Smartmatic suit may doom 2013 elections – AES Watch

The election watchdog Automated Election System Watch (AES Watch) today urged anew Sen. Miriam Defensor-Santiago to convene the Joint Congressional Oversight Committee (JCOC) and look into reports that the Smartmatic company will not be able to correct its voting system’s deficiencies. Failure to correct the PCOS system’s program errors and bugs may doom the coming 2013 mid-term elections.

Prof. Bobby Tuazon, AES Watch co-convener and CenPEG’s director for policy studies, issued the urgent appeal to the JCOC, which oversees the automated election system, after receiving a damning evidence showing the Venezuelan marketing company’s failure to correct the defects of the PCOS machines which were used in the 2010 national elections.

Tuazon said that the U.S.-based Dominion Voting Systems, which supplied the election technology to Smartmatic for the Philippine elections, terminated its 2009 license agreement with the latter on May 23, 2012. As a result, the termination denies Smartmatic access to technical support and assistance as well as to Dominion’s proprietary source code and other “escrowed materials” which are vital to correcting and “enhancing” the PCOS system upon request of Comelec in March this year.

Dominion is the real owner of the election technology – a fact which Smartmatic refused to divulge during the 2010 elections.

The contract termination, Tuazon said, explains why Smartmatic can no longer correct the PCOS errors and defects that are causing erratic counting, among other problems.

Comelec, headed by Chairman Sixto Brillantes, Jr., said it will not pay Smartmatic for the purchase of its 60,000 PCOS voting machines unless the system is corrected – or “enhanced,” as the poll body would put it. Comelec bought the machines last March 30 subject to the said condition and other terms.

Dominion did not release the vital materials because Smartmatic refused to accede to the higher fees demanded by the U.S. election technology manufacturer.

In a subsequent suit it filed against Dominion last Sept. 11 before the Delaware court of chancery in the U.S., Smartmatic International accused the former with unilaterally repudiating the 2009 license agreement and undermining its election projects in Mongolia and Puerto Rico.

In the complaint – a copy of which was obtained by CenPEG – Smartmatic said Dominion’s alleged “breach of contract and tortious interference in Smartmatic’s business” has caused the Venezuelan company immediate and irreparable harm” and imperils its “standing in the marketplace.”

Smartmatic also admitted system errors of its technology in the compact flash card (CFC) fiasco during the May 3, 2010 final testing and sealing (FTS) or a week before the May 2010 elections in the Philippines. It blamed Dominion’s software for failing to correctly read and record the paper ballots. The FTS failure nearly stopped the May 10, 2010 elections with a Comelec contingency plan to revert to manual system. Smartmatic is also demanding damages from Dominion for incurring huge financial losses and for suffering “reputational harm” with many voters casting doubt on the credibility of the elections.

“It nearly affected the 2010 Philippine elections,” Smartmatic said in a statement last Sept. 18.

Likewise, the Venezuelan company revealed that Dominion breached the 2009 license agreement by failing to deliver “fully functional technology” for the 2010 Philippine elections, and failing to place in escrow the required source code, hardware design, and manufacturing data.

Dr. Pablo Manalastas, AES Watch co-convener and CenPEG Fellow for IT, said this constitutes an explicit admission by Smartmatic of the “failure of its system to function fully, resulting in glaring errors, most of which were documented” by CenPEG and AES Watch in 2010.

“Does Dominion’s failure automatically imply Smartmatic’s failure to do the escrow required by the election law (RA 9369),” Manalastas added. “Do these actions by Smartmatic constitute a criminal intent to cheat, a criminal intent to avoid its contractual obligations with Comelec and with the Filipino people?” the IT programmer guru asked.

Tuazon said the JCOC has been asked several times from as early as June 2010 by AES Watch to convene immediately in order to assess the May 2010 elections and propose an alternative automation technology for the next election.

The JCOC members, he said, should probe into why Smartmatic had been saying persistently that its system was 100% perfect contrary to the scientific studies of Filipino IT experts and scholars. In a July 2012 mock elections administered by the House suffrage and electoral committee, Smartmatic claimed a perfect counting accuracy (the law mandates 99.9995% accuracy). But subsequent reviews by AES Watch’s IT resource persons revealed an average of 97% accuracy rating thus exposing the system’s erratic counting, with millions of votes being missed out from counting in an actual election.

Smartmatic is now vulnerable to being charged with perjury for lying through its teeth, Tuazon said. “What other truths is Smartmatic hiding from Filipino voters?” he said.

The Philippines is hemmed in by a financial war between Smartmatic and Dominion, Tuazon. But in the end, the Philippines’ electoral process in 2013 will be put in jeopardy, he added.

Comprising 40 groups and NGOs, the citizens election watch group AES Watch monitored the May 2010 elections and is continuing its documentation in preparation for the May 2013 elections. Last April, individual AES Watch members led by its President Emeritus, former Vice President Teofisto Guingona, Jr. filed a TRO case against Comelec and Smartmatic before the Supreme Court for the illegal purchase of PCOS machines for use in the next elections.