Thinking about the pilot testing requirement for automated elections

Quick summary

The concept of pilot testing is that of a “test drive,” a means of checking that something about to be delivered performs as intended.  A prudent buyer may stipulate with the seller that the thing should be tested on a certain date, after which the buyer would take delivery.  Obviously, a proper delivery is contingent on the buyer being satisfied with the test drive.

Some parties, including the Comelec itself, are apparently so keen on taking immediate delivery of the automated election system that they have forgotten the concept of a pilot test.  They believe that it is proper for nationwide automation to be effected in 2010, on the theory that the law already mandates such nationwide automation.  In short, they believe that the so-called pilot test requirement as given in existing law may be dispensed with.

What follows is an analysis, more or less extended, of the legal issues involved.  Central to the resolution of the issue is a consideration of how RA 9369 has amended RA 8346, including partial versus full nationwide automation once Congress has played its oversight role.  It is a revised and updated version of an earlier post on this blog.

The issue before the Supreme Court

A petition has been filed with the Supreme Court by a group of citizens headed by Atty. Harry Roque seeking to enjoin the Comelec from proceeding with full nationwide automation of the 2010 elections. This petition has been set for oral argument on July 29, 2009, and among the issues raised is the matter of how to implement the requirement to “pilot test” the automated election system.

There is no dispute that there should be some kind of pilot testing, which involves the use of an automated system in selected parts of the country.  But when and how should the testing be conducted?  Can it be conducted simultaneously with nationwide automation? Should public clamor for automation be a consideration in deciding the issue?

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 provisions for “pilot testing”

The timetable for pilot testing is governed by the (amended) Sec. 5 of RA 8436 which 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.  But it appears that there is 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 still 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 interprets the last sentence of Sec. 5 which states that “(i)n succeeding regular national or local elections, the AES shall be implemented nationwide” as an absolute mandate for 2010 (the word “succeeding” taken to mean that which follows the May 2007 elections).  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 (given the presence of the word “each” ahead of “in Luzon, Visayas, and Mindanao”).

Resolving the issue of statutory construction

Arts. 9 and 10 of the Civil Code guide the judicial review of any controversy as to the meaning of an existing law.  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.  Some consideration should also be given to how the amendments of the law on automated elections have evolved, particularly with respect to provisions that have a bearing on the timetable for partial versus full nationwide automation.

Pilot testing in certain key areas

The Legislative appears to have intended that the automated system should be (pilot) tested in certain key areas.  For example, Sen. Francis Escudero and Rep. Pablo Garcia have pointed out this out, and they consider that the “key areas” mean Luzon, Visayas, and Mindanao, and not just Mindanao.  These legislators hold the view that the pilot testing requirement has not yet been met.

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). The House version (House Bill 5352) also provided for pilot testing in areas other than Mindanao.  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.

The meaning of “succeeding” in the last sentence of Sec. 5 of RA 8436 as amended

Perhaps the key to resolving the issue 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”).  Does “succeeding elections” mean the 2010 elections?  Or does it refer to the elections following the fulfillment of the pilot test requirement?

It is submitted that “succeeding” refers to elections that follow one where the pilot testing requirement has been met.  Any other interpretation of “succeeding” would effectively deny the very idea of a pilot test and necessarily the evaluation of the results of such a pilot test.  Interpreting “succeeding” to mean only the 2010 elections would lead to an absurd result that full nationwide automation should be implemented in 2010 regardless of the outcome of the partial automation provided for in Sec. 5.  It has already been mentioned that the only partial automation that has been conducted thus far is that of the Mindanao elections in 2008.

Another means of resolving the issue of the meaning of the word “succeeding” in Sec. 5 is to consider the whole of RA 9369 in relation to that of RA 8436, and how the various safeguards enacted in the former may relate to the issue.  In this context, an important element is the expanded provision on Congressional oversight given in Sec. 27 of RA 9369, which amends the same-numbered section in RA 8436.  Sec. 27 includes the following responsibilities of Congress when it conducts a mandatory review of RA 8436 (as amended) every twelve months from the date of the last regular national or local election:  (1) whether to recommend partial or full nationwide automation for the next elections; and (2) whether to discard/recommend any particular technology of automation.

Accordingly, it is further submitted that “succeeding” can also refer to an election later than 2013 so long as the results of the pilot testing have not yet been judged adequate.  After all, why should one conduct a pilot test without an evaluation that properly determines the next step of nationwide automation?  And who should make such proper determination?  Certainly it is not Comelec, since the only entity with such powers is the Legislative (Art. V, Sec. 2, Constitution), and this is provided for expressly and particularly in the  oversight role of Congress given in Sec. 27 of RA 8436 as amended.  The Constitution mandates that “[t]he Congress shall provide a system for securing the secrecy and sanctity of the ballot…” (Art. V, Sec. 2).

The matter of excuse and the Due Process clause

The foregoing discussion suggests that the pilot test requirement in Sec. 5 is a condition precedent to nationwide automation.  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.”  A proper 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, but 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).

It is arguable that the Due Process clause speaks only of “life, liberty, and property,” and that it does not cover the process that secures the secrecy and sanctity of the ballot (Art. V, Sec. 2, Constitution).  However, it is submitted that the matter is within the penumbra of substantive due process, which requires that the governmental “means employed” (such as an automated election system) be reasonably necessary for the accomplishment of the purpose (of legislation), and not unduly oppressive on individuals (see Nachura, Reviewer in Political Law, 83).  Besides, “liberty” has been held to include the right of the citizen to be free to use his faculties in all lawful ways (Rubi v Provincial Board of Mindoro), and one of such faculties is his ability to vote which necessarily includes the right to have such vote counted. Absent the fulfillment of the pilot test requirement, the state in effect declines to give the voter the constitutional guarantee of the “sanctity” of the ballot.

But can the appropriation of P11.3 billion be taken as authority to conduct nationwide automation?

The answer is in the negative.  RA 9525 appropriated P11.3 billion to fund the automated elections but it also 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 laws and the Constitution.

Conclusion

It is submitted that implementing automated elections nationwide in 2010 would violate the Due Process clause as well as the provisions of Sec. 5 of RA 8436 as amended.  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 and the Constitution, 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.

That there may be public clamor for automated election is perhaps an element to be considered in interpreting the law, but those who argue for a “sure but slow” approach also emphasize the need for a standard of due care in implementing the pilot test requirement.  Such standard of care is within the ambit of the Due Process clause, and is moreover a power and duty of Congress under Art. V, Sec. 2 of the Constitution.

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21 thoughts on “Thinking about the pilot testing requirement for automated elections

  1. Google Joint Congressional Oversight Committee on Election Automation 2008 ARMM and you will find many links. They have been active throughout this process, most recently calling a hearing with Comelec and Smartmatic-TIM. But for Sen Escudero, majority of the members of this committee gave blessings to both the 2008 ARMM pilot and the planned 2010 full automation, an affirmation that Comelec is fulfilling the intend of the law as written. This coming most specially from the principal authors of RA 9369, Sen, Gordon and Rep. Loscin. Coupled that with the approval of the budgets in both instances, firms up their approval of both implementation. Is this enough due process?

    Excuse me, I never said that OMR is not the same as PCOS. What I said was that Optical Mark Recognition (OMR) is the technology and Precinct Count Optical Scan (PCOS) and Counting Center Optical Scan (CCOS) are procedural and systematic implementations of the OMR technology. Capice?

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    1. Mr. Tangama, whose identity I do not know. (You can find my bio easily enough on the web.) I’m happy to entertain your questions, etc., within reason, of course.

      I’ve looked and looked for a report by this Oversight Committee evaluating the automation technologies based on a report by the Advisory Council. I see a draft report at the CenPeg site of this Advisory Council dated Oct. 2008, but nothing more. Sec. 33, RA 8436 as amended, mandates (the law says “shall”) this Oversight Committee to make the recommendations on whether to go full or partial automation, and “to Congress, in session assembled.”

      I haven’t seen this report by the Committee. One Senator and one Congressman is not the Committee. Besides, it is “Congress assembled” that is then given the power to do what it should with that Committee’s report.

      RA 9525 on the automation budget says the funds are to be used in “strict compliance with the law.”

      But if you know so much, please educate me properly that Congress did its oversight duty. If you have a copy or a link to the Oversight Committee Report, and to the proceedings of what the Congress, in assembled session, did with that report, please let me know.

      What is “enough” Due Process? I don’t know. The Supreme Court is the judge of that. So, please don’t ask me. I tread a fine line as it is since in a sense the matter is sub judice, though I believe the Court will give me some leeway, again within reason, because of “transcendental importance.”

      The issue is not a black-and-white one where you see the Roque petitioners as having hidden agendas. More sober-minded folk just want to ask how the safeguards, and there are many in RA 9369, are being or to be implemented.

      As a citizen, I have some right to demand of public officials that they comply with the law, even if the process (Rule 65) is cumbersome. That is just the working out of the Due Process rule, as well as of the Supreme Court’s power and duty of Judicial Review.

      I think the Supreme Court will defer to experts on what constitutes “technology” – the word used in RA 8436, Sec. 33. Much depends on the wording of that Committee report that I haven’t seen.

      But I never said that you said that OMR is the same as PCOS. The alphabet soup here floors me. So I won’t take your “Capice?” nonsense. It is patronizing and almost an ad hominem, but for now I can let it pass. Any more like this will very simply be ignored or deleted.

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  2. Over at Rom Sedona’s blog, there is a comment to the effect that the pilot test idea was “played with” at the Bicameral Conference in late 2006. Two commentators told of an inside story that Filipino bidders wanted an “easy out” of the pilot test rule, but that the scheme fell awry because the Filipinos couldn’t get their act together. It seems sad if true. But as I noted at Rom’s blog, the requirement of “demonstrated capability,” totally independent of prior use in an election, survived into RA 9369, Sec. 10. So it seems there is no way out of the issue of how to define “demonstrated capability.”

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  3. Here’s a bit of a rejoinder. Two of my personal heroes were ENArcs, which is to say they studied at the Ecole Nationale. In a place full of consiglieri-type posturing, these two never suffered fools. Time was precious.

    The tragedy is that often fools don’t know that they are; and it’s an almost just schadenfreude to watch them whine.

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      1. In a real sense, the whole country became a giant pilot test. Did it pass? Barely, but it did show the benefit of automation if done in a transparent way that would foil would-be cheats. That PPCRV is manually re-encoding the ER data is a test of the integrity of the system if the results can be compared precinct-by-precint.

        But old-fashioned vote buying probably became “fashionable” again. Here’s where hard-labor journalism is needed, but I didn’t see the mainstream media up to it.

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