G.R. No. 188456

G.R. No. 188456 - H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. BAGARES, ALLAN JONES F. LARDIZABAL, GILBERT T. ANDRES, IMMACULADA D. GARCIA, ERLINDA T. MERCADO, FRANCISCO A. ALCUAZ, MA. AZUCENA P. MACEDA, ALVIN A. PETERS, suing as taxpayers and as concerned citizens, Petitioners, v. COMMISSION ON ELECTIONS, represented by HON. CHAIRMAN JOSE MELO, COMELEC SPECIAL BIDS and AWARDS COMMITTEE, represented by its CHAIRMAN, HON. FERDINAND RAFANAN, DEPARTMENT OF BUDGET AND MANAGEMENT, represented by HON. ROLANDO ANDAYA, TOTAL INFORMATION MANAGEMENT CORPORATION, and SMARTMATIC INTERNATIONAL CORPORATION, Respondents; ATTY. PETE QUIRINO-QUADRA, Petitioner-in-Intervention; SENATE OF THE PHILIPPINES, represented by its PRESIDENT, JUAN PONCE ENRILE, Movant-Intervenor.

Promulgated:

September 10, 2009

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DISSENTING OPINION

BRION, J.:

I write this Dissent mindful that a new system of exercising the constitutional right of suffrage is upon us. Automated election, first tested in the ARMM election on August 11, 2008, shall sooner or later be applied at the national level. The development, to be sure, is a change that we should welcome for the promises it brings – a peaceful, clean, orderly, fair, honest, efficient, and credible election. The fulfillment of this promise, however, is not a result that we can simply wish into our national life. Nor is it something we can attain in a hurry. Fulfillment is a result that the whole country must plan, work, and sacrifice for.

Interface of Powers: COMELEC and the Supreme Court

At the forefront in the national effort to achieve a computerized election system is, of course, the Commission on Elections (COMELEC) – the independent constitutional body tasked with the enforcement and administration of all election laws and regulations. The Supreme Court, as the court of last resort tasked to guard the Constitution and our laws through interpretation and adjudication of judiciable controversies, is an indispensable partner and participant in this endeavor, as the Constitution itself safeguards and regulates our electoral processes and policies, which are expressed through laws and COMELEC regulations. In fact, about five years ago, this Court decisively spoke on the matter of automation when we invalidated the “Mega Pacific Contract” between the COMELEC and Mega Pacific Consortium for the automation of the May 10, 2004 elections.[1]

Once again, we are called upon today with the daunting task of passing upon the validity of another election automation contract, this time between the COMELEC and Smartmatic International Corporation – Total Information Management Corporation (SMARTMATIC-TIM) for the coming May 10, 2010 elections.[2] In undertaking this task, I duly acknowledge that the COMELEC exercises considerable latitude and the widest discretion in adopting its chosen means and methods of discharging its tasks, particularly in its broad power “to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall."[3] The Court has interpreted this provision to mean the grant to “COMELEC [of] all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful and credible elections”[4] – an expansive view of COMELEC powers that is not at all novel. For, as early as 1941 under the 1935 Constitution, the Court already emphasized in Sumulong v. COMELEC[5] that:

The Commission on Elections is a constitutional body. It is intended to play a distinct and important part in our scheme of government. In the discharge of its functions, it should not be hampered with restrictions that would be fully warranted in the case of a less responsible organization. The Commission may err, so may this court also. It should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the great objective for which it was created-free, orderly and honest elections. We may not agree fully with its choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere.

Politics is a practical matter, and political questions must be dealt with realistically not from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions. [Emphasis supplied]

The automation question now before us, like any other COMELEC administration and enforcement matter, is a concern that COMELEC is entitled by law to handle on its own without any interference from any outside agency, not even from this Court, except pursuant to the allocation of powers that the Constitution has mandated. In other words, the COMELEC reigns supreme in determining how automation shall be phased in, how it shall affect all aspects of our electoral exercise, and how it shall operate, subject only to our intervention when our own constitutional duty calls for enforcement. Specifically, we cannot close our eyes when a grave abuse of discretion amounting to lack or excess of jurisdiction has been committed, such as when the COMELEC acts outside the contemplation of the Constitution and of the law.[6]

Consistent with this view, I do not aim to question the bidding the COMELEC undertook and its compliance with our automation laws – Republic Act (RA) Nos. 8436[7] and 9369[8] – in the absence of any violation sufficiently gross to amount to the proscribed grave abuse of discretion amounting to lack or excess of jurisdiction. My focus, rather, is on the gut issues that really strike at the heart of the right of suffrage and place the integrity of our electoral process at risk.

The Pilot Testing Issue

For one, I do not question the COMELEC’s present automation moves for lack of prior pilot testing – a point that has generated a lot of comment from both the ponencia and the separate opinions. I believe that raising a question on this point is misplaced because the disputed provision – Section 5 of RA No. 8436 as amended[9] – does not categorically and expressly demand a pilot test and, in fact, does not even mention the term “pilot test.” As worded, this provision should be read in the context of its title “Authority to Use an Automated Election System.” Thus, the provision is essentially a grant of authority to automate, with the automation being a limited one in the election immediately following the law’s passage and only going nationwide in the “succeeding regular national or local elections.” A pilot test is not an absolute necessity because it was never imposed as a condition sine qua non to a nationwide automation; Section 5 merely expressed a limit on the extent of automation that could take place in the election following the passage of RA No. 9369; the automated election must be partial and local. The COMELEC first exercised its authority to partially automate in the ARMM election held on August 11, 2008, so that this automated electoral exercise was effectively the “pilot exercise” the country embarked on in electoral automation. It can very well be, as the COMELC posits, the pilot test that Section 5, RA No. 8436, as amended, mentioned.

Strictly speaking, the use of automation for the first time in the ARMM election was not a violation of the limitation that Section 5 imposed, because the automation was properly local and partial. If there had been a violation at all, the violation was in the failure to use automation in the next following election after the passage of RA No. 9369 (in the 2007 national and local elections) and in the failure to strictly follow the terms of Section 5 in the first automated election, because the automated election took place only in portions of Mindanao. These violations, however, pertained to that first use of automation in the ARMM election, or, if at all, to the failure to use automation in the 2007 elections. They need not affect the automation for the May 10, 2010 election, whose budget for a nationally-implemented automated election Congress specifically provided for despite knowledge that no automation took place in the 2007 election as originally envisioned.[10] From this perspective, pilot testing is an issue that does not need to trigger the Court’s certiorari powers invoked in the present petition.[11]

The Abdication Issue

Despite the above conclusion, I still take exception to the present implementation of election automation, as it involves another more fundamental violation: the COMELEC, contrary to the Constitution and the law, now shares automation responsibilities with SMARTMATIC-TIM under their Automation Contract. In my view, this is a violation that transgresses the Constitution, at the same time that it is an action plainly outside the contemplation of the law. Based on this characterization, this sharing of responsibility over automation is a grave abuse of discretion on the part of the COMELEC that calls for the active intervention of this Court, pursuant to the second paragraph of Section 1, Article VIII of the Constitution.[12]

I take this view in light of Section 2, Article IX-C of the Constitution that commands the “COMELEC to enforce and administer all laws and regulations relative to the conduct of an election” and thereby gives the COMELEC sole authority to undertake enforcement and administrative actions in the conduct of elections. In the context of the present case, this constitutional mandate necessarily extends to the enforcement of Section 26 of RA No. 8436[13] which states in full:

Section 26. Supervision and control. – The System shall be under the exclusive supervision and control of the 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 supplied]

Rather than the exclusive supervision and control that this provision envisions, the COMELEC effectively shares responsibilities with SMARTMATIC-TIM in the automated May 10, 2010 elections by giving complete control of the technical aspects of this election to a private entity – SMARTMATIC-TIM. In the words of the petition, this was an “abdication” of the COMELEC’s constitutional mandate, evidenced by the terms of Articles 3.3, 6.7 and 7.4 of the Automation Contract and by the grant to SMARTMATIC-TIM of the public and private keys to the voting equipment.

The Ponencia and the Issue of Abdication

In addressing the issue, the ponencia strangely uses the same Articles cited above in arguing that COMELEC did not relinquish its control over the technical aspect of the Automated Election System (AES). It asserts that Article 3.3 of the Automation Contract[14] (which designates SMARTMATIC-TIM as the joint venture partner in charge of the technical aspect of the counting and canvassing software and hardware including transmission configuration and system integration) does not translate to ceding control of the electoral process to SMARTMATIC-TIM. To the ponencia, SMARTMATIC-TIM’s designated role is simply an eligibility requirement imposed on bidders operating under a joint venture.[15] The ponencia also supports this view by referring to the Request for Proposals (RFP) whose notice is for bids from a “complete solutions provider which can provide experienced and effective overall nationwide project management service and total customer support under COMELEC supervision and control to ensure the effective and successful implementation of the Project.”[16]

The ponencia further points to Article 6.7 of the Automation Contract which provides:

6.7 Subject to the provisions of the General Instructions to be issued by the Commission En Banc, the entire processes of voting, counting, transmission, consolidation and canvassing of votes shall be conducted by COMELEC’s personnel and officials, and their performance, completion and final results according to specifications and within the specified periods shall be the shared responsibility of COMELEC and PROVIDER. [Emphasis supplied]

To the ponencia, this provision apparently speaks for itself as it requires action by COMELEC’s own personnel.

The ponencia also found the petitioners’ allegation that SMARTMATIC-TIM has control over the public and private keys necessary to operate the Precinct Count Optical Scan (PCOS) machines to be speculative and without factual basis. Instead, it agreed with the opinion of the National Computer Center that the “nowhere in the RFP/TOR was it indicated that the COMELEC would delegate to [SMARTMATIC-TIM] full discretion, supervision and control over the [public and private keys].”

Refutation of the Ponencia’s Positions

a. Effect of Automation

In my view, the ponencia has taken the above positions because it viewed the cited Articles in isolation and really did not take into account the whole election process and the effect of automation on this process. Be it remembered that an election entails an extended process that starts even before actual voting begins when voters register. Voting itself is only a part of the process, as this is followed by the counting of the votes by the Board of Election Inspectors (BEI), the canvassing of the tallied votes by the Board of Canvassers (BOC), the transmission and consolidation of the canvassed results to the municipal, provincial and a national BOC, and finally the announcement and proclamation of the winners. True enough, the people undertaking all these activities, particularly in the traditional voting process, have been COMELEC officials, employees, and duly deputized government personnel. This consideration, however, is not enough in passing upon the COMELEC-SMARTMATIC-TIM arrangement under the Automation Contract.

b. The Ponencia’s Omissions

What the ponencia did not sufficiently explain is the COMELEC’s intent to introduce a new way of voting[17] that affects. not only on the act of casting votes, but also the whole manner by which the counting and canvassing of votes, the transmission and collation of results, and the proclamation of winners are to be undertaken. All these are reflected in detail in the RFP, heretofore mentioned, whose call was for a “complete systems provider, and not just a vendor, which can provide experienced and effective overall nationwide project management service and total customer support (covering all areas of project implementation including technical support, training, information, campaign support, civil and electrical works service, warehousing, deployment, installation and pullout, contingency planning, etc.) under COMELEC supervision and control…”[18] All these automation activities are intrusions into the traditional COMELEC domain and cannot be simply glossed over.

The ponencia likewise failed to mention that Section 26 of RA No. 8436 categorically required that the AES to be installed shall be under COMELEC’s exclusive supervision and control; for this purpose, the law created an Information Technology Department (ITD) within the COMELEC to carry out the full administration and implementation of the system. Underlying the COMELEC’s mandate of exclusive supervision and control over the AES in Section 26 is the adoption of measures for the “acquisition, installation, administration, storage and maintenance of equipment and devices and the promulgation of the necessary rules and regulations for the effective implementation of RA No. 8436.”

c. Section 26 of RA No. 8436

Under Section 26, the mandate of the law is clear – the operative word used is “exclusive,” which means that the automation responsibility given to the COMELEC cannot be shared with any other entity. Specifically, it means that the COMELEC, through its ITD, shall have full and exclusive control over the entire process of voting, counting, transmission, consolidation and canvassing of votes, including their performance and completion and the final results. No special interpretative skill is necessary to appreciate the meaning of “exclusive.” “Supervision and control,” on the other hand, are terms that have practically attained technical legal meaning from jurisprudence.[19] “Control” as the established cases signify means to exercise restraining or directing influence over; to dominate, regulate; hence, to hold from action; to curb; to subject; also to overpower.[20] In any interpretation of Section 26, these are key terms and the standards that should predominate in determining whether this Section has been complied with. The ponencia, unfortunately does not appear to have considered this Section at all.

d. The Information Technology Department

Given the bidding terms and the qualification imposed on the “complete systems provider,” what the ITD remained to do after the systems provider is in place becomes a puzzle whose elusive answer is nowhere to be found in the laws and the regulations in place. Presumably, the ITD can still couch its functions in terms of the “supervision and control” that Section 26 commands and which the COMELEC specified in the RFP. This intent, however, cannot be simply manifested in the law and parroted in the RFP as proof that there had been compliance; such compliance must be shown and must stand the test of overt acts, particularly contemporaneous acts the COMELEC and its systems provider undertake in furtherance of the intended automation. The best evidence of this intent, of course, is the contract that defines the parties’ respective roles in the automation. The contractual terms are likewise the best evidence of whether the responsibility for automation is exclusive, as the cited Section 26 requires.

e. The Automation Contract Examined

The Automation Contract between the COMELEC and SMARTMATIC-TIM, executed on July 10, 2009, fully defines the automation “project” to be undertaken. It delineates as well the roles the parties shall respectively undertake in pursuing the project, and the expectations that each party has from the other.

The “project” is defined as “the COMELEC’s nationwide automation of the voting, counting, transmission, consolidation and canvassing of votes for the May 10, 2010 Synchronized National and Local Elections, consisting of the three (3) components mentioned in the Bidding Documents (the RFP)”.[21] The three components are:[22]

Component I: Paper-based Automated Election System (AES)

1-A. Election Management System (EMS)

1-B. Precint-Count Optical Scan (PCOS System)

1-C Consolidation / Canvassing System (CCS)

Component 2: Provision for Electronic Transmission of Election Results, using Public Telecommunications Network.

Component 3: Overall Project Management.

SMARTMATIC-TIM, as the service provider, has the obligation to provide the goods the project shall require, generally described in the contract as all the materials necessary to carry out the project,” except the ballot boxes.[23] It shall likewise provide the services defined as “all the acts to be performed or provided by the PROVIDER [SMARTMATIC-TIM] to COMELEC for the operation and completion of the Project.” [24]

Under Article 3.2, “[t]he provider shall provide the Goods and perform the Services under this Contract and the Contract Documents. It shall provide competent project management, technical manpower and efficient services. It shall ensure the proper, satisfactory and timely execution and completion of the Project.” This is complemented by Article 3.3 whose second paragraph in turn states that “[SMARTMATIC-TIM], 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-TIM] shall also be primarily responsible for preventing and troubleshooting technical problems that may arise during the election.”

The COMELEC, for its part, bound itself to pay under the terms of the contract, and shall be responsible, among others, for:

6.3.2. Closely coordinating with the PROVIDER in the preparation of the Sites and set-up the hardware, network installation, software installation, user testing and training. For the duration of the Project, COMELEC shall provide continuing assistance to the PROVIDER on the needs of the Project.

6.3.6. Creating its own Project Team called the Project Management Office (PMO) for the purpose, among others, of overseeing the Project’s execution and implementation. It shall allow the PROVIDER access to concerned or responsible COMELEC officials.[25]

As heretofore mentioned, Article 6.7 of the Automation Contract provides for the conduct by the COMELEC personnel and officials of the entire electoral process, but their performance, completion and final results, according to specifications and within the specified periods, shall be the shared responsibility of COMELEC and the PROVIDER.[26] Article 7.4 provides that “[u]pon delivery of the Goods, in whole or in part, to the warehouses as approved by COMELEC, the Equipment shall be under the custody, responsibility and control of the PROVIDER.”[27]

Interestingly, the contract does not even mention the COMELEC’s ITD and how it will interact with SMARTMATIC-TIM in the implementation of the project. The Project Management Office (PMO) is specifically mentioned, but only for the purpose of overseeing the project’s execution and implementation; it is not considered as an office with authority to speak on technical matters. On technical matters, SMARTMATIC-TIM reigns supreme and the ITD is not even mentioned. Under this situation, the PMO cannot but merely be a monitoring or liaison office, rather than an office supervising or controlling the project for COMELEC. It cannot supervise and control if SMARTMATIC-TIM has the last say on technical matters. In fact, the COMELEC itself, under Article 6.3.2, only plays an assisting role to SMARTMATIC-TIM, thus raising the direct implication that the latter has the lead role in all technical activities this Article mentions. Thus viewed, can the PMO raise any higher than the COMELEC?

f. The Shared Responsibility

Based on all these considerations drawn from the RFP and the Automation Contract, I cannot escape the conclusion that what exists is not the exclusive supervision and control of the automation process by the COMLEC, but a shared responsibility between the contracting parties to achieve this end. To point out the obvious, SMARTMATIC-TIM takes care of project management, with the PMO relegated to the blurry role of “overseeing the Project’s execution and implementation” and with no other clearly defined role in the automation project. ITD does not even exist insofar as the project documents are concerned. Thus, while the COMELEC retains its traditional role with respect to the running of the election itself, a new election process is in place that is substantially affected by automation. Stated otherwise, while the COMELEC truly controls the BEI, the BOC, and the administrative and adjudicative staff attending to the election process, the voters themselves, and even the BEI and the BOC, must yield to the process that automation calls for, which process is essentially technical and is in the hands of SMARTMATIC-TIM, the provider who wholly supplies the hardware and the software that controls the voting, counting, canvassing, consolidation and transmission of results, and who expressly has control and custody over the election equipment to be used in the voting, with no reserve power whatsoever on the part of the COMELEC in this regard.[28] Not to be forgotten is that SMARTMATIC-TIM also provides the necessary services that run across voting, counting, canvassing, consolidation and transmission activities.

These arrangements, viewed from all sides, does not indicate an exclusive supervision and control situation over the automation process. To be exact, they involve shared responsibilities that, however practical they may be from the business and technical perspectives, are arrangements that Philippine law does not allow.

Access Keys and Digital Signatures

Separately from all these considerations is the matter of the access keys and digital signatures that are objectionable, not merely because of the intrusion in the technical end of automation, but because they effectively hand over control of the election process to SMARTMATIC-TIM.

Contrary to the ponencia’s findings, a close perusal of the automation contract’s supporting documents indicate that the COMELEC has in fact effectively handed over to SMARTMATIC control over the AES, particularly with respect to the following quoted technical aspects:

a. Generate and distribute the access keys for the canvassing equipment and 82,200 optical scanners to be used on election day;[29]

b. Deliver the 82,200 optical scanners to their designated precincts and secure them on site;[30]

c. Prepare the polling places and canvassing centers in all levels to make them fully functional;[31] and

d. Maintain 100% electronic transmission capability on election day (SMARTMATIC-TIM to fill the 25% gap of the country’s current 75% network coverage) [Emphasis supplied]

The access keys are significant because control and possession of these keys translate to the capacity to change election results in any precinct in the country. This conclusion can be drawn from the following exchanges during the oral arguments:

ASSOCIATE JUSTICE CARPIO: Now what is the first function of the Commission on Elections under the Constitution?

ATTY. ROQUE: Well, to supervise the conduct of elections, Your Honor.

xxx xxx xxx

ASSOCIATE JUSTICE CARPIO: In short, the Constitution mandates that the COMELEC must have control over the election process?

ATTY. ROQUE: Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO: Okay. Who has possession of the public and private keys of this automation program.

ATTY. ROQUE: Smartmatic, Your Honor.

xxx xxx xxx

ASSOCIATE JUSTICE CARPIO: Would you know how these public and private keys are generated?

xxx xxx xxx

ATTY. ROQUE: Yes, Your Honor. It is also Smartmatic that would generate that.

xxx xxx xxx

ASSOCIATE JUSTICE CARPIO: Okay. The private keys refer to the keys given to BEI members, correct?

ATTY. ROQUE: Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO: Is this generated by the BEI member or given to them?

ATTY. ROQUE: Given to them, Your Honor.

xxx xxx xxx

ASSOCIATE JUSTICE CARPIO: Okay. But in this case, the BEI members will not generate their own password, they will be given the password, the key, the private key by the Smartmatic people?

ATTY. ROQUE: Yes, Your Honor, because as explained by Professor Manalastas, they will have to be digital signatures to be provided by Smartmatic.

ASSOCIATE JUSTICE CARPIO: And the public keys--- why are the public keys important?

ATTY. ROQUE: Well, Your Honor, because unless you have – It has to be congruence between the private and public key before you can have access to the system, Your Honor. It works as if it is a functional equivalent of two keys, Your Honor. That must be used together, otherwise, it cannot enter.

ASSOCIATE JUSTICE CARPIO: And the public keys will not be known to the BEI but will only be known to the (interrupted)

ATTY. ROQUE: Smartmatic, Your Honor.

xxx xxx xxx

ASSOCIATE JUSTICE CARPIO: Okay. So the public and private keys will be generated by the Smartmatic and they will be in control of this, they can change it anytime, and that gives them the power to change the results of any precinct, correct?

ATTY. ROQUE: Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO: So they control the election process?

ATTY. ROQUE: Yes, Your Honor. [Emphasis supplied][32]

Bid Bulletin No. 10 issued by COMELEC-SBAC on April 15, 2009 confirms the correctness of what the above exchange discussed. This Bulletin states, among others, that the “digital signature shall be assigned by the winning bidder [SMARTMATIC-TIM in the present case] to all members of the BEI and BOC. It further states that “for [National Board of Canvassers or NBOC], the digital signatures shall be assigned to all members of the Commission and to the Senate President and the House Speaker.” These terms are all consistent with Article 3.3 of the Automation Contract, heretofore mentioned, which allows SMARTMATIC-TIM to be “in charge of the technical aspects of the counting and canvassing software and hardware, including transmission configuration and system integration.” On this point, the following oral argument exchanges are illuminating, viz:

ASSOCIATE JUSTICE CARPIO: Are you familiar with Bid Bulletin No. 10 issued on April 15, 2009 of the COMELEC’s BAC Committee?

ATTY. ROQUE: Well, off-hand, Your Honor, I cannot recall Bid Bulletin No. 10, and I do not have a copy of Bulletin No. 10.

ASSOCIATE JUSTICE CARPIO: Okay. I will read to you Bid Bulletin No. 10 issued by the COMELEC dated April 15. This is from the website of the PCIJ.

ATTY. ROQUE: Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO: The digital … I am quoting now: “The digital signature should be assigned by the winning bidder to all members of the BEI and BOC. The digital signature shall be issued by a Certificate Authority nominated by the winning bidder and approved by the COMELEC.” In other words, SMARTMATIC, the winning bidder, will nominate DERISIGN to be the Certification Authority, just ask COMELEC for approval and COMELEC will say “approved.” From then on, it is SMARTMATIC that will deal with DERISGIN on the generation of the public and private keys.

ATTY. ROQUE: That is correct, Your Honor.

ASSOCIATE JUSTICE CARPIO: So, control of the public and private keys are in the hands of SMARTMATIC. Now, what should the COMELEC do to regain control of the election process?

ATTY. ROQUE: Well, we do not know, Your Honor, because as far as DERISIGN is concerned, they will not deal with the COMELEC, Your Honor.

ASSOCIATE JUSTICE CARPIO: Yes, but COMELEC should recall this and say we will deal with DERISIGN on generation of the public and private keys and we will hold exclusive possession and control; we will not share these public and private keys with SMARTMATIC-TIM or with anybody because whoever is in possession of these keys can change the results of the election, correct?

ATTY. ROQUE: That is possible, Your Honor. Yes. In fact, that is what COMELEC should do.

ASSOCIATE JUSTICE CARPIO: So, it is not enough that COMELEC should have co-possession of the keys. They must have sole and exclusive possession of those public and private keys because the Constitution vests in the COMELEC alone control of the electoral process, correct?

ATTY. ROQUE: Absolutely, Your Honor. [Emphasis supplied][33]

A noted expert in computer science, Professor Pablo Manalastas of the Ateneo de Manila University Computer Science Department and the University of the Philippines Department of Computer Science explains the significance of the private keys in relation to the digital signatures to be provided by SMARTMATIC-TIM thus:

The real key to the sanctity of the ballot is the private keys to be issued by the BEI. Unfortunately, the private key is not private at all. After collation of votes, the BEI seals its tally with a digital signature using private keys before transmitting the results. These digital signatures would be generated and assigned by SMARTMATIC and or groups authorized by it. SMARTMATIC would have possession of the secret and the public keys of all BEI personnel. The person in possession of the secret key can change the vote of the precinct. [34]

The digital signatures are crucial since Section 22 of the RA No. 8436 as amended provides that “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.”[35] Thus, by placing solely in the hands of SMARTMATIC-TIM the discretion to assign the “digital signatures,” the COMELEC has effectively surrendered control of the May 10, 2010 elections and violated its constitutional mandate to administer the conduct of elections in the country. Significantly, even the counsel for SMARTMATIC-TIM admitted during the oral arguments that the COMELEC should not have given to SMARTMATIC-TIM the possession and control of the public and private keys, thus:

ASSOCIATE JUSTICE CARPIO: Okay, let us go [to] the public and private public keys, you were saying that COMELEC if it wants can have exclusive possession and control of the public and private keys, is that right?

ATTY. LAZATIN: That is correct, Your Honor.

ASSOCIATE JUSTICE CARPIO: And it will not be a problem for SMARTMATIC in performing its obligations under the contract, that is right?

ATTY. LAZATIN: That is correct, Your Honor.

ASSOCIATE JUSTICE CARPIO: So, it is the choice of COMELEC if they want to have sole and exclusive possession of the public and private keys?

ATTY. LAZATIN: We even believe Your Honor that the COMELEC has no choice because it is the one conducting the elections.

ASSOCIATE JUSTICE CARPIO: So, it should not have given to SMARTMATIC possession and control of the public and private keys?

ATTY. LAZATIN: Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO: So, you agree with me that it should be given back solely to COMELEC because that is the effective control over the automation process?

ATTY. LAZATIN: That is correct until after the election, Your Honor, I would like to stress that this is a least arrangement Your Honor so that the electronic key will have to be returned to the lessor, Your Honor.

ASSOCIATE JUSTICE CARPIO: No, I am not talking about the electronic key, I am talking about the digital signatures.

ATTY. LAZATIN: Agreed, Your Honor.

ASSOCIATE JUSTICE CARPIO: Okay, you agree that it belongs, it should be under the possession and control of COMELEC?

ATTY. LAZATIN: That is correct, Your Honor.[36]

CONCLUSIONS

Section 26 clearly provides that the ITD shall have exclusive supervision and control of the AES and shall carry out the full administration and implementation of the system. To fully implement this statutory requirement, the COMELEC should have stipulated in the automation contract that it is the ITD, and not SMARTMATIC-TIM, that should be made in charge of the technical aspects of the automated May 10, 2010 elections, consistent with its constitutional mandate as well as Section 26 of RA No. 8436. Under the present contract, the exclusive supervision and control over the AES that the law in its wisdom has put in place, has simply been negated.

To be wary of giving control of the critical elements of our election process to an entity other than the COMELEC cannot and should not be regarded as an unhealthy skepticism that we should shy away from. On the contrary, wariness should be our mindset, particularly on legal matters bearing on elections and their automation, given the constitutional and legal guidelines that foist on us the standard of a fair, clean, honest and credible election. We must be wary, too, because we are not wanting in warnings from those who have waded ahead of us into the waters of automation. As observed in foreign jurisdictions with previous experience in the use of automated systems:[37]

The particular danger in computer-controlled voting machines was said to lie in the fact that elections could be much more effectively influenced via manipulation of the software by the device manufacturer than in ballot box elections. For instance, it was said to be possible for faulty software to allot a certain share of the votes cast to a certain party regardless of the election decision by the respective voter or for the total votes cast to be divided among the parties standing for election according to a set proportion. Manipulations were said to be possible both by politically or financially motivated “insiders”, in particular employees of the manufacturer, and by external third parties who gained access to the computers used by the manufacturer (for instance via viruses or trojans); they were said with regard to the complexity of the software used not always to be discovered even in careful quality control effected by the manufacturer. Although it was said to be necessary to prevent unauthorised access to the devices between the elections through suitable security measures, no such monitoring was said to take place in Germany; there were also said to be no suitable regulations in force that were able to guarantee protected storage of the voting machines.[38]

Broad as the power of the COMELEC may be as the independent constitutional body tasked to enforce and administer all laws and regulations relative to the conduct of elections, it has no competence to act outside the Constitution and its supporting statutes;[39] the scope of its activities is circumscribed by our election laws and by the Constitution.[40] Thus, while we accord the greatest respect to the means adopted by the COMELEC to resolve policy questions on the conduct and regulation of elections and give its actions the greatest presumption of regularity, we must not hesitate to declare its actions grossly abusive of its constitutionally-granted discretion when it acts outside the contemplation of the Constitution and of our laws.[41] In saying this, I have to hark back to where I started in this Dissent. I am not against and would welcome automation undertaken within the legal and constitutional limits. Consequently, while I vote to strike down automation contract between COMELEC and SMARTMATIC-TIM as invalid for violating Section 2, Article IX (C) of the Constitution and Section 26 of RA No. 8436, as amended by RA No. 9369, I would not hesitate to accept an automation arrangement without the legally objectionable features if COMELEC can still work this out for partial or even national implementation in the May 10, 2010 elections.

Accordingly, I dissent from the majority opinion.

ARTURO D. BRION

Associate Justice

[1] See Information Technology Foundation of the Philippines v. COMELEC, G.R. No. 15939, January 13, 2004, 419 SCRA 141.

[2] Contract for the Provision of An Automated Election System for the May 10, 2010 Synchronized National and Local Elections dated July 10, 2009(Automation Contract).

[4] Loong v. COMELEC, G.R. No. 133676, April 14, 1999, 305 SCRA 832, 870-871.

[6] CONSTITUTION, Article VIII, Section 1. See also supra note 4.

[7] An Act Authorizing The Commission On Elections To Use An Automated Election System In The May 11, 1998 National Or Local Elections And In Subsequent National and Local Electoral Exercises, Providing Funds Therefor and For Other Purposes.

[8] An Act Amending Republic Act No. 8436, Entitled “An Act Authorizing The Commission On Elections To Use An Automated Election System In The May 11, 1998 National Or Local Elections And In Subsequent National and Local Electoral Exercises, To Encourage Transparency, Credibility, Fairness and Accuracy of Elections, Amending For The Purpose Batas Pambansa Blg. 881, As Amended, Republic Act No. 7166 And Other Related Election Laws, Providing Funds Therefor and For Other Purposes.”

[9] 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 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." [Emphasis supplied]

[10] See Republic Act No. 9525 entitled “An Act Appropriating The Sum of Eleven Billion Three Hundred One Million Seven Hundred Ninety Thousand Pesos (P11,301,790,000.00) As Supplemental Appropriations For An Automated Election System and For Other Purposes.

[11] “Section 5 of RA No. 8436 does not state that the use of the AES is necessary or is a condition precedent to the conduct of automated elections in 2010. Had the legislators intended the pilot testing to be mandatory, they could have stated the same in a language that is clear and straightforward. xxx. In any event, the pilot automation in the May 10, 2007 elections, as demanded by petitioners, could not be complied with owing to its innate impossibility;” COMELEC’s Comment, pp. 23-24.

[12] The provision pertinently states: “Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”

[14] Art. 3.3 reads pertinently provides:

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.

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 elections. [Emphasis supplied]

[15] Part 5, par. 5.4 (e) of the Instruction to Bidders states:

5.4. A JV of two or more firms as partners shall comply with the following requirements.

xxx

(e) The JV member with a 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.

[16] The pertinent portion of the RFP provides:

The Commission on Elections (COMELEC), through its Bids and Awards Committee (BAC), is currently accepting bids for the lease, with an option to purchase, of an automated election system (AES) that will meet the following needs:

xxx

(6) A complete solutions provider, and not just a vendor, which can provide experienced and effective overall nationwide project management service and total customer support (covering all areas of project implementation including technical support, training, information campaign support, civil and electrical works service, warehousing, deployment, installation and pullout, contingency planning, etc.), under COMELEC supervision and control, to ensure effective and successful implementation of the Project. [Emphasis supplied]

[20] Roman Catholic Apostolic Administrator v. Land Registration Commission, 102 Phil. 625.

[30] Bid Bulletin No. 6, April 27 2009, p. 7; Bid Bulletin No. 10, April 27, 2009, p.3.

[31] Bid Bulletin No. 19, April 27, 2009, p.2.

[32] TSN, Oral Arguments of July 29, 2009, pp. 49-57.

[33] TSN, Oral Arguments of July 29, 2009, pp. 218-221.

[34] See http://pcij.org/stories/2009/election-automation2.html, (last visited September 10, 2009).

[35] Par. 4.5 of the RFP dated March 11, 2009 also states that the Board of Election Inspectors shall digitally sign and encrypt the internal copy of the election return.

[36] TSN, Oral Arguments of July 29, 2009, pp. 461-463

[37]In the Judgment dated March 3, 2009, the German Federal Constitutional Court (GFCC) held that the use of computer-controlled voting machines under the Federal Voting Machines Ordinance was unconstitutional since it does not ensure that only such voting machines are permitted and used which meet the constitutional requirements of the principle of the public nature of elections. Accordingly, the GFCC ruled that the computer-controlled voting machines used in the election of the 16^th German Bundestag did not meet the requirements which the constitution places on the use of electronic voting machines; See Judgment of the Second Senate of 3 March 2009 on the basis of the oral hearing of 28 October 2008, 2 BvC 3/07, 2 BvC 4/07, http://www.bundesverfassungsgericht.de/entscheidungen/rs20090303_2bvc000307en.html, (last visited September 10, 2009)