Saturday, September 12, 2009

Defeating the Intent of the Law

With 11 justices concurring and three dissenting, the Supreme Court, in Roque, et al., v. Comelec, et al., G.R. No. 188456 (September 10, 2009), voted to deny the petition questioning the legality of the poll automation contract entered into between Comelec and Total Information Management (TIM)-Smartmatic to fully computerize the 2010 national and local elections.

On July 10, 2009, Comelec awarded the poll automation contract to TIM and its foreign partner Smartmatic. The purpose is to implement a nationwide automation of elections in May 2010 pursuant to R.A. 8436 (Poll Modernization Act), as amended by R.A. 9369. But UP Law Professor Harry Roque and the Concerned Citizens Movement (petitioners in the case) questioned before the Supreme Court the validity of the contract on the following grounds: (1) lack of a pilot testing for automated elections; (2) validity of the joint venture between TIM and Smartmatic; (3) failure of the Precinct Count Optical Scans (PCOS) machines to meet accuracy requirements; and (4) abdication by Comelec of control over the electoral process.

Since the interpretation of section 5 of R.A. 8436, as amended by R.A. 9369, is the most contentious, I will limit my discussion on this issue. The pertinent provision reads as follows:

Sec. 5. Authority to use an Automated Election System.- To carry out the above stated-policy, the [Comelec], x x x 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 elections, which shall be held immediately after the 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 [Comelec]: 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 elections 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.
Interpreting the above provision (particularly the highlighted portion), the Court ruled that the requirement that in the regular elections to be conducted immediately after the effectivity of the law automation shall be conducted in at least two highly urbanized cities and two provinces each for Luzon, Vizayas and Mindanao is not an indispensable requirement for full automation in 2010. It is not a condition precedent or a condition sine qua non for full automation in 2010.

The majority refused to characterize said provision as "pilot testing." But as Chief Justice Puno observed in his separate opinion, the intent to test an automated election system (AES) is evident from the amended text of Sec. 5 of RA 8436. There is no rhyme or reason why Congress would mandate Comelec to use the AES first after effectivity of the amendatory law (RA 9369) in at least two highly urbanized cities and two provinces for each of the country's major islands if it were the intention not to pilot test. This is clear from the following statements of Senator Richard Gordon, cited by the chief justice, during deliberations on the automation law:

Mr. President, this is precisely why we are starting the automation in two provinces and two cities so that we do not take a big bite right away. And I accepted the amendment of the Minority Leader precisely because we want to make sure that the bite is sufficiently enough for us to be able to run the automation. . . . Now, the sample is only two provinces and two cities, Mr. President, so that we would be able to get a gauge.
Now I don't know what the words "to get a gauge" means, as used above, if not to test, check, determine or judge.

The Court determined that a pilot test is not necessary by saying that (1) the limited application of automation to two cities and provinces, as provided by Sec. 5 of RA 8436, refers only to the elections immediately succeeding the effectivity of the amendatory law (RA 9369), which is the 2007 elections and (2) by holding that the last sentence of Sec. 5, as amended, stands independently of the rest of the section. The last sentence of Sec. 5 states that "[in] succeeding regular national and local elections, the AES shall be implemented ." The majority views this provision as a mandate for full automation in 2010, regardless of the holding of a limited automation during the 2007 elections.

The following words of the chief justice in his separate concurring opinion are illuminating:

The respondents’ reading of Section 5 disregards the tenor of the entire provision. A rational reading of the entire provision will show that the different parts isolated and then interpreted by the respondents are connected by the conjunctions provided, that and provided, further that and provided, finally that. These conjunctions signify that the clauses that follow the conjunction are a pre-requisite or a condition to the fulfillment of the previous clause. The words provided, that mean the same as “as long as,” “in order that,” and “if only.” . . . In this light, Section 5 should be interpreted to mean that the COMELEC is authorized to use an AES as long as the following requisites are complied with: (1) for the regular national and local elections, which shall be held immediately after the effectivity of the Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao; (2) that local government units whose officials have been the subject of administrative charges within sixteen months prior to the May 14, 2007 elections shall not be chosen; and (3) that no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. And, when the above conditions are complied with, the AES shall be implemented nationwide in succeeding regular national and local elections.

As regards the last sentence of Sec. 5, this is what he said:

The last sentence of the provision which provides that “[i]n succeeding regular national or local elections, the AES shall be implemented nationwide” may appear as not connected to the enumeration of requirements for the use of an AES. But this does not mean that it can be read in isolation and independently from the rest of the provision. Section 5 expressly declares that the COMELEC's authority to use the AES on a nationwide scale is contingent on the prior conduct of partial automation in two provinces and two highly urbanized cities each in Luzon, Visayas and Mindanao.
But the chief justice, while recognizing the necessity of a pilot testing before full automation is implemented, stopped short by siding with the majority in holding that with the enactment of RA 9525 on March 5, 2009, which appropriated Php 11 billion for the 2010 elections, the pilot test requirement has been dispensed with. The argument is that it is the congressional intent in enacting RA 9525 to make way for full automation in 2010 despite the failure to implement a limited AES (two cities and two provinces automation) in May 2007.

The argument, however, of the petitioners is equally persuasive, if not more convincing. According to them RA 9525, particularly Sec. 2 thereof - as relied upon by respondents, has not impliedly repealed the pilot testing requirement of Sec. 5 of RA 8436, as amended, but in fact reinforces it as can be read from from the following proviso of Sec. 2: "the disbursement of the amounts herein appropriated or any part thereof shall be authorized only in strict compliance with the Constitution, the provisions of Republic Act No. 9369 and other election laws . . ." In other words, the utilization of the funds allocated by RA 9525 for poll automation shall be made strictly in accordance with RA 9369. As already discussed, Sec. 5 of RA 8436, as amended by RA 9369, mandates the two cities and two provinces application first of an AES.

A rational reading of Sec. 5 of RA 8436 shows the unmistakable intention of the law to pilot test first the implementation of an AES by limiting it to at least two cities and two provinces each for Luzon, Visayas, and Mindanao. There is no other purpose that can be gleaned from said provision but to see first how automation can be carried out with limited application, before making it nationwide in scope. And this is but proper, considering that it will be the first time that automation will be carried out in the election of national and local officials.

Since the initial requirement for full automation has not been complied with in the 2007 elections, that does not mean the same rationale is no longer applicable. Now, if the pilot test required by law was not implemented in the 2007 elections for practical reasons (due to time and funding constraints), there is no reason why, for practical reasons also, that said testing cannot be implemented first in 2010 before we embark on full automation. To be sure, the limited application of AES madated after the effectivity of RA 9369 was not just inserted there by Congress for no reason at all. It was meant to pilot test automation first, plain and simple. To repeat, just because automation was not undertaken during the 2007 elections does not mean that the purpose behind a pilot test no longer applies.

Applying the pilot testing requirement of Sec. 5 of RA 8436, as amended by RA 9369, in the 2010 elections would not violate the law anymore than its non-application during the 2007 elections violated the law. On the contrary, it will serve and implement the clear intent of the law.


SOURCE: Philippine Commentary

2 comments:

Dean Jorge Bocobo said...

Susmaryosep Atty! YOu are merely re-arguing Harry Roque's case, and with all due respect, it appears that like him you have missed the Forest for the Trees.

The Supreme Court is far more persuasive to me than either of you on the point about Congress being the actual source and progenitor of election automation--not Comelec!--a point I have repeatedly made recently as coming directly and explicitly from 1987 provision on Suffrage! And that therefore their actions subsequent to the passage of the laws they passed are most significant and telling.

I'm glad SCoRP used an argument I am well familiar with as it had been used on this very blog!

Therefore, contrary to the Motion for Reconsideration, fact is the Congress passage of the budget to proceed with full automation is a clear signal of its satisfaction that Comelec had fulfilled its end of Congress' plan to automate and modernize the polls.

As for the Chief Justice, maybe he is just playing to the grandstand isn't he, with that "Concurring" Opinion?

Jun Bautista said...

I don't know about grandstanding, but I would have preferred the chief justice's position more than that of the ponente's tortured interpretation of sec. 5 of RA 8436, as amended. And no one is questioning Congress's power as the source of automation. What is at issue is Congress's failure to express the intention to fully automate even with the passage of RA 9525 because it says "strict compliance" with RA 9369, and sec. 6 of RA 9369 calls for 2 cities and 2 provinces AES first. While full automation may have been in the minds and words of the legislators who participated in the automation budget deliberations, as cited by the chief justice, but words and intentions of individual legislators do not form the legislative intent: it is the law as ultimately crafted and passed.