There have been two hearings, so far, of the Joint Congressional Oversight Committee (JCOC) on the Automated Election System (AES)—on August 14 and August 28, 2014.
What is JCOC?
Section 33 of Republic Act 9369 (the Election Automation Law) states: “An Oversight Committee is hereby created composed of seven members each from the Senate and the House of Representatives, …to monitor and evaluate the implementation of this Act. … The oversight committee shall conduct a mandatory review of this Act every twelve (12) months from the date of the last regular national or local elections.”
“The oversight committee shall conduct a comprehensive assessment and evaluation of the performance of the different AES technologies implemented and shall make appropriate recommendations to Congress, in session assembled, specifically including the following: . . .
“4. As to the kind of AES technology, provide for proposals as to whether:
“a) A particular AES technology should no longer be utilized for being obsolete,inapplicable, inaccurate or with a defect which cannot be remedied;
“b) An enhancement or improvement is needed to an AES technology which was used in the 2007 election to make it more functional, appropriate and accurate;
“c) A particular AES technology is already appropriate and should be utilized fully for subsequent election; or
“d) The testing or adoption of new technologies which may have emerged after the 2007elections is needed.”
I was present during these two hearings and, on both occasions, was able to ask the Comelec the question that, I imagine, they wished they never would have to respond to, and that is:
Why spend P18 billionon PCOS, which only cuts down the election process by half a day, but removes the transparency in the counting process and impairs the protest process? It is, after all, the automation of the canvassing that shortens the process from six weeks down to a few days.
So, really, why?
Toward the end of the first hearing, the presiding Chairman, rightfully—as the answer to this question is one of the major issues JCOC is supposed to address—directed the Comelec to prepare an official response to the question.
During the second hearing, I managed to ask the question again as the discussions were about to close. Chairman Brillantes of the Comelec immediately said that he had a quick answer to my question. He said that R.A. 9369 will not allow manual precinct counting.
That response kind of surprised me because Chairman Brillantes is a lawyer, as in fact, all the other commissioners of the Comelec are. The law is very clear—so clear that even non-lawyers will not make the mistake of misinterpreting it.
R.A. 9369 says:“ . . . the Commission on Elections . . . is hereby AUTHORIZED to use an automated election system . . . for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises.”
The operative word used is “authorized,” not “mandated.” Surely, the chairman knows the difference between the two. But for his benefit, let me illustrate: I have a driver’s license issued by the Land Transportation Office (LTO); I am therefore authorized to drive. I am, however, not mandated to drive. I can ask somebody else to drive for me, or I can choose to walk.
I am also familiar with the spirit behind that provision of the law. I happen to be a member of the Technical Working Group that assisted the Senate in crafting R.A. 9369 in 2006 (then Senator Richard Gordon was the main author of the Senate version of the law). This provision was meant to be directory, not mandatory.
This time, I’m sure Chairman Brillantes knows the difference between directory and mandatory because he talked about it in length during the first hearing. He said that there are provisions in the law that are mandatory before the elections, but become directory after. That statement baffled me and many others who were in the room.
If, on the other hand, I were to use Chairman Brillantes’ interpretation of this provision – that the law mandates full automation of our elections – then PCOS would also be in violation of the law because, with PCOS, voting is manual! We manually shaded those ovals, didn’t we?
Then, why did Chairman Brillantes respond in that manner? Didn’t he know? If he didn’t, then he has no business being with the Commission. If he knew that, then was he trying to fool us?
Or, as some people would tell me – “he knows, but because he can’t argue intelligently with your solution, he had to invent one, lame as it is.”
Chairman Brillantes said, on many occasions, that we are not lawyers and should not dwell on discussions about legal matters. He chooses to attack us, the people who present the arguments, rather than addressing the arguments themselves. I believe there’s a Latin expression that logicians use to refer to this: “Argumentum ad hominem”. Tsk, tsk . . .