Human intervention opens gates to cheating in the May elections, says lawyer

Atty. George Erwin Garcia, secretary-general of the Grace Poe Legal Team, leads protest versus Comelec resolution that he sees will open gate to cheating due to human intervention.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Despite successfully electronically transmitting results on Election Day, the Commission on Elections requires the physical surrender of the SD card from the precinct before the Board of Canvassers will include the results in the canvassing of votes.

According to Atty. George Erwin M. Garcia, Secretary-General of the Grace Poe Legal Team, this will open the gates for cheating, as there will be human intervention and anything can happen from the precinct where the SD card will be secured to the Municipal/City Board of Canvassers who will collate the results and again physically surrender the SD cards to the Province/District Board of Canvassers and eventually to the National Board of Canvassers.

“It is clearly an extensive process,” said Atty. Garcia in his letter addressed to the Comelec en banc thru Chairman Andres Bautista.

According to Garcia, Comelec Resolution No. 10083 Comelec Resolution No. 10083[1] which laid down the Canvassing Procedure for the forthcoming May 9, 2016 elections goes against the rationale of Republic Act No. 8436, otherwise known as the Automated Election System Law, which is to “ensure free, orderly, honest, peaceful and credible elections, and assure the secrecy and sanctity of the ballot in order that the results of elections, plebiscites, referenda, and other electoral exercises shall be fast, accurate and reflective of the genuine will of the people”.

“In a nutshell, automated election aims to eliminate the very tedious process of manual counting of votes, reduce human interventions and likewise to prevent possible abuse/irregularities committed by unscrupulous individuals during the canvassing period,” Garcia said.

It may be noted that in an automated election, the votes per precinct of qualified candidates reflected in the election returns (ERs), are electronically transmitted by the Vote Counting Machines (VCMs) to the different servers and canvassing centers. The Consolidation and Canvassing System (CCS) then receives and processes these ERs and thereafter, reads the incoming data and canvasses the votes.

From there, the ERs are transmitted to the central server and to the Municipal Board of Canvassers (MBOC). From the MBOC, the results are forwarded to the Provincial Board of Canvassers (PBOC). The results are collated and finally transmitted to the National Board of Canvassers (NBOC) and Congress, where the results for national positions are canvassed.

Since the ERs are electronically transmitted, there is no more need for the Members of the Board of Election Inspectors (BEI) to personally deliver the election paraphernalia to the canvassing center in order for the votes to be manually counted. And considering further that the canvassing is conducted in real time, the winners for the different elective positions are determined as soon as the results are collated.

“Unfortunately, item III-A (Importing of Precinct Results from Vote Counting) and item IV (Generation and Printing of Reports) of COMELEC Resolution No. 10083 appear to be not in accord with the objective of the Automated Election Law,” he said.

Garcia stated in his letter the following reasons:

“First, the aforecited Resolution requires that the precinct results from the VCM’s main SD card be imported to the CCS even if the ERs are already electronically transmitted by the machine to the canvassing centers. This necessarily means that the BEI, just like during manual elections, are required to immediately surrender the main SD card to the Board of Canvassers so that the results will be included in the canvassing of votes despite the fact of successful transmission of the results. The Municipal/City Board of Canvassers will then surrender the collated result to the Province/District Board of Canvassers and eventually, to the National Board of Canvassers which is clearly an extensive process.

“Second, the same Resolution does not allow the Certificate of Canvass (COC) to be printed until and unless the data from the main SD card are imported to the CCS. This means that such importation of data is a condition sine qua non for the printing of COC and the proclamation of winners.

“Third, since the directive requires that the ERs transmitted by the VCMs be counter-checked with the data imported from the main SD card, it is very obvious that the Comelec favors the results found in the latter than the former. Ironically, the Comelec has allocated millions of pesos to ensure the effective and efficient transmission of the ERs to the CCS. The question now is: Why would the Comelec invest on something very expensive only to disregard the use of the same in the end?

“Fourth, the directive of data importation from the main SD cards affects the entire canvassing levels – from the precinct levels to the municipal/city to the provincial and finally to the national level of canvassing. Meaning, the proclamation of the winning candidates will be tremendously delayed as importation of data found in the SD cards is akin to the procedure in the manual election of the past.

“Fifth, in relation to the preceding paragraph, even if the winners of the local posts are already determined as shown in the readily available electronically transmitted ERs, the Board of Canvassers cannot proclaim them unless the data from the main SD card are fully imported to the CCS. Should the delivery of the main SD card and/or the importation of the data therein is delayed, the proclamation will be delayed, too.

“Sixth, there are certain possible unfortunate instances that Resolution No. 10083 has failed to address such as but not limited to the following:

1. What will happen if the ERs electronically transmitted by the VCM and the results imported from the main SD card do not match? Which result will prevail?

1. What if the main SD card was (intentionally or unintentionally) corrupted? Or, what if the data contained therein was manipulated with virus or malware that will alter/change the result of the election?

1. What if, despite several attempts, the CCS is simply unable to read the contents of the main SD card?

1. What if, for various reasons (lost, destroyed or violently seized during transit), the members of the BEI were unable to deliver the main SD card to the canvassers?

1. In all of the foregoing and other similar instances, what must the Board of Canvassers do? Are they required to proceed with the proclamation based on the electronically transmitted ERs or are they mandated to entirely disregard the same and surrender all election paraphernalia more specifically the CCS to the main Comelec office perhaps for investigation?

1. If in case the transmittal of the ERs from the VCMs are already complete, however, the data from the main SD card is yet to be imported, is it justifiable to delay the proclamation of the winning candidates despite the clear and established fact that they are successful their respective bids?

1. Is there a promulgated organic rules that the involved parties may rely on if in case they intend to avail of possible remedies?

“Eight, the process of importing the data from main SD card prior to proclamation is susceptible to various security threats. If the supposedly “secured” official website of the Comelec was easily taken down by hackers, the probability for someone to manipulate a mere SD card is not far-fetched.

“Ninth, the importation of the data found in the SD card is tantamount to “counter-checking” of votes which is only true in case of an election protest. By directing the importation of the result found in the main SD card prior to the proclamation, it is as if the Comelec is “motu propio” launching an “advance protest” by subtly performing a “recount” or “revalidation” of the votes electronically transmitted by the VCMs to the CCS.

“Tenth, in the previous automated elections, the reading of the data found in the SD card (CF card before) is required only if the results were not successfully transmitted to the canvassing center. In the subject Resolution, the reading and importation of the result found in the main SD card is required regardless if the results are successfully transmitted or not. If the purpose of the said directive is to employ a tighter security measure, why is it that the same is imposed only now? Is the COMELEC implying that the results of the previous automated elections are not accurate thus making the importation of the data as an indispensable part of the canvassing process?

“Eleventh, again, while it may be argued that the said directive is merely a precautionary measure, the need for the importation of the data from the main SD card only reveals the truth that the Comelec itself doubts the capacity of the VCMs to accurately count the votes and/or transmit the results to the CCS. This fact alone renders the Comelec’s multi-million-peso expense relative to the conduct of the 2016 automated election as useless and nugatory.

“Twelfth, the directive to import the data from the main SD card was not publicly announced and instead, was subtly inserted by the Comelec in the issued Resolution. Worse, the same was not subjected to a prior consultation with the stakeholders for reasons that only the Comelec is aware of. Hence, with all due respect, it is the honest belief of the undersigned that said directive is dubious and highly irregular considering that the implementation of which will truly open the floodgates of election machinations as further aggravated by the fact that there are no organic rules governing the same and/or concrete remedies available to any interested party.”

Garcia intimated in his letter that the subject directive “effectively defeats the very essence of the Automated Election Law hence its implementation must be disallowed.”