What is a “standard”? What is the meaning of “demonstrated capability”?
The answers are not just an academic exercise. They can determine whether Comelec can willy-nilly automate the 2010 elections nationwide.
The law empowers the Comelec to prescribe and oversee automation, subject to many requirements, among which is that the automated system must have “demonstrated capability” (RA 9369, Secs. 1 and 10).
How then will Comelec determine whether a computerized system has “demonstrated capability”? How much discretion does it have? The answer here must be one that does not contravene the power of Congress to provide for the secrecy and sanctity of the ballot (Art. V, Sec. 2, Constitution). In effect, there is a kind of delegation of legislative power to Comelec. Is that valid?
The general principle is that Congress may not delegate its power to legislate. Bernas cites Corwin, an American constitutional law authority, when he discussed this non-delegability of legislative power. Corwin bases the principle on three ideas: (a) the doctrine of separation of powers; (b) due process of law, which bars the transfer of regulatory functions to private persons; and (c) the maxim of agency attributed to John Locke (delegate potestas non potest delegari). The legal latin means that the agent may not himself delegate his agency to another, as this may leave the principal “hanging” as to the accountability of the agent.
Exceptions to the non-delegation principle are made when a governmental agency “fills in the details” of a statute, on the ground that the agency does not make law but merely “executes” laws. However, this exception is subject to certain requirements.
The requirements are (see Pelaez v Auditor General, 1965):
(a) The statute must be complete in itself; and
(b) The statute must fix a “standard,” to which the agency must conform in the performance of its functions.
So what is the “standard”?
It has been held that the standard need not be explicit. It can be drawn from the declared policy of the law or Constitution, and from the totality of the delegating statute (emphasis added). Tablarin v Guttierez, 1987.
It is submitted that the standard here is in the Constitution itself. Elections must be one where the system provided (by Congress) is one which secures “the secrecy and sanctity of the ballot.” Art. V, Sec. 2. This standard can also be set up to determine whether Comelec is within its discretion when it determines that a particular system it procures for 2010 has the “demonstrated capability” (RA 9369, Sec. 10).
If that is the meaning of “standard,” then the arguments of those who oppose the Smartmatic-TIM contract make sense. The system envisioned in that contract is not transparent because there is no guarantee of the integrity of the count, which is part and parcel of “sanctity” of the ballot. All that Comelec and Smartmatic-TIM have are mock testing (still to be conducted) and certifications of the “technical” accuracy of the machines under a carefully controlled environment. These evidences offered do not rise to the level of credible and convincing. See my post on how to have a transparent audit of a machine similar to that intended to be used for 2010.
Resolving the issue of “demonstrated capability”
One way of resolving the matter and giving meaning to “demonstrated capability” is to base such on the successful conduct of a pilot test. The law, in any case, sets up the pilot exercise as a condition precedent, as can be inferred from a reading of Sec. 6 of RA 9369, and the totality of that statute in relation to RA 8436 that it amended. See my earlier post on the pilot test requirement.
However, it now appears that the Office of the Solicitor General, representing Comelec, now claims that there was never a condition precedent and that it was never there in the law (see newspaper report). That assertion is simply incorrect, given the pronouncements of the legislators and the two bills (house and senate) that were “conferenced” into RA 9369. Tellingly, the words “2007 pilot test exercise” appear in RA 9369, Sec. 10.
Another way to resolve the question of what “demonstrated capability” means is to consider the implementing rules and regulations in this area. It appears that such regulations are implicit in the rules that Comelec has put forward in various resolutions made during the bidding process, including apparently a rule that did not require bidders to be juridically existent at the time of the bid. Case law provides a guide. In Lupangco v Court of Appeals, the Supreme Court included among the requisites for validity of implementing rules is that these rules must be “reasonable.” Given the controversy, the Supreme Court is likely to have to rule on whether the Comelec acted reasonably in setting up the rules for determining whether a given computerized system has “demonstrated capability.” The key question on “reasonability” is whether the tests conducted thus far by Comelec gives sufficient assurance regarding the credibility and integrity of the machine count. Unfortunately, this is in large part a question of fact that cannot be settled without reliance on expert opinion, and such opinion is divided. There are those who consider that rules that would have permitted an alternative system (called OES) would have gone a long way to meet the reasonability criterion. But such rules were not the ones promulgated by Comelec.
Absent the fulfillment of the condition precedent, Comelec remains without authority to conduct a nationwide automated election. This is clear enough from the law itself.
Absent transparency in the system procured for 2010, the requirement of “demonstrated capability” in the law has not been met. And Comelec oversteps its delegated powers under RA 9369, hence it commits grave abuse of discretion in signing the Smartmatic-TIM contract.