Linking Andy Bautista's wealth to the 2016 election results is a stretch
Late in the evening of August 6, the video of Patricia Bautista, estranged wife of Commission on Elections (Comelec) Chairman Andres Bautista, was uploaded on Youtube publicly. She claims that her husband “might” have amassed nearly P1 billion worth of ill-gotten wealth. Few hours after, on the front page of the Philippine Daily Inquirer ran the headline “Wife says poll chief has ill-gotten wealth,” shocking the nation.
While it started as another high-profile marital trouble, sometime after, administration-linked bloggers started connecting it with the 2016 national elections, and claiming that Chairman Bautista’s unexplained wealth was proof that the recent elections had been rigged to favor certain candidates for national posts.
Suspended lawyer and now blogger Trixie Angeles highlighted that Patricia’s counsel mentioned that “Chairman Bautista has links with Smartmatic and personally met with them in Washington, DC.” Another blogger RJ Nieto of Thinking Pinoy came up with a little more complex explanation, linking Chairman Bautista to Mar Roxas of the Liberal Party. He explained that Patricia “suspects” that Chairman Bautista received referral fees from Divina Law and that the “former DND Sec. Avelino Nonong Cruz, a staunch Mar Roxas ally, is (or was) a high profile client of Divina Law,” urging the public after to “connect the dots.”
The question of whether Bautista’s alleged undeclared assets are ill-gotten or illegally acquired or simply the fact of his under-declaration in his Statement of Assets, Liabilities, and Net Worth (SALN) are of course matters that need to be explained by him convincingly. As a public official and head of one of the most important and sensitive constitutional agencies, he must be above reproach and suspicion.
Connecting, however, this controversy to the 2016 elections and to the whole Comelec is another matter. Now, as insinuated by Nieto, are there enough dots to connect Bautista’s alleged undeclared assets with the integrity of the elections?
Questions on results include Duterte's votes
We need to start by laying out the facts. First, policy questions relating to elections are not just decided by the Comelec chairman. Unlike the executive department, where matters are solely decided by the President, the Comelec is a collegial body, composed of the chairman and 6 other commissioners, voting equally. All decisions relating to elections – from the choice of election technology to the approval of the voting precincts – need to be decided by at least the majority of the 7 members of the en banc.
From the operations perspective, an automated election is ran by a 5,000-strong Comelec bureaucracy in close coordination with the chosen election technology (Smartmatic for the 2016 elections), implemented by more than 300,000 school teachers, secured by the whole manpower of the Philippine National Police and the armed forces, watched over by election watchers, observers, and watchdogs in every voting precinct, and participated in by more than 50 million voters.
To implement a successful nationwide cheating scheme, both these aspects – policy and execution– must be dealt with. Cheating in an automated election system is not as simple as padding numbers as in the days of manual elections. To have a numerical impact in a national contest, a cheating scheme has to be repeated in a massive scale that it can potentially be messy and too risky because it is easily detectable.
It is also not enough that numbers are increased or decreased, any scheme chosen also has to be defensible in an election protest proceeding that maybe filed by losing candidates. The paper ballots and their scanned copies will always be there and can be revisited in an election protest proceeding. There are also security and transparency features embedded at every level, from voting to canvassing, meant to make fraud or attempts to commit fraud easily discoverable. For example, precinct-level election results are printed in 30 copies and publicly distributed before transmitting them electronically, allowing interested parties to run independent canvassing and tallies parallel to Comelec's.
My point is simple: elections are way too bigger to be rigged just by the chairman or even by the en banc. While they make decisions and sets policy that affects the whole automated election system, it will take a massive web of collusion and conspiracy to hack or compromise its integrity.
There is also no incentive for Smartmatic to compromise its own system. It is a global business operating in many countries. What it earns in the Philippines is but a small part of its global election-related business. From the perspective of business, it does not make sense to compromise its global brand, potential business deals, and established goodwill for just a little more income. Any scandal which would put in question the integrity of its election machines is bound to be disastrous for the company. Elections are trust-based and perception is everything.
In the course of this debate, critics and politicians aligned with the President have claimed that this issue of electoral integrity in relation to Bautista can be surgically confined to closely contested positions, conveniently exempting the President and other elective officials who won overwhelmingly in the last elections.
This is a very poor argument born of a very poor understanding of how automated elections work. This is no longer a manual election, where incidents are severable and fraud can possibly happen in isolation. In an automated election system employing a single type of machine running in a uniform software and produced by the same company, a technological vulnerability in one component indiscriminately affects the whole.
A compromised automated election system can bear only compromised results. In the same way that a poisonous tree bear poisoned fruits, a poisoned automated election system will only yield poisoned results. No lead is too overwhelming or no amount of votes can cure a poisoned election. A poisoned mandate is no mandate.
The chairman is not the Comelec
Even assuming that a Comelec chairman has that power to compromise the elections and make a particular candidate win, that's not Chairman Bautista.
He came to the Commission in 2015, a total stranger to automated elections. Unlike his predecesor Sixto Brillantes Jr, who is one of the pillars of the country’s election law practice, Bautista is an outsider. Not just an outsider in the sense of not rising from the ranks within the Comelec, but someone who is a stranger in the election practice. He was plucked from the Presidential Commission on Good Government (PCGG), the quasi-judicial agency created by former President Corazon Aquino to recover ill-gotten wealth accumulated during the Marcos regime. While he has past stints with the PPCRV, Comelec’s citizens’ arm, he has zero practical experience in the election practice, election management, or in election technology.
Perhaps knowing his own limitations, he unloaded right from the very start a huge chunk of administrative work traditionally assigned to the chairman to either the executive director or his fellow commissioners. The same thing happened in Comelec’s preparation in the last election – Chairman Bautista took a back seat. Apart from presiding regular en banc meetings, where policy directions could have been decided, the only concrete election-related project that Chairman Bautista actively pushed in the last elections was the “mall voting,” which was unceremoniously cancelled at the last minute due to serious questions on its legality and other logistical issues.
Overall, while Chairman Bautista is seen generous in terms of bonuses and employee benefits, to many close observers, he is a poor and detached manager. His very own office was notorious for delays, tattered with factions and in-fighting, and infamous for its regular stream of resignations. Later, the same organizational mayhem spilled to the Commission en banc. He lost control of its steering wheel right at the get-go. Some personalities in the en banc were either too strong for him (or he is too weak for them) – a dysfunction which eventually lead to that controversial June 23, 2016, leaked memorandum from all his 6 commissioners castigating him and calling him out for his “failed leadership.”
It is under this organizational scenario that Baustista has been accused of singlehandedly rigging or influencing the elections or facilitated the victory of some candidates. Many of us immediately dismissed these fanciful allegations not because we could vouch for the integrity of Chairman Bautista, but because of the fact that everyone privy to the preparations know that he neither has the actual power, the influence, or simply the balls to make it happen.
Unfortunately, accusations, regardless of how flimsy or speculative, when peddled in an environment of credulity, may not only be taken as gospel truth, but can easily be twisted by opportunists to advance their political motives.
As much as we are interested in uncovering the truth about Chairman Bautista, we have to be circumspect in dragging the Comelec into the whole mess. Bautista, himself, should have distanced himself from the institution right from the start.
In the end, we must remember that Comelec is way bigger than Chairman Bautista, his wife, and their marital troubles. They will soon fade away in the limelight, forgotten and filed in our consciousness as another marriage gone bad. But institutions like Comelec will still be there, bruised, and limping once again. – Rappler.com
Emil Marañon III is an election lawyer who served as chief of staff of former Comelec Chairman Sixto Brillantes Jr. He completed his LLM in Human Rights, Conflict and Justice at SOAS, University of London, as a Chevening scholar. He is legal consultant in several election protests, including Vice President Leni Robredo's.