Pilot testing the automated polls – is it a condition precedent?

One potential controversy regarding automated elections relates to the timetable envisioned in the law.  In particular, the idea that there should be some kind of “pilot testing” appears to have been implicit if not explicit in the legislation.  How should such pilot testing be conducted?  Can pilot testing be conducted simultaneously with nationwide automation?  Can “public clamor” for automation override legal and constitutional considerations?

Background of the legislation

Two laws govern automated elections, RA 8436, approved in December 1997, and RA 9369, approved in January 2007.  The latter law amended RA 8436 after a lapse of nine years when attempts to automate the elections did not come to fruition, other than the elections in the autonomous regions in Mindanao in August 2008.  Automation is referred to as the System in RA 8436, and as the Automated Election System (AES) in RA 9369.

The timetable for automation and provisions for “pilot testing”

Sec. 6 of RA 8436 read as follows:

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, herein referred to as the System, for the process of voting, counting of votes and canvassing/consolidation of results of the national and local elections: Provided, however, That for the May 11, 1998 elections, the System shall be applicable in all areas within the country only for the positions of president, vice-president, senators and parties, organizations or coalitions participating under the party-list system.

…  If, in spite of its diligent efforts to implement this mandate in the exercise of this authority, it becomes evident by February 9, 1998 that the Commission cannot fully implement the automated election system for national positions in the May 11, 1998 elections, the elections for both national and local positions shall be done manually except in the Autonomous Region in Muslim Mindanao (ARMM) where the automated election system shall be used for all positions.”

The import of RA 8436 was to establish the traditional manual system of elections as the “backup” system.  There was an intention then that a partial automated system (for national candidates only) would be implemented in May, 1998, but that subsequent elections would be automated nationwide.

Sec. 6 of RA 8436 has been amended by RA 9369 so that it is now re-numbered as Sec. 5 and it reads 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.”

Statutory construction of the new Sec. 5 of RA 8436, as amended by RA 9369

It is clear that the law does not bar manual elections, but it does require nationwide automated elections once certain requirements are met.  It appears nonetheless that there remains some ambiguity on how fast nationwide automation can be implemented.

One interpretation of the law is that after January 2007, the pilot election requirement was applicable to three regions (Luzon, Visayas, and Mindanao), but only Mindanao met the requirement with its elections in 2008.  Thus, there must be pilot elections in at least two highly urbanized cities and two provinces each in Luzon and Visayas in 2010.  If the requirement is met in these two latter regions, then elections are mandated to be automated nationwide in 2013 onward. This appears to be an interpretation that would be favored by those who want to “go slow” in implementing automation.

Another interpretation is to see the words “shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao” as giving authority for Comelec to implement automation nationwide in May 2010.  This interpretation focuses on “at least” and ignores the last sentence of Sec. 5 which states that “(i)n succeeding regular national or local elections, the AES shall be implemented nationwide.”  In effect the pilot testing in Luzon and Visayas will be conducted as part of a nationwide automated election.  This interpretation seems to undermine the concept of pilot testing which presupposes a prior and not simultaneous event, and one that does not cover the entire nation or region.  But it would be favored by those who want to “go fast” in implementing automation.

A third interpretation is that the pilot testing requirement was already met by the May 2008 elections in Mindanao, because it was an “impossibility” to conduct pilot elections in May 2007 in Luzon and Visayas (RA 9369 was approved only in January 2007).  Thus, Comelec is mandated to implement a nationwide automated election in 2010.  From public pronouncements, it appears that this interpretation is favored by Comelec Chair Jose Melo.  But this seems a strained interpretation of the pilot testing requirement which clearly mandates such in Luzon and Visayas, as well as in Mindanao.

Resolving the issue

Perhaps the key to resolving the issue of statutory construction is to consider the presence of the word “succeeding” in the last sentence of Sec. 5, in relation to the mandatory directive (“shall be implemented nationwide”).  Facially, it means that automation in any election after January 2007 can be partial but not complete, but pilot testing is a condition precedent to automation nationwide because of the presence of the word “succeeding” in the last sentence of Sec. 5.

Given the condition-precedent nature of the pilot elections requirement, it would seem that the Comelec would commit grave abuse of discretion if it were willy-nilly to automate the 2010 election nationwide.

It is nonetheless difficult to forecast how the Supreme Court will rule on this issue, which is a question of law only.  But it may be noted that while there are no hard-and-fast rules on statutory construction, Arts. 9 and 10 of the Civil Code control.  Art. 9 states: “No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws.” Art. 10 states: “In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail.”

The pronouncements of legislators also carry some weight.  For example, as reported by a major newspaper, Sen. Francis Escudero and Rep. Pablo Garcia have pointed out the requirement under Republic Act 9369, or the poll automation law, to conduct pilot testing of automated poll system in key areas of the country.  Presumably, “key areas” mean Luzon, Visayas, and Mindanao, and not just Mindanao.  It appears that these legislators hold the view that the pilot testing requirement has not yet been met.

It is also of interest to note that both upper and lower house versions of RA 9369 (i.e. the Senate and House bills) envisaged a first stage of partial implementation that would occur before full nationwide automation would take place.  For example, Senate Bill 2231 envisaged a partial implementation of the AES in 2007, that is, limited to six pilot provinces and six highly urbanized cities in Luzon, the Visayas and Mindanao to be determined by the Comelec (see the report of CongressWatch on the Senate Bill 2231).

The House version (House Bill 5352) also provided for pilot testing in areas other than Mindanao.  As reported in a press release by the House, the House intended that the automation of election would be implemented in staggered mode starting in the 2007 mid-term elections, with an initial implementation by 2007 throughout the National Capital Region, Autonomous Region in Muslim Mindanao, and in at least three regions as determined by the Commission.

It may be argued that the appropriation under RA 9525 of P11.3 billion to fund the automated elections has amended or repealed the pilot election requirement of RA 9369.  This is not the case.  RA 9525 clearly states that the funds are for use “in strict compliance with the Constitution, the provisions of Republic Act No. 9369 and other election laws incorporated in said Act.”  In other words, the appropriation has even emphasized the need for strict compliance with existing law.

The matter of excuse and the Due Process clause

Black’s defines “condition precedent” as an act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises.  However, the legal dictionary also explains that “If the condition does not occur and is not excused, the promised performance need not be rendered.”  It is clear from the accepted legal definition that pilot testing is a condition precedent.  The remaining question then is whether the absence of pilot testing in Luzon and Visayas can be excused.  And if so, how?  It is submitted that in a sense Comelec is the promisor of automated elections under the law, and that it would violate due process if it were to decide, on its own, that the absence of the legally-mandated pilot testing has been excused.  There are authorities who consider that the  essence of due process is that a party should not be a judge of his own cause (see John V. Orth, Due Process of Law, University of Kansas Press, 2003).

Conclusion

It is submitted that implementing automated elections nationwide in 2010 would violate the Due Process clause.  The Comelec has no jurisdiction to decide on its own that the absence of pilot testing in Luzon and Visayas is “excused.”  Under existing law, that is a matter for the Legislative to decide.  In short, the Comelec has neither the duty nor the discretion to conduct nationwide automation of elections in 2010, regardless of the so-called “public clamor” for such automation.

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