Davide and Goliath: Trust, But Automate

LECTORAL REFORM is the daunting task that must be accomplished before the next national elections, which will be either the 2007 midterm elections or an historic plebiscite on a Fifth Philippine Constitution. Yet the task is like converting Goliath to the Jewish faith. Bible-thumping former Chief Justice Hilario Davide has been appointed by GMA to take it on. As things stand, Jose de Venecia's chacha will be allowed to make just enough political noise--pro and con--to drown out the Second Impeachment moves in the House. But it will likely be ditched by the Palace at the peak of public opposition to its absurd and impossible complexities, or after it has served its diversionary purposes, which ever comes first. The Palace, through Rick Saludo, made it crystal clear last week that Chacha is Congress' Baby. Essentially following suit while attracting the oblivious media with a stentorian yet hollow moralism, the Catholic Bishops have already washed their hands of direct responsibility by saying, "We'll kibitz and be on the right side in the end, but leave Politics to the Sanhedrin, our Kingdom is not of this Earth." (although they took longer saying it.) In fine, the Pastoral Letter was half Benedict's Encyclical and half PDI Editorial. It was made with a patent self-consciousness that every sentence was a potential headline, every phrase a pssible sound bite. The CBCP has become nothing more than the editorial board of Catholic Mass Media. They should win the annual award this year. Read the Pastoral Letter carefully -- it doesn't say what the big sensational headlines say. Cardinal Sin really is dead.

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UPDATE: CBCP President Archbishop Angel Lagdameo is a Blogger. He has the Pastoral Statement up as his current posting and the Comment Thread is open.

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16 MONTHS TO GO I will assume we must prepare for regular, national, senatorial elections in May, 2007 under the 1987 Charter -- barely 16 months away. (Maintain the status quo. That is the true interest of the Palace. Any change is a threat.) But the incumbent Comelec itself represents the biggest obstacle to electoral reform. Calls to impeach and punish Abalos and Co. for their gross failures in the preparation and conduct of the disastrous 2004 elections, in particular their failure to automate the registration, polling, counting and canvassing of the vote.

DAVIDE AND GOLIATH But newspaper Philippine Daily Inquirer is very unhappy former Chief Justice Hilario Davide has accepted the job of Presidential Adviser on Electoral Reform under Gloria Macapagal Arroyo. PDI is worried that the Chief Justice of the Supreme Court they hailed as Person of the Year in 2001, will now become Window Dressing for GMA. In two editorials today, "Why DAVIDE?" and "WHY, Davide?", PDI first suggests ex-Elections Commissioner Virgilio Garcillano would fit the bill better, being a plumber who knows where the pipes are buried and GMA's alleged voterigger in 2004. The second editorial however, is not so facetious. It expresses a pained disappointment that Hilario G. Davide, Jr. has accepted the position, where PDI believes he will just be "political window dressing" for the electoral reform initiatives of Gloria Macapagal Arroyo. The editorial moans,

For the record, we have no doubt that Davide, once the Inquirer’s Filipino of the Year, has the moral stature, the legal acumen and the executive experience the reform initiative needs. But above all else, election reform requires political will. As a mere presidential adviser, Davide can exercise none. That makes him mere political window dressing

NOT THE BIG APPLE? There were many rumors Davide wanted instead the highly desirable post as permanent U.N. Envoy in New York, but I am not at all surprised at this turn of events. Hilario Davide is "essential personnel" to GMA, especially this year, when she faces many legal challenges, including a Second Impeachment and the constitutionality of E.O. 464. He was there on the very first day she became President, he will most likely be there in the last days of her regime, whether it lasts or not, for he is, in an ineluctable sense, an integral part of that regime. His fate and that of GMA are inseparable because they are tied together by his most awesome Decisions -- our knowledge and understanding of which, only seems to improve with greater hindsight and historical perspective.

SEPARATE OPINION But in answer to the second editorial's question, "Why, Davide?" some interesting possibilities are suggested by the following Separate Opinion rendered by then Chief Justice Davide, who did not think the Court should have even taken up the case, which was eventually decided in favor of the plaintiff and whose decision was penned by now Chief Justice Artemio Panganiban -- when the Supreme Court killed the Comelec's Automated Counting System in ITF vs. Comelec.

Separate Opinion DAVIDE, JR., C.J.:

I join Mr. Justice Jose C. Vitug in his separate opinion and strongly recommend, for the reasons therein stated, that this case be DISMISSED.

Let me further add other compelling reasons which strengthen my view that this case should be dismissed.

The Court did not issue a Temporary Restraining Order in this case. This showed an initial finding that on its face the allegations in the petition were insufficient to justify or warrant the grant of a temporary restraining order. In the meantime then the parties were not barred from performing their respective obligations under the contract. As of today, the COMELEC has already paid a large portion of its contracted obligation and the private respondent has delivered the contracted equipment for automation. It is to be reasonably presumed that during the same period the COMELEC focused its attention, time and resources toward the full and successful implementation of the comprehensive Automated Election System for the May 2004 elections. Setting aside the contract in question at this late hour may have unsettling, disturbing and even destabilizing effect. For one, it will leave the COMELEC insufficient time to prepare for a non-automated electoral process, i.e., the manual process, which would necessarily include the acquisition of the security paper and the purchase of a “dandy roll” to watermark the ballot paper, printing of other election forms, as well as the bidding and acquisition of the ballot boxes. For another, the law on Automated Election System (R.A. 8436) and Executive Order No. 172 (24 January 2003) which allocated the sum of P2.5 Billion, and Executive Order No. 175 (10 February 2003) which allocated the additional sum of P500 Million for the implementation in the May 2004 elections of the Automated Election System would be put to naught as there is absolutely no more time to conduct a re-bidding.

Finally, there is no suggestion that graft and corruption attended the bidding process, or that the contract price is excessive or unreasonable. All that the petitioners claim is that “the bidding and the award process was fatally flawed. The public respondents acted without or excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction when it [sic] awarded the project.” It may be precipitate for this Court to declare void the contract in question.

Indeed in his Separate Opinion Justice Jose C. Vitug was practically scolding the Court for even taking on the ITF case:--

Justice Vitug: What appears to be a significant issue in the instant petition is the legality of respondent COMELEC’s award of the contract relative to the procurement of automated counting machines to respondent Mega Pacific under alleged questionable circumstances. The Supreme Court is not a trier of facts; indeed, a review of the evidence is not the proper office of a petition for certiorari, prohibition or mandamus.[3] These proceedings are availed of only when there can be no other plain, adequate and speedy remedy in the ordinary course of law.

In certiorari or prohibition, issues affecting the jurisdiction of the tribunal, board and officers involved may be resolved solely on the basis of undisputed facts.[4] The enormity of the factual disputes in the instant petition, among which include the eligibility of Mega Pacific to participate in the bidding process, the veracity and effectivity of the testing, and the technical evaluation conducted by the Department of Science and Technology (DOST) on the automated counting machine of the bidders, would essentially require an extensive inquiry into the facts. An insistence that it be resolved despite unsettled factual points would be inadequate to allow an intrusion by the Court.[5]

And Justice Dante Tinga's Dissenting Opinion was pretty strident, in a losing cause. --

But in this case, no constitutional provision or letter of a statute was alleged to have been violated. The Court nullified the contract for an automated election system (“AES”) simply on the ground that in making the award the COMELEC has allegedly violated its bidding rules and an unfounded apprehension that the counting machines would not work on election day. On the other hand, not one of the losing bidders has joined the petition, as neither they nor the petitioners questioned the fairness of the price tag for the machines.

MANUAL ELECTIONS MUST GO Moralists will insist that morality is what is missing and that what we need are honest men at Comelec. But at the heart of the problem is the manual election system itself, which truly depends on the honesty, probity and integrity not only of the Comele Commissioners, but of thousands of other people. Yet it's like running a bank without computers, security guards or auditors. We should not put elections entirely in the hands of Comelec anymore. We don't have to. We do not have to rely mainly on the honesty and integrity of Comelec Commissioners because the whole point of automation is to make cheating close to impossible. How close? I've asserted that the banking system's Automated Teller Machine network is an adequate starting model of the level of security, sophistication, operation and cost for a modernized election system. Indeed, such a network, an Automated Election Machine network, could handle the registration and verification of voters, the election polling process and the speedy counting and nationwide canvassing of the votes. A related post recently asks, Was the 2004 Election Automation Junked Deliberately? I think it was! So I don't think there should EVER be another manual election. Not anymore than that there should ever again be a manual banking system. A new election system can make reliance on the honesty of men largely obsolete, because it is possible to do so with available secure technology, and not to do so would be fooolish.

For the Goliath we face is ourselves.