Wednesday, August 12, 2009

No Fully-Automated Elections in 2010

UP Law Professor Harry Roque and the Concerned Citizens Movement (CCM) have been at the receiving end of criticisms ever since they filed a petition before the Supreme Court(SC)questioning the legality of fully-automated elections in May 2010. Although clearly expressing their position that they favor automated elections, Harry Roque and CCM's move is seen as abetting the agents of electoral fraud who thrive under our antiquated manual election system.

One of the major objections posed by Roque and CCM is the holding of a nationwide automated elections in May 2010. According to Roque and CCM, Republic Act 9369 (law amending the Poll Modernization Act or RA 8436) mandates Comelec to pilot test poll automation first by holding it in selected cities and provinces only for the coming national and local elections. A closer reading of RA 9369 will show that Roque and CCM are merely acting as proponents of the rule of law.

We were led to think that Congress finally crafted a mandate for full automation in the coming 2010 elections, but a review of the amendatory law will reveal that it provides for a hybrid election (partly automated and partly manual) only. The pertinent section of the law that justifies this assertion is as follows:


SEC. 6. Section 6 of Republic Act No. 8436 is hereby amended to read 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."


Notice the "provided clause" in the foregoing. It talks about the conduct of national and local elections in May 2010, which provides for automated elections (AES) in at least two highly urbanized cities and two provinces for each of the country's major islands. Comelec is given the authority to choose the appropriate cities and provinces, subject to the following criteria: (1) the Sanggunian or local legislative body of the chosen cities and provinces must consent to their designation for the conduct of automated elections; and (2) the officials of the designated cities and provinces must not have been administratively charged within 16 months before the May 2007 elections.

In other words, the amendatory law mandates Comelec to conduct automated elections in 2010 in certain selected areas only. It may be argued that the word "at least" in section 6 authorizes Comelec to hold automated elections in more than two cities and provinces as such phrase only sets the minimum. And more than two could practically mean covering all cities and provinces in the country which would in fact make automation nationwide. But that would be reading into the law something not contemplated by it. First, that would mean requiring the consent of the Sanggunian of every city and province in the country, which is of course ridiculous for why would the law prescribe such consent requirement if after all every city and province would be involved. Besides, the provinces and cities could clearly defeat automation by withholding consent. Second, a nationwide automation is clearly not contemplated by limiting it to cities and provinces whose officials have not been subjected to administrative charges before the 2007 elections. Surely, there are cities and provinces the officials of which have been administratively charged.

The last sentence of section 6 states that AES will be implemented on a nationwide basis in regular elections after the 2010 elections. Now if the 2010 elections are meant to be fully-automated, why would Congress even bother inserting this last sentence? The clear implication is that a fully-automated election is only allowed in regular elections succeeding the 2010 elections.

Another provision of RA 9369 which reveals the intent of Congress on partial automation is the following section:


SEC. 31. Section 25 of Republic Act No. 7166 is hereby amended to read as follows:


"Sec 25. Manner of Counting Votes. - In addition to the requirement in the fourth paragraph of Section 12 of the Republic Act No. 6646 and Section 210 of the Omnibus Election Code, in reading the official ballots during the counting, the chairman, the poll clerk and the third member shall assume such positions as to provide the watchers and the members of the public as may be conveniently accommodated in the polling place, an unimpeded view of the ballot being ready by the chairman, of the election return and the tally board being simultaneously accomplished by the, poll clerk and the third member respectively, without touching any of these election documents. The table shall be cleared of all unnecessary writing paraphernalia. Any violation of this requirement shall constitute an election offense punishable under Section 263 and 264 the Omnibus Election Code.
"The chairman shall first read the votes for national positions.
"Any violation of this Section, or its pertinent portion, shall constitute an election offense and shall be penalized in accordance with Batas Pambansa Blg. 881.


The above section, as well as section 12 of RA 6646 or the Electoral Reforms Law of 1987 and section 210 of the Omnibus Election Code as referred to therein, provide for the manner in counting of votes at the precinct level under a manual election system. It is accomplished with the chairman of the Board of Election Inspectors tediously reading the names of all candidates voted in every ballot. If it were the intention of Congress to provide for full automation come 2010, the above section 31 would surely be out of place since in an automated election either the ballots are brought to a central counting center where they are fed to counting machines or the votes on every ballot are counted as they are fed to voting machines which will then electronically transmit the results for consolidation, or by any other methodology as the voting machines permit and as determined by Comelec, but certainly it will not be in the antiquated manner provided by section 31, which is prone to cheating and election protests.

Section 31 is clearly intended to govern the manner of counting of votes in areas where AES is not implemented in 2010. These will be the cities and provinces which will not be designated by Comelec for computerized elections. And this is only possible in partially-automated elections. As for areas covered by AES, Comelec is authorized under section 18 to provide for the procedure in the automated counting of votes.

If the 2010 elections proceed under a fully automated mode, as it is being pursued by Comelec right now, losing candidates could find refuge under RA 9369 in asking for the nullification of the elections. Imagine the results of an entire election being invalidated for having been conducted in violation of law. This would be a surefire recipe for a constitutional crisis of huge magnitude that would throw the whole country in chaos. So Roque and CCM are actually doing us a favor in questioning as early as now the legality of a fully-automated elections in 2010.

But there is still hope for nationwide automated elections even if the SC were to rule against full automation in 2010. Congress could easily amend RA 9369 by removing the partial and qualified application of the AES as it now stands. If President Macapagal-Arroyo is really true to her pronouncements of favoring fully-automated elections in 2010, she could as easily certify as urgent an amendatory bill that Congress would pass.

Now if Roque and CCM are proven wrong, as I will be, then we could all concentrate on becoming vigilant to ensure the conduct of honest, orderly and peaceful fully-automated elections in May 2010.


SOURCE: Philippine Commentary

9 comments:

Dean Jorge Bocobo said...

The pilot testing was already done in the ARMM elections. This is not the rule of law but evidence that a Y2K-bug-like superstition has overcome Harry Roque. To the extreme joy of Garci and Bedol.

Dean Jorge Bocobo said...

I don't think anyone who thinks it would be illegal under this law to hold an automated election next year has anything to worry about. SCoRP is virtually certain to make Harry Roque famous and them and Garci blood brothers. Because that is what the Palace wants. That is what the trapos want. That is what the election operators want. That is in fact what Comelec wants too!

Everybody wants to stay with the Devil That They Know. That is why the word is out that all the major political parties are hiring election "specialists" and not I.T. experts.

Yet one wonders why the author of the law itself, Dick Gordon, does not agree with the conclusions reached here and says on his Facebook account that this suit is "obstructionist".

I agree. Roque and the rest have walked into a Palace trap. GMA doesn't want to do the Dirty Work of killing automation. Luckily for her Roque has done the job for Oliver Lozano.

Now if I were to take the Omnibus election code and go through it with even a rough comb, I bet I could show you that manual elections are themselves a pack of unlawful procedures with mandates that manual elections OBVIOUSLY cannot fulfill.

Where the Constitution demands that Congress provide for a system that guarantees the SECRECY and the SANCTITY of the ballot, do our Rule of Law advocates claim that the manual elections in any way shape or form obey this mandate.

No! There foremanual elections are also illegal in the same highly technical sense Harry Roque is using.

Well he wil be as famous as Gus Lagman and just as destructive of our democracy.

Dean Jorge Bocobo said...

Now I hate to put out technical arguments myself, but let's take the bull by the horns then.

I start by asking Atty. Jun to interpret for us the provision he cited which says:

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."

Note the phrase "at least two cities in ..." I claim that if the Comelec conducts automated elections in NOT EVERY SINGLE CITY, then Comelec will be complying with the requirement of "at least two cities" and not violating it.

Jun, Do you agree with this purely semantic point?

Dean Jorge Bocobo said...

Let me restate the question more simply:

If the Comelec conducts automated elections in 1399 municipalities and 79 provinces (we have 1400 municipalities and 80 provinces) has it not conducted an automated election in "at least two highly urbanized cities and two provinces each from Luzviminda?

Jun Bautista said...

Thank you for the generous comments Dean. As regards your question with the hypothetical situation you presented, it would appear that Comelec will be performing its mandate under Section 6. I myself have even gone further than your proposition by saying that it could be all of the provinces and cities since "at least" appears to set a minimum only. But like you said it is a "purely semantic point." The spirit of the law does not contemplate such situation but rather, as Roque puts it, for pilot testing purpose by limiting the application of AES in certain areas to be designated by Comelec. If you read the whole law, you will see in different sections indications of a mandate for partial automation only in 2010. and I have indicated some of these provisions. It is essential that we not read every portion of the law in isolation, but each should be harmonized with the whole in arriving at its meaning.

If as you said Senator Gordon does not agree with Roque's position (I have not actually read his brief filed with the SC), then why don't we ask the good senator to explain to us the meaning of section 6.

Dean Jorge Bocobo said...

I don't think the law's intent in a pilot test is that of a "proof test"--only a recognition of the complexity of the task. ON the other hand, Gordon and the Congress could not have been aware of the true capabilities of a vendor like Smartmatic or even its existence at the time the law was crafted. My reading of the law is that Congress is providing for a system to guarantee the security and sanctity of the ballot, which is surely more important than any apparent micromanagement of the sequencing of the implementation. (That is Comelec's job, not the Congress').

I think there is also a glaring inconsistency to Roque's suit. If he is just really after enforcing the literal Rule of Law, then why doesn't he go after the manual election which surely violates much much more of the Omnibus Election Code and the Constitution.

Jun Bautista said...

The law's intent is to transition from a complete manual elections to automated elections. The pilot testing, as Roque terms it, would usher this transition by limiting AES to certain areas in the 2010 elections. That Gordon or Congress could not have been aware of Smartmatic's or any other vendor's capabilities at the time of the law's passage all the more argues well for a limited application of AES. At least if the AES becomes saddled with complications, failure of elections will be limited to the areas where it will be used. This would be minimizing the risks.

The suit of Roque is premised on the claim that the manner Comelec will be implementing the 2010 elections is not in accordance with law, because it does not authorize a nationwide computerized elections. Manual election, on the other hand, is clearly the method prescribed by the election code prior to RA 8436 and RA 9369.

Anonymous said...

RA 9369 was passed on the last week January 2007. "...Provided, that for the regular national and local election, which shall be held immediately after effectivity of this Act." would have meant the May 2007 elections. Obviously, it was impossible to be met due to time constraints. So, Comelec, in good faith, did a pilot in 2008 ARMM, the next available elections with enough time to prepare. "...In succeeding regular national or local elections, the AES shall be implemented nationwide." would have meant the May 2010 elections. While the 2008 ARMM pilot may have not met the minimum requirements of a pilot in terms of venues which I just consider form, it satisfied the substance of the pilot, which is to test, in this case two different technologies, access the acceptance of the end users, and evaluate the overall performance of an automated elections. The post elections feedback by the voters who participated in the ARMM elections was very positive as reflected in public surveys. The evaluation of the Comelec Advisory Council on overall performance was also positive. In short, if indeed a pilot is a pre-requisite to full automation, then it was done successfully at least in substance and maybe short in form.

Jun Bautista said...

Anonymous,

The minimum requirements for a pilot test required by law cannot be met by the ARMM elections for three reasons: (1) RA 9369 talks of a regular national and local elections, not a special election such as the ARMM; (2) two AES technologies were used, instead of only the OMR technology (aside from the fact that the machines used in the ARMM have not been supplied by Smartmatic); and (3) the areas should be in at least 2 highly-urbanized cities and 2 provinces for the 3 major islands. I don't think these requirements are merely of form. And yes, I believe a pilot test is necessary for the reasons already mentioned in my article.