Is the Commission on Elections (Comelec) violating some major provisions in the automation law in its rush to implement the P11.3 billion automation project?

A public policy research center thinks so, and the fatal violations could possibly lead to a sequel of the Megapacific mess in 2004.

The Center for People Empowerment in Governance (CenPEG), composed of members of the academe, found at least two major provisions in Republic Act (RA) 9369 which the poll body failed to observe before it pushed through with the implementation of automation in next year's national elections.

Firstly, CenPEG said Comelec did not consult the local IT community on the technology to be used in the automation of elections, which RA 9369 requires.

Secondly, it failed to pilot-test automation in “highly urbanized areas and two provinces each in Luzon, Visayas and Mindanao” as required by law, and only relied on the no-contest Autonomous Region in Muslim Mindanao (ARMM) elections last year.

Lack of transparency

UP College of Law professor Vickie Avena, in a forum on Tuesday, said the Comelec had “no authority” to adopt the precinct count optical scan (PCOS) technology that will be used in the May 2010 polls since it failed to conduct public consultations.

Avena said the law mandates that Comelec adopt “the most suitable technology, with demonstrated capability” that does not compromise the principle of secret voting and public counting. In the case of PCOS, it does not measure up to this requirement as shown in the ARMM experience.

CenPEG director for policy study Bobby Tuason pointed out that PCOS technology manifested 23 errors and technical flaws when it was used in the ARMM polls. But the most dangerous "flaw" in the technology is its lack of transparency in the counting of votes.

Under the PCOS system, votes are counted by the machine with the results automatically transmitted for canvassing and consolidated from the municipal to the national level. This does away with the public monitoring and poll watching, which are crucial in preventing cheating.

The secrecy in the system makes it vulnerable to wholesale electronic cheating, Tuason said. “The whole automated election system is left primarily in the hands of the Comelec and the technology contractor—and unknown to us, the cheats—thus making it inconsistent with RA 969 which provides for transparent and credible elections.”

While the present members of the poll body may be guided with good intentions, CenPEG believes that Comelec was “ill-advised" and "ill-prepared” for the automation of the elections.

Already, it is behind schedule in its calendar of activities which could have an impact on the overall execution of the automation project.

Source code

In a separate letter to the Comelec en banc, CenPEG officials asked the poll body to provide them a copy of the “source code” of the PCOS, which may help them detect any attempt to commit wholesale fraud and cheating. The source code is the software containing the set of instructions in a computer system.

CenPEG noted that the Comelec failed to conduct a “source code” review in the ARMM elections due to “time constraint.” This time, the CenPEG wants the Comelec to submit the source code for review three months ahead of the election, as mandated by law. While a source code review will not eliminate cheating, “disclosing it for public scrutiny should provide a major safeguard,” CenPEG stressed.

In a separate interview, Tuason said CenPEG is not inclined to challenge before courts the alleged violations of the Comelec on RA 9369 but would leave it up to other interested parties.

In the botched automated polls in 2004, it was an information technology (IT) group that questioned the bidding process of Comelec. The Supreme Court found irregularities in the bidding process and nullified the contract awarded to Megapacific. The SC ruling came a few months before the May 2004 presidential race.