe the electoral system and explain how the different political views in the community are represented in elected bodies. Reports should also describe the laws and procedures which ensure that the right to vote can in fact be freely exercised by all citizens and indicate how the secrecy, security and validity of the voting process are guaranteed by law. The practical implementation of these guarantees in the period covered by the report should be explained. 53 (Emphasis and underscoring supplied) 76) Hence, the General Comment No. 25 of this Committee implies that these guarantees that should be indicated in the report by State parties, are indispensable in their fulfillment of their state obligations under Article 25 of the ICCPR. 77) Nevertheless, the Philippines violated the Authors right to the free expression of their will as electors during the 10 May 2010 automated elections, and continues to violate such right in its conduct of the 13 May 2013 automated elections.

x 4/30/13 3:57 PM
Comment [1]: Chief, how were the following, in correct terms, violated? A) secrecy b)security c) validity of the voting process?

CLAIM 2: THE PHILIPPINES AUTHORS RIGHT TO THE FREE 2010 13

VIOLATED EXPRESSION

THE OF MAY

THEIR WILL AS ELECTORS DURING THE

AUTOMATED ELECTIONS, AND CONTINUES TO

10

VIOLATE SUCH RIGHT IN ITS CONDUCT OF THE MAY

2013

AUTOMATED ELECTIONS--- SINCE IT CONTROL OF THE TECHNICAL

GAVE
53

COMPLETE


General Comment No. 25, Article 25: Participation in Public Affairs and the Right to Vote, Human Rights Committee, 57th Session, U.N. Doc. No. CCPR/C/21/Rev.1/Add.7 (07/12/1996) (hereinafter General Comment No. 25), par. 22.

36

ASPECTS OF THESE AUTOMATED ELECTIONS TO A FOREIGN ENTITY, THE SMARTMATIC, SECRECY, THEREBY AND COMPROMISING SECURITY,

VALIDITY OF THE VOTES MADE OR MIGHT BE MADE BY THE AUTHORS.

78) For the Philippines, COMELEC is constitutionally mandated, inter alia, (a) to enforce and administer all laws and regulations relative to the conduct of an election, and (b) to decide all questions affecting elections. These are provided in Section 2, Article IX-C of the Philippine Constitution, to wit: Section. 2. The Commission on Elections shall exercise the following powers and functions: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. xxx xxx xxx

(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. 79) COMELECs constitutional mandate to enforce and administer all laws relative to the conduct of elections, necessarily includes enforcing and administering Section 26 of Republic Act No. 8436 (left intact by Republic Act No. 9369), which requires that the system to be used for the automated elections shall be under the exclusive supervision and control of COMELEC, to wit: Section 26. Supervision and control. - The System shall be under the exclusive supervision and control of the
37

Commission. For this purpose, there is hereby created an information technology department in the Commission to carry out the full administration and implementation of the System. The Commission shall take immediate steps as may be necessary for the acquisition, installation, administration, storage, and maintenance of equipment and devices, and to promulgate the necessary rules and regulations for the effective implementation of this Act. (Emphasis and underscoring supplied) 80) COMELECs constitutional mandate is consistent with the Philippines state obligation under Article 25 of the ICCPR to ensure the Authors right to the free expression of their will as electors. Relating this to the Committees General Comment No. 25, the Philippinesthrough COMELECshould have ensured the secrecy, security and validity of the voting process. 81) Thus, the Philippines violated Article 25 of the ICCPR when COMELEC abdicated its constitutional mandate (a) to enforce and administer all laws relative to the conduct of elections, and (b) to decide all questions affecting elections, by signing the 10 July 2009 Contract with Smartmatic. 82) And Article 3.3 of the 10 July 2009 Contract stipulates that Smartmatic shall be in charge of the technical aspects of the counting and canvassing software and hardware, including transmission configuration and system integration (Attached as ANNEX G is a copy of the 10 July 2009 Contract). Quoting Article 3.3 of the 10 July 2009 Contract: Article 3.3 The PROVIDER shall be liable for all its obligations under this Project, and the performance of portions thereof by other persons or entities not parties to this Contract shall not relieve the PROVIDER of said obligations and concomitant liabilities.

38

SMARTMATIC, as the joint venture partner with the greater track record in automated elections, shall be in charge of the technical aspects of the counting and canvassing software and hardware, including transmission configuration and system integration. SMARTMATIC shall also be primarily responsible for preventing and troubleshooting technical problems that may arise during the election. The PROVIDER must provide to SMARTMATIC at all times the support required to perform the above responsibilities. (Emphasis and underscoring supplied) 83) Article 3.3 of the 10 July 2009 Contract is a violation of Article 25 of the ICCPR since the Philippines, thru COMELEC, virtually surrendered and effectively divested complete control of the technical aspects of an automated May 2010 elections in favor of a 100% foreign corporation, Smartmatic. 84) Specifically, the Philippines violated Article 24 of the ICCPR since COMELECs abdicated its constitutional mandate to enforce and implement, inter alia, Section 26 of R.A. 8436 (left intact by R.A. 9369) which requires COMELEC to have exclusive supervision and control of the system to be used for the automated elections. With Article 3.3, COMELEC effectively surrendered to Smartmatic supervision and control of the system used for the 10 May 2010 automated elections. 85) Also, the Philippines, thru the COMELEC, violated Article 25 of the ICCPR when it surrendered the technical aspects of the automated May 2010 elections to Smartmatic- the entity in charge of such technical aspects. 86) Hence, when the Philippines, thru COMELEC, surrendered the technical aspects of the automated May 2010 elections to Smartmatic, the Philippines effectively surrendered control over the secrecy, security and validity of the votes made or

39

might be made by the Authors during the May 2010 Philippine elections.

CLAIM 3: THE PHILIPPINES AUTHORS RIGHT TO THE FREE 2010 13

VIOLATED EXPRESSION

THE OF MAY

THEIR WILL AS ELECTORS DURING THE

AUTOMATED ELECTIONS, AND CONTINUES TO

10

VIOLATE SUCH RIGHT IN ITS CONDUCT OF THE MAY

2013

AUTOMATED ELECTIONS--- SINCE IT

GAVE CONTROL OF THE PUBLIC AND PRIVATE KEYS TO ALL THE PCOS MACHINES TO SMARTMATIC, AGAIN COMPROMISING THE SECRECY, SECURITY AND VALIDITY OF THE VOTES MADE OR MIGHT BE MADE BY THE AUTHORS.

87) The Philippines violated the authors right to the free expression of their will as electors during the 10 May 2010 automated elections, and continues to violate such right in its conduct of the 13 May 2013 automated elections--- since it gave control of the public and private keys to all the PCOS machines to Smartmatic, again compromising the secrecy, security and validity of the votes made or might be made by the Authors. 88) Pursuant to COMELEC-SBAC Bid No. 10, COMELEC gave control of the public and private keys over the PCOS machines to Smartmatic. 89) Bid Bulletin No. 10 was issued by COMELEC-SBAC on 15 April 2009 and is therefore a public document. Bid Bulletin No. 10 clearly states, inter alia, that the digital signature shall be
40

assigned by the winning bidder to all members of the BEI and the BOC (whether city, municipal, provincial, district). 54 90) Bid Bulletin No. 10 further states that [f]or the NBOCs, the digital signatures shall be assigned to all members of the Commission and to the Senate President and the House Speaker. 55 91) Bid Bulletin No. 10 actually forms part of the Automation Contract between COMELEC and TIM and Smartmatic, since Articles 21.1 and 21.4, of the same contract, stipulate that Bid Bulletins issued by COMELEC-SBAC constitute the entire agreement between the parties, to wit:

ARTICLE 21 CONTRACT DOCUMENTS 21.1 Contract Documents refers to the following documents, and they [sic] are hereby incorporated and made integral parts of this Contract: xxx xxx xxx Annex P, P1 to P24- Bid Bulletins 1 to 25 xxx xxx xxx

21.4 This Contract, together with the Contract Documents, constitutes the entire agreement between the parties. xxx56 92) A contractual stipulation that gives Smartmatic and TIM the power to assign the digital signatures to all the members of the BEIs, the BOCs, the COMELEC, the Senate President, and the Speaker, clearly gives complete control of the 10 May 2010 elections to an entity other than COMELEC.


54 55 56

Bid Bulletin No. 10, issued by Public Respondent COMELEC-SBAC on 15 April 2009. Id. Pp. 21-22 of 10 July 2009 Contract.

41

93) Digital signatures are extremely crucial to an automated election since Section 22 of Republic Act No. 8436 (as amended by R.A. 9369) provides that[t]the election returns transmitted electronically and digitally signed shall be considered as official election results and shall be used as the basis for the canvassing of votes and the proclamation of a candidate. 94) It cannot be denied that it is Smartmatic that assigned the digital signatures since Article 3.3 of the Automation Contract stipulates that:

xxx xxx xxx SMARTMATIC, as the joint venture partner with the greater track record in automated elections, shall be in charge of the technical aspects of the counting and canvassing software and hardware, including transmission configuration and system integration. 57 xxx xxx xxx

95) According to the opinion of noted IT professor, Author Prof. Pablo Manalastas (faculty member of both the Ateneo de Manila University Computer Science Department and the UP Department of Computer Science) since Smartmatic is the entity responsible for generating the access keys, it may have the capability to change the election results of any precinct in the entire country: Since Smartmatic has this responsibility [of generating the access keys], it will have possession of all BEIs private keys, and will give Smartmatic the capability to change the [Election Results] of any precinct in the entire

57

Pp. 6-7 of the 10 July 2009 Contract.

42

country, resulting in massive computerized cheating in case this capability is exploited by Smartmatic.58 96) If there are any doubts as to the importance of controlling the access keys, then the ARMM 2008 elections will dispel these. During the 2008 ARMM elections, Smartmatic (which was then contracted by COMELEC to be the service provider for some of the polling equipments used) remotely accessed several tabulating machines to recalibrate their software after the machines zeroed-out the results due to an error in logging the number of cast ballots,59 and this without the supervision of COMELEC. 97) The above-reasons clearly show that the conduct of the automated 10 May 2010 elections was completely in the hands of Smartmatic, and not in the hands of the Philippines, through the COMELEC, thereby endangering the secrecy, security, and validity of the votes made or to be made by the Authors. 98) Further, the right of the Authors to the free expression of their will as electors, specifically to the secrecy of their votes, is not only meant to protect the voters but the electoral process itself. The Authors beseech the Committee to consider the sound guidance of the German Federal Constitutional Court when it made the following pronouncements in its Decision dated 03 March 2009, to wit: The principle of secret elections guarantees that the voter alone is aware of the content of his or her election decision, and obliges the legislature to take the necessary steps to protect the election secret. The secrecy of elections constitutes the most important institutional protection of the freedom of elections. In historic terms,

Quoted in footnote no. 42 of the Dissenting Opinion of Justice Antonio T. Carpio citing Prof. Manalastas at http://pmana.multiply.com/journal/item/68/Harry_Roque_vs_COMELECSmartmatic.
58

Please see footnote no. 42 of the Dissenting Opinion of Justice Antonio T. Carpio citing Manuel A. Alcuaz, Jr., Mapping the Future: Is the Smartmatic-TIM-COMELEC Contract FrontLoaded, Philippine Daily Inquirer, 20 July 2009, p.B2-2.
59

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secret elections may have been a caesura in the public nature of the election procedure because they renounced the open ballot in order to protect the freedom of election (Underscoring supplied. Internal citations omitted).60

CLAIM 4: THE PHILIPPINES AUTHORS RIGHT TO THE FREE 2010 13


FOR

VIOLATED EXPRESSION

THE OF MAY

THEIR WILL AS ELECTORS DURING THE

AUTOMATED ELECTIONS, AND CONTINUES TO

10

VIOLATE SUCH RIGHT IN ITS CONDUCT OF THE MAY THE

2013 10

AUTOMATED MAY THE

ELECTIONS---SINCE ELECTIONS, SECURITY AGAIN AND

THERE WAS NO REVIEW OF THE SOURCE CODES USED

2010

COMPROMISING

SECRECY,

VALIDITY OF THE VOTES MADE OR MIGHT BE MADE BY THE AUTHORS.

99) The Philippines violated the authors right to the free expression of their will as electors during the 10 May 2010 automated elections, and continues to violate such right in its conduct of the 13 May 2013 automated elections---since there was no review of the source codes used for the 10 May 2010 elections, again compromising the secrecy, security, and validity of the votes made or might be made by the Authors. 100) A source code review is mandated by Section 14 of R.A. 8436 (as amended by R.A. 9369), to wit: SEC.14. Examination and Testing of Equipment or Device of the AES and Opening of the Source Code for Review. xxx xxx xxx


60http://www.bundesverfassungsgericht.de/entscheidungen/rs20090303_2bvc000307en.html

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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.

101) Section 2 of Republic Act No. 8436, as amended, defines a source code as: SEC. 2. Definition of Terms. - As used in this Act, the following terms shall mean: xxx xxx xxx

12. Source code - human readable instructions that define what the computer equipment will do; and

102) Again, noted IT expert, herein Author Prof. Manalastas, commented on the grave importance of a source code review: The framers of Republic Act 9369, the Amended Automated Election System (AES) Law, realizing that the process of computerized counting of vote marks on paper ballots will be done in secret by the computer, provided an alternative that may be acceptable as a substitute to public counting -- source code review. If the source code of the program running on the PCOS computer can be reviewed by the community, then we will know how our vote marks are interpreted, how votes are assigned to the selected candidates, how votes are tallied, what data are saved for back up later, how the precinct ER EML file is generated, how it is digitally signed by the BEI, how the
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transmission to the municipal canvassing computer and other destinations is carried out, what details are placed in the audit logs and whether these details are sufficient, etc. With source code review conducted by people we trust, the computerized counting of votes, although carried out in secret by the PCOS computer, will be revealed to us, and so we can accept computerized counting as if it were public counting.61 103) Nevertheless, the COMELEC failed to have the source codes used by Smartmatic during the 10 May 2010 elections reviewed. 104) On 06 May 2010, or four (4) days before the 10 May 2010 automated elections, the Supreme Court promulgated its Decision in G.R. No. 191846 entitled Guingona, Jr., et al. vs. Comelec granting Complainant Guingona et al.s petition for mandamus. The dispositive portion of the 06 May 2010 Decision in Guingona, Jr., et al vs. Comelec states: WHEREFORE, we GRANT the petition in part. Respondent Commission on Elections is ORDERED, within two (2) days from receipt of this Resolution, to disclose to petitioners and the public the following: 1. The nature and security of all equipment and devices, including their hardware and software components, to be used in the 10 May 2010 automated elections, as provided for in Section 7[14] of Republic Act No. 9369;


61

Please see http://pmana.multiply.com.

46

2. The source code for review by interested parties as mandated by Section 12[15] of Republic Act No. 9369; 3. The terms and protocols of the random manual audit, as mandated by Section 24[16] of Republic Act No. 9369; 4. A certification from the Technical Evaluation Committee that the entire Automated Election System is fully functional and that a continuity plan is already in place, as mandated by Sections 9[17] and 11[18] of Republic Act No. 9369; and 5. The certification protocol and the actual certification issued by the Department of Science and Technology that the 240,000 Board of Election Inspectors all over the country are trained to use the Automated Election System, as required by Section 3[19] of Republic Act No. 9369. This Resolution is immediately executory. SO ORDERED. (Emphasis in the original. Underscoring supplied. Internal citations omitted) 105) The Supreme Court in Guingona, Jr. v. COMELEC,62 noted that just days before the 10 May 2010 automated elections, COMELEC still failed to disclose the source code for the PCOS to interested parties as mandated by Section 12, of R.A. 9262. As the Supreme Court noted: Petitioners in Roque v. Comelec11 in fact pressed Comelec for a source code review. To this day, however, Comelec has yet to disclose the source code as

62

G.R. No. 191846, May 6, 2010.

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mandated by law. In any case, considering the lack of material time, the Court in the exercise of its equity jurisdiction may even dispense with the requirement of proof of a prior demand in this case.63 (Emphasis and underscoring supplied) 106) The Supreme Court further noted alarming events in Guingona, Jr. v. COMELEC,64 such as the recall of the compact flash cards, to wit: The Court further takes judicial notice of the fact, as widely reported in print and broadcast media, that with just six days to go before the 10 May 2010 elections, Comelec recalled 76,000 compact flash cards following widespread failure of the PCOS machines to read and tally the votes during the machine test conducted by Comelec and Smartmatic. Comelec spokesman James Jimenez was quoted as saying, Right now we are assuming that all of the machines were affected. We have stopped the testing and are pulling out all memory cards for reconfiguration.65

107) Nevertheless, months after the 10 May 2010 automated elections, COMELEC still failed to comply with the directive of this Supreme Court to disclose the PCOS source code for review by interested parties. This is clear from the facts of CenPEG v. COMELEC,66 to wit: On June 24, 2009 the COMELEC granted the request3 for the source code of the PCOS and the CCS, but denied

63 64 65 66

Id. G.R. No. 191846, May 6, 2010. Id. G.R. No. 189546, Sept. 21, 2010.

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that for the DCS, since the DCS was a "system used in processing the Lists of Voters which is not part of the voting, counting and canvassing systems contemplated by R.A. 9369." According to COMELEC, if the source code for the DCS were to be divulged, unscrupulous individuals might change the program and pass off an illicit one that could benefit certain candidates or parties. Still, the COMELEC apparently did not release even the kinds of source code that it said it was approving for release. Consequently, on July 13, 2009, CenPEG once more asked COMELEC for the source code of the PCOS, together with other documents, programs, and diagrams related to the AES. CenPEG sent follow-up letters on July 17 and 20 and on August 24, 2009. On August 26, 2009 COMELEC replied that the source code CenPEG wanted did not yet exist for the following reasons: 1) that it had not yet received the baseline source code of the provider, Smartmatic, since payment to it had been withheld as a result of a pending suit; 2) its customization of the baseline source code was targeted for completion in November 2009 yet; 3) under Section 11 of R.A. 9369, the customized source code still had to be reviewed by "an established international certification entity," which review was expected to be completed by the end of February 2010; and 4) only then would the AES be made available for review under a controlled environment. Rejecting COMELECs excuse, on October 5, 2009 CenPEG filed the present petition for mandamus, seeking to compel COMELEC to immediately make its source codes available to CenPEG and other interested parties.67 108) Hence, on 21 September 2010or four (4) months after the 10 May 2010 automated elections, this Supreme Court issued a Resolution in Center for People Empowerment in Governance v.

67

Id.

49

COMELEC,68 again directing the COMELEC to make the source codes, for the AES technologies selected, immediately available to CenPEG and all other interested political parties or groups for independent review, to wit: The pertinent portion of Section 12 of R.A. 9369 is clear in that "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." The COMELEC has offered no reason not to comply with this requirement of the law. Indeed, its only excuse for not disclosing the source code was that it was not yet available when CenPEG asked for it and, subsequently, that the review had to be done, apparently for security reason, "under a controlled environment." The elections had passed and that reason is already stale. WHEREFORE, the Court GRANTS the petition for mandamus and DIRECTS the COMELEC to make the source codes for the AES technologies it selected for implementation pursuant to R.A. 9369 immediately available to CenPEG and all other interested political parties or groups for independent review. SO ORDERED. 109) Moreover, the Supreme Court in the said case, agreed with CENPEG that the source code remained important and relevant especially in the backdrop for, inter alia, claims of fraud, to wit: On June 21, 2010 CenPEG filed a manifestation and omnibus motion, reiterating its prayer for the issuance of a writ of mandamus in this case notwithstanding the fact that the elections for which the subject source code was

68

G.R. No. 189546, Sept. 21, 2010.

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to be used had already been held. It claimed that the source code remained important and relevant "not only for compliance with the law, and the purpose thereof, but especially in the backdrop of numerous admissions of errors and claims of fraud." The Court finds the petition and this manifestation meritorious.69 (Emphasis underscoring supplied) last and

110) On 11 September 2012, Smartmatic International Corporation, inter alia, filed a complaint filed in the United States against Dominion--- the provider of the software used in the PCOS machines. The Smartmatic complaint states, inter alia, that Dominion International breached its obligations under the License Agreement with Smartmatic by: (7) failing to place in escrow the required source code, hardware design and manufacturing information.70 111) However, until now, no such source code has been made available to the Authors, or to the public. 112) In fact, a 17 February 2013 Philippine Star online news report states that the Technical Evaluation Committee (TEC) composed of the COMELEC, the Department of Science and Technology and the Commission on Information and Communications Technologyin a resolution noticed the lack of [a] certified source code71 113) Moreover, in the same 17 February 2013 news report, even COMELEC Chairman Sixto Brillantes admitted that:


69 70

Id. http://www.scribd.com/doc/110048368/Smartmatic-Complaint-Vs-Dominion Last accessed 20 February 2013. 71 http://www.philstar.com/headlines/2013/02/17/909767/comelec-no-more-mock-elections Last accessed 20 February 2013.

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One argument is that in 2010, we had an election although no one actually saw the source code. Nobody even knew what was inside the Central Bank (where the source code was supposedly kept), he said. 72 114) Hence, it is clear that there is no method by which to determine whether the votes by the Authors during the 10 May 2010 elections were counted accurately by the source codes used by Smartmatic. Since the source codes were not made available to the public---as mandated by law, and consequently never reviewed by interested parties, these source codes remain suspect.

115) Moreover, the Supreme Court in Center for People Empowerment in Governance v. COMELEC,73 noted that: On June 21, 2010 CenPEG filed a manifestation and omnibus motion, reiterating its prayer for the issuance of a writ of mandamus in this case notwithstanding the fact that the elections for which the subject source code was to be used had already been held. It claimed that the source code remained important and relevant "not only for compliance with the law, and the purpose thereof, but especially in the backdrop of numerous admissions of errors and claims of fraud." The Court finds the petition and this manifestation meritorious.74 (Emphasis underscoring supplied) last and

116) Alas, the serious omissions committed by the Philippines through the Comelec in the 2010 elections are once again present in the forthcoming May 13, 2013 elections.

http://www.philstar.com/headlines/2013/02/17/909767/comelec-no-more-mock-elections Last accessed 20 February 2013. 73 G.R. No. 189546, Sept. 21, 2010. 74 Id.
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VI.

CONCLUSION

117) We have argued that the Philippines had breached the Authors right to suffrage guaranteed by Article 25 of the International Covenant on Civil and Political Rights. 118) We request that this Committee find and declare that the Republic of the Philippines breached its international obligation to guarantee the right of the Authors to the free expression of their will as electors, a right guaranteed and protected under Article 25 of the International Covenant on Civil and Political Rights. 119) We specifically request that this Committee declare that the Philippines violated the Authors right to the free expression of their will as electors, under Article 25 of the ICCPR, due to: (a) the highly questionable and irregular method by which the votes of the Filipino people, were counted during the 10 May 2010 automated Philippine elections, and will be counted in the 13 May 2013 automated elections, by the automated election system used; (b) the lack of transparency by which the votes of the Filipino people, were counted during the 10 May 2010 automated Philippine elections, and will be counted, by the source code used in the automated election system for the 13 May 2013 automated Philippines elections; (c) the highly questionable and irregular method by which the votes of the Filipino people, were counted during the 10 May 2010 automated Philippine elections, and will be counted in the 13 May 2013
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automated Philippine elections, due the irregularity in the system integration of the automated election system. 71) We also request that the Philippines pay the legal costs and expenses of the suit. VII. CHECKLIST OF SUPPORTING DOCUMENTATION 1. A copy of the 10 September 2009 Supreme Court Decision in Roque, et al., v. COMELEC, et al. is herein attached as ANNEX A. 2. A copy of the 10 February 2010 Supreme Court Resolution in Roque, et al. v. COMELEC, et al. is herein attached as ANNEX B. 3. A copy of the 21 September 2010 Resolution in CenPEG v. COMELEC, is herein attached as ANNEX C. 4. A copy of the 06 May 2010 Philippine Supreme Court Decision in Guingona, Jr., et al. vs. Comelec is herein attached as ANNEX D. 5. A copy of the relevant pages of the redacted version of the Smartmatic complaint filed last 11 September 2012 in the US is herein attached as ANNEX E. 6. A copy of the 17 February 2013 Philippine Star online news is herein attached as ANNEX F. Dated: Manila, Philippines May 3, 2013

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CENTER FOR INTERNATIONAL LAW (CENTERLAW) Unit 1804 Antel 2000 Corp. Centre 121 Valero Street, Salcedo Village Makati City, Metro Manila 1277 Philippines

H. HARRY L. ROQUE, JR.

GILBERT T. ANDRES

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