My comment on how to safeguard an automated election is at the Daily Tribune today.
After I had sent in that piece to the editor, I wondered about a possible scenario after the Supreme Court decides the Roque petition.
The scenario is something like this. The Court may well find that indeed there is a pilot test requirement in the law that has not yet been met, and therefore full nationwide automation in 2010 is illegal.
But the law (RA 9369) contains safeguards that could go a long way to eliminating dagdag-bawas, even if the precinct count is manual.
Should these safeguards be implemented whether or not we have full automation? The sensible answer is Yes, but the Comelec just might take the position that absent what it wants, we would remain within the old system where dagdag-bawas can prevail because the Certificate of Canvass is given priority of regularity over the Election Return.
I believe the correct answer is as follows. We ought to enforce those parts of RA 9369 that can be implemented even with a manual count. These include importantly the certification of Election Returns, and their wide distribution to media and the public. It will be up to the citizens, on their own, to aggregate the data and come up with their unofficial counts which can serve as a check on dagdag-bawas.
But what if Comelec does not implement these safequards? If the safeguard is clear, and Comelec’s duty “ministerial,” then it can be subjected to a Court order. This applies for example to the duty to make the source code of an automated system available to the public. But the matter may also become a “political question.” If the Executive or Comelec were to refuse to implement a law, Mandamus may not lie if there is an element of discretion on how to interpret the law or how to make the implementing rule or regulation. We would be back to “square one.” Maybe we should call it “square zero.”
The philosophical question: How did we get that way?