Precondition or non-compliance

While the May 13 elections and its aftermath hugged the headlines of the mainstream press and much of the attention of the general public, those who are committed to seeking peaceful avenues for resolving armed conflict in the country have been quietly meeting and crafting their positions on the current serious and prolonged impasse in peace talks between the Philippine government (GPH) and the National Democratic Front of the Philippines (NDFP).

Peace advocates and church leaders have expressed a range of negative reactions - from “sadness” and “concern” to “disappointment” and “outrage” - to the GPH announcement that talks with the NDFP have virtually collapsed, and that they are considering taking a "new approach" to the peace process.

In response to GPH peace panel head Atty. Alex Padilla’s statement that the GPH “cannot wait forever for the other side if they continually refuse to go back to the negotiating table without preconditions ... such as the release of their detained consultants”, the Philippine Ecumenical Peace Platform (PEPP) has this to say: “Our appeal for government to release the detained NDFP consultants is not in support of any ‘pre-condition’ but ‘on the basis of humanitarian and other practical reasons’ to enable the formal talks to resume as articulated in the Oslo Joint Statement of 21 February 2011 by both Parties.”

The PEPP has been tirelessly working with both sides to bring about the release from GPH detention of at least three of the NDFP “peace consultants”.  This is the only remaining obstacle to the resumption of formal peace negotiations after the first round of successful talks held in February 2011under the aegis of the new Aquino government. Contrary to the GPH position that the NDFP’s supposed insistence on such releases constitutes a “precondition”, the PEPP views the matter simply as compliance by the GPH to what it had agreed to.

Another faith-based peace advocates network, the Pilgrims for Peace straightforwardly asked, “(I)f the GPH will not honor the agreements that they have made thus far in peace talks with the NDFP, how can they be trusted to honor subsequent major  agreements, especially in systemic reforms needed to build a just and lasting peace?”
Compliance with agreements is not only a reasonable and just demand, it is imperative to any negotiations, be it political, financial, e.g. contracts, or even personal, e.g. marriage.

Pilgrims underscores the fact that the second substantive agenda, socio-economic reforms (SER), was supposed to have been tackled just months after the 2011 formal peace talks in accord with, in Mr. Padilla’s own words, a “time-bound” and “agenda-bound” agreement that both sides had committed to.  This is patently contrary to allegations by Mr. Padilla that the NDFP had been dragging its feet on negotiating the SER.

The National Council of Churches in the Philippines (NCCP) took exception to Mr. Padilla’s statement that “nothing happened in the last 27 years”, saying that he “fails to take into account achievements of the peace negotiations”.  The first substantive agenda of the 1992 The Hague Joint Declaration has already resulted in the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL).

According to Pilgrims, “This landmark agreement includes a Joint Monitoring Committee to address human rights violations of either party; however, the CARHRIHL Joint Monitoring Committee (JMC) has not been convening because of the Philippine government’s insistence that it can only meet when there are on-going formal talks, contrary to the provisions of CARHRIHL.”

This belies the statement of OPAPP Secretary Deles and Mr. Padilla that the peace negotiations had not had any impact “on the ground”.  Both sides had already filed hundreds of complaints of violations and human rights victims had done the same but investigations are impeded by GPH refusal for the JMC to meet and properly address the complaints jointly so that these can be acted upon.

In effect, the CARHRIHL’s implementation, for the good of the communities affected by the armed conflict as well as other victims of human rights violations, is being held hostage by the twists and turns of the peace talks, including unfortunately, prolonged deadlocks.

The above statements show that the peace advocates and church leaders are able to see through the GPH attempt to blame the NDFP for the delays, impasses and eventual breakdown of the talks.  They can see how the GPH is confusing the issues and twisting the truth when it misrepresents the NDFP's demand for compliance with agreements as preconditions to the holding of talks.  Instead, they perceive the GPH as the one presenting preconditions and lacking the political will to comply with agreements it has signed and pursue the negotiations toward ending the armed conflict by addressing and resolving its root causes.

In fact, it has been the GPH that has been setting preconditions to the resumption of formal talks, mainly that of an indefinite and prolonged ceasefire for the duration of the negotiations. This in itself is a violation of the Hague Joint Declaration which says that "no precondition shall be made to negate the inherent character and purpose of the peace negotiations”.  The NDFP has always taken the position that a ceasefire should be the result of negotiations and not a precondition to it, and previous GPH panels before Mr. Padilla's have accepted this position. Only in this way have the peace negotiations been able to move forward in the past.

What the GPH has called preconditions by the NDFP (release of detained consultants, reconstitution of JASIG, investigation of extrajudicial killings, etc) are in fact commitments or obligations by the GPH as per agreements that it needs to comply with. Or, in the case of the “special track”, Mr. Padilla mislabels as preconditions what are clearly proposals for discussion and negotiation (e.g.  discontinuing such anti-people GPH programs such as the Conditional Cash Transfer, PAMANA and Oplan Bayanihan).

In this light, Pilgrims for Peace Co-Chairperson, Bsp. Deogracias Iñiguez astutely comments, “As (peace) talks tried to speak to the root causes of the armed conflict, we observe that talks about these reforms will go against the interests of those who want to maintain the status quo where only foreign corporations and the local elite prosper while the majority of people languish in poverty ... The government’s stand on economic sovereignty may more correctly be described as the government reality of economic dependence.”

As to the “new approach” the GPH is developing in place of the GPH-NDFP peace negotiations, it must be made clear that this so-called approach rejects and departs from The Hague Joint Declaration, the common framework adopted by both sides since September 1992 that has held the negotiations in good stead resulting in the inking of at least 10 major bilateral agreements including the Hague Joint Declaration, Joint Agreement on Safety and Immunity Guarantees (JASIG) and the CARHRIHL.

GPH statements say it will be a localized approach (ergo not national) i.e. local peace talks, peace zones, amnesty/surrender and rehabilitation/socio-economic projects.  These can only give at most palliatives to conflict in localities but are not intended to address the roots of the armed conflict, which are national in scope and essence including pervasive landlessness, the surrender of national sovereignty, the plunder and degradation of natural resources and the environment, joblessness and low wages, hunger and poverty.

The GPH "new approach", for all intents and purposes, is really not a new path to peace but yet another rehash of the failed and worn-out counterinsurgency war against the CPP/NPA/NDFP. #

Published in Business World
24-25 May 2013

Winner - AES/Smartmatic; Loser - Filipino people

The election into office of misfits, rascals, the poorly qualified and members of entrenched political dynasties may not be the worst result of the recently concluded midterm elections.  More pernicious and fatal to our democratic processes, or the appearance thereof, is the virtual  enthronement, if the Commission on Elections (COMELEC) is to have its way, of the current automated election system (AES) designed and operationalized by a foreign multinational company, SMARTMATIC, to  a seat of honor in running and controlling Philippine elections.

It is no surprise that COMELEC Chairman Brillantes’ first post-election statement was a glowing appraisal of the AES’ success in supposedly speeding and cleaning up the counting and canvassing of votes, as if slow counts were the main or only source of the widespread fraud that has continued to plague Philippine elections.   Cast into the shadows were the people's patience and determination to hurdle the travails brought about by the PCOS breakdowns and other related problems.

Unfortunately for Mr. Brillantes, his premature announcement of smooth-sailing automated elections plus his hype that a speedy count eliminates the possibility of fraud is backfiring: the count is stuck at 70% and close to 12 million votes is still unaccounted for three days after the closing of the polls.

This delay is being attributed to malfunctioning PCOS machines and weak or non-existent telecommunications signals both of which problems were earlier pooh-poohed by the COMELEC as minor and already being addressed, if not resolved.  But even if the remaining 30% of votes are eventually counted, these will be held suspect and indelibly tainted with doubt.

COMELEC obscures the fact that it has not been able to rectify the sins of omission and commission with regard to the AES dating back to the 2010 presidential polls.  These had caused uproar, not just from losing candidates, but from the Filipino InfoTech (IT) community and various election watchdogs.

COMELEC instead bought the lemon of a system from its foreign vendor SMARTMATIC.   The two entities colluded in disregarding, trifling with and dispensing with the technical requirements, including security features, mandated by law to ensure that the vote count accurately reflected first, bona fide ballots and second, correct election returns.

Not only this, COMELEC/SMARTMATIC even aggravated the situation further as we shall illustrate.

For the 2010 elections, there already was the failure to have an independent review of the source code (the human-readable instructions that would be then programmed into machine language and installed into the PCOS machine) and to determine whether the source code used by all 76,000 PCOS machines was the same one stored at the Bangko Sentral ng Pilipinas.

For the 2013 elections, the new source code that was supposed to incorporate corrections and improvements in the AES drawing from the 2010 experience, was not in the hands of the COMELEC until Election Day itself due to a legal dispute between SMARTMATIC and Dominion, the software provider.

Three years after the 2010 polls, COMELEC again failed to give political parties and other interested groups the chance to do this crucial independent review only doing so at the last minute when it was impossible to do a proper review because of time and other constraints.

In 2010, there was no certification of the consolidating and canvassing system, which starts from the PCOS transmission of results to the municipal and provincial canvassing and from there to the national canvassing.  In the actual canvassing, the AES came up with grossly erroneous and inconsistent figures for the total number of registered voters. This was eventually corrected and SMARTMATIC was allowed to get away with explanations that didn’t wash and were obvious cop-outs.

This time around, we have the case of bloated results reported from the supposed parallel quick count conducted by the PPCRV-KBP using data from the COMELEC transparency (sic) server during the early hours of the transmission of votes.  More than 10 million votes were tallied from only 1,418 precincts whereas each precinct only has 1000 voters at most.

SMARTMATIC eventually came in to fix the problem supposedly in the “script” that added the results incorrectly.  But as Kontradaya convenor Dr. Ganni Tapang pointed out, “The whole episode shows how SMARTMATIC (or anyone for that matter) can change the codes that tally the results at will (underscoring ours) -- even during Election Day. Without the benefit of public disclosure of the AES source code and thorough pre-testing, these statistically wrong results put the whole canvassing of votes into serious question. “

Moreover, the PPCRV-KBP count was exposed as completely dependent on the COMELEC count and thus not the independent parallel and safeguard count it is claimed to be.

The discovery of a supposedly unused compact flash (CF) card with recorded votes in a precinct for overseas voting in Hong Kong draws attention to the problem of tampered cf cards.  How many such errors need to surface before COMELEC and the Aquino administration admit to serious problems with the AES?

What guarantees are there that no other erroneous or even false figures -- unobtrusive and therefore largely undetectable -- have been generated by the pre-programmed machines and are now incorporated into the official results?  How are those results to be trusted as valid and true?

The cavalier attitude and kid gloves treatment by COMELEC and both the Aquino and Arroyo administrations towards the design flaws, gross shortcomings and violations of legal and technical requirements by SMARTMATIC is not mere negligence or laxity on their part.

It betrays a mindset of shameless subservience to foreign technology coupled with the lack of trust in the Filipinos’ capability to do the automation on our own terms.  It reveals an utter disregard for the people's sovereign will and right to exercise suffrage without foreign intervention, much less dependence on it.  It reflects the preponderant objective of covering up their gross incompetence as well as the likely corrupt transactions undergirding the purchase of the AES from SMARTMATIC for close to two billion pesos.

 In all of the COMELEC's statements and actuations -- and for that matter the ruling regime's -- the contrast in their attitude towards foreign technology on one hand and the people on the other becomes starkly clear.   It is not the people's will and determination that make for successful elections.  Foreign-designed and operated software and machines, no matter that they are inadequately tested, veiled in secrecy and in fact suffer breakdowns, are hailed as the keys to success, serving the aim of  perpetuating the system and the ruling elite.

The people, from this standpoint, are the ones treated as mere instruments, not as the real sovereigns wielding their power to choose their leaders. #

Published in Business World
17-18 May 2013

AES unmasked

The mystique of technology, especially high tech or cutting-edge technology, as the silver bullet that would slay the monster of the notoriously dirty, violent and fraud-ridden elections in the Philippine setting has lost much of its allure after the 2010 presidential polls.

While the intricacies of the AES are unfathomable to most everyone except the information technology (IT) experts, the local IT community and election watchdog groups such as AESWATCH and Kontradaya have over time effectively unmasked the flaws, infirmities and errors in its design and operationalization to sufficiently cast doubt on the integrity of the Automated Election System (AES) and therefore the veracity and credibility of the election results.

The multi-billion peso AES designed and run by foreign companies and recently bought - lock, stock and barrel - by the COMELEC does not address the major, much less fundamental,  problems which have bedevilled the electoral system but in fact has compounded them.

Any hope that the automated elections would at least reflect the actual voting that takes place has grown dimmer and dimmer.  Many voices, including that of the principal author of the law on automation of elections, are calling for a parallel manual count of the votes cast to act as a tried-and-tested countercheck and at the same time provide a paper trail for any post-elections audit and election protests.

Two key objections have been raised.  At the forefront is the fact that the source code or the human-readable instructions to the Precinct Count Optical Scan (PCOS) machines and the Canvassing and Consolidating Service (CCS) have not been subjected to review by political parties and independent watchdog groups in the country as mandated by law.

The recent offer of COMELEC and SMARTMATIC, the seller of the PCOS machines and CCS system, to finally open the source code to review 5 days before election day, is not only deceptive, it is laughable, since a respectable review would take at least 6 months to accomplish.  Latest news is that COMELEC will only be able to actually possess the source code on May 13, or only on Election Day itself.

In plain language, this means that the instructions to the machines that will scan, read and add up the votes at the precinct level have not been scrutinized and verified by interested parties or independent groups because these were not made available to them by COMELEC.  Neither have the instructions for examining and consolidating the election returns (in computerized or digital form) as they are sent to the municipal, provincial and national canvassing centers been reviewed.

Without this review, the electorate and the people are being asked to trust blindly in the COMELEC in the same manner that COMELEC blindly and recklessly trusts SMARTMATIC; i.e. that there will be no errors -- intended or unintended, human- or machine-made -- of such magnitude as to render the outcome doubtful, controversial and lacking in credibility.  COMELEC’s promises, assurances and claims notwithstanding, neither the poll body nor its foreign partner are in a position to elicit such blind faith.

For what used to be an open or public and verifiable process of tallying the votes, adding them up and forwarding these to the canvassing centers at different levels has now been transformed into an invisible, unexamined and unverifiable process that has rendered election poll watchers inutile, pre-proclamation protests impossible and post-election audits as laborious and as time-consuming as before.

The AES is vulnerable not only to glitches but to wholesale manipulation or automated dagdag-bawas.  Spurious results are then almost impossible to uncover, trace and correct before candidates are proclaimed “winners”.

This situation severely, even fatally, undermines the integrity of the automated elections. The lack of transparency in the way votes will be recorded, tallied, transmitted then canvassed renders the exercise completely undemocratic.

Apart from the problems with the source code however is the more fundamental anomaly of the COMELEC's effective surrender of its mandate of controlling, supervising and safeguarding the entire electoral process by entrusting, through the AES, the counting and canvassing of votes to a foreign business entity which has neither the obligation nor the interest to see to it that the count is a precise and accurate reflection of voter intent.

This original sin has been exposed as a consequence of the legal dispute between Smartmatic, the owner of the PCOS machines, and Dominion Voting System, the owner of the software.  COMELEC could not compel Dominion to turn over the source code (to which the latter had proprietary claims) to the poll body.  Neither could it compel SLI Global Solutions, the foreign entity that COMELEC paid to review the source code, to do the same.  The end result is that COMELEC did not have the source code the whole time that it was preparing for the 2013 elections!

Moreover, the entire time that the source code has been in the hands of these foreign entities and without the verification conducted by Philippine entities, whether this be COMELEC, political parties, election watchdogs and other interested parties, it is rendered vulnerable to undetected tampering.

Clearly, the sacred duty of government to conduct the supposed democratic exercise of elections in order to allow the expression of the people’s sovereign will has been irreparably compromised.

The way COMELEC has handled the situation and in the process circumvented the law, starting from the decision to buy the AES used in 2010 from Smartmatic when the software is under dispute; how it dissembled regarding the status of the source code; its refusal to acknowledge the system’s flaws and vulnerabilities; how it failed to act on the concrete problems in the AES that cropped up and were reported and identified in the 2010 elections and  attacked instead the motives and the competence of critics including IT experts –  all these are danger signals that the AES will be foisted upon the people as a fait accompli in the 2013 and even for the 2016 elections through the collusion of COMELEC officials, SMARTMATIC and all the way up to Malacañang.  (The latter has been noticeably silent about the entire controversy.)

A more insidious line has even been used by COMELEC Chair Sixto Brillantes to defend the indefensible. He cites the 2010 elections wherein the source code was also not subjected to independent review by Filipino IT experts but elections, he says, took place according to plan.  He claims the 2010 elections outcome was widely perceived to be credible.  Otherwise, Mr. Brillantes testily asks, are the AES critics questioning the victory of current President Benigno “Noynoy” Aquino III?

The only reasonable answer to this empty rhetorical question is that the use of the AES, with all its questionable and unacceptable features, makes Mr. Aquino’s victory unverifiable.  That Mr. Aquino’s win was widely perceived to be a rejection of the corrupt and mendacious Arroyo regime, and as consistent with pre-election surveys, had more to do with the acceptability of the results to the public rather than the credibility of the automated polls itself.

The elections slated for May 13 will proceed by hook or by crook despite the outcry against the AES. COMELEC resists any call for a parallel manual count.  The conventional wisdom being peddled is that what is important is that the results be “credible” from the point of view of the stakeholders-who-matter -- the dominant political parties/candidates and their backers, big business, corporate mass media together with other institutional moulders of public opinion and the shadowy but ultimately influential foreign political and economic interests.

The work of truly independent election watchdogs and those who are committed to genuine people’s democracy continues after the May 13 polls.  Our critique and opposition should lead to the junking of the AES and its replacement with an automated system that would truly reflect the vote, and as far as possible -- given the built-in limits of an elite-ruled society and political system -- the sovereign will of the Filipino people. #

Published in Business World
10-11 May 2013