Testing the Right to Vote

Aside from enduring the sweltering heat and practically numbing my knees as I staggered along Padre Faura in my two-and-a-half inch heels, it certainly was a privilege to have attended the oral arguments in the Supreme Court last Wednesday concerning the nationwide automation of the May 2010 elections. It wasn’t my first time in the Supreme Court but I still found myself eyeing the imposing pillars and ogling at the portraits of all the Chief Justices this country has had.

As the newspapers have reported, the Concerned Citizens Movement headed by Prof. Harry Roque had initially filed a motion for the issuance of a temporary restraining order about a month ago. The motion was not granted but the Court ordered, however, that oral arguments should take place between CCM as petitioner and respondents Commission on Elections, TIM and Smartmatic.

Many issues emerged in the course of the oral arguments but one particular argument proffered by CCM caught the interest of the justices that Prof. Roque was quizzed on the issue endlessly. This involved Sec. 6 of RA 9369 which provides for the use of the AES (automated election system) in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao. The provision states 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...

xxx xxx xxx

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…

xxx xxx xxx

In succeeding regular national or local elections, the AES shall be implemented nationwide.’”

CCM argued that the proviso was mandatory given the wording of the law. The word “shall” was used for starters. In addition, the last sentence of Sec. 6 states that the AES shall be implemented nationwide “in succeeding regular national or local elections,” indicating that the “pilot testing” should first take place in two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao. The term “pilot testing” was not used in RA 9369 but this was originally utilized by Sen. Richard Gordon, one of the sponsors of the law when it was still in the initial stages as a bill. On the other hand, the COMELEC was of the position that the provision was not mandatory and that even if it were, it had complied with the proviso through its use of the AES in the recent ARMM elections.

Statutory construction has offered three possible interpretations for the said provision which could support either view. However, in examining the said provision, I submit that the mandatory view finds its support in another realm apart from what a former senator has called legal gobbledygook.

I do know from experience how tedious a systems project can be. The process itself is far from a walk along the Elyssian Fields. System development in itself is an experience which can be described as harrowing and horrifying. Don’t get me wrong, it can be a lot of fun but at some point in time, your head starts throbbing and you don’t know for sure whether your computer will overheat before your senses. In the process of system development, before the end product can be delivered to the end user, an important aspect is testing. Testing in itself has a number of stages such as unit testing to system testing to user acceptance testing with each stage undergoing a particular number of iterations. Factor in Murpy’s Law and you start to feel to have a steady supply of Paracetamol. But the bad news comes when you realize that no matter how many times testing is done, no matter how many iterations are noted, glitches and bugs can still make their grand appearance in the actual environment.

It would be healthy to assume that Smartmatic has conducted hardware testing on its counting machines along with a systems testing of the software to be used by the machines. However COMELEC intends to go full blast with the implementation of the AES come May 2010 and that is where my reservations start trickling in like a steady stream of code. The machines are essential, crucial even, in determining the outcome of the elections thus they should at least have some semblance of reliability. No, not just some semblance, they should possess a significant degree of reliability. Reliability, in turn, is assured by system which is stable and should perform according to its intended function without compromising or altering the data input. These are the very attributes which testing is going to highlight.

Before the AES is to be implemented, it is essential that it should first be tested in the actual environment. This is what the “pilot testing” intended in Section 6 aims to do. The “pilot testing” in two highly urbanized cities and two provinces in Luzon, Visayas and Mindanao will reveal possible system problems which could be encountered including user difficulties, system defects, bugs, environment problems and the like. Only until all such permutations have been accounted for should a nationwide rollout of the AER take place. In systems development, despite all the testing a system undergoes, problems are still encountered in the actual environment as not all issues with the system can be anticipated. In the same vein, if the AER were to be implemented nationwide without first undergoing pilot testing with the actual users a.k.a. the voters, it can be assumed that voting come May 2010 will not be easy. The ARMM elections cannot be considered as the “pilot testing” intended by the law since different machines were utilized. In testing, the same hardware and software should be used in the actual environment, otherwise there would be no point in going into the exercise.

Knowing that these counting machines are crucial in reflecting the choices I make as to who should comprise this government come 2010, it is therefore reasonable to demand integrity, reliability and stability. In fact, it is my sacrosanct right to do so. Utmost protection should be given to every vote and part of securing that vote is to make sure that each ballot is properly accounted for. The right of suffrage is the very cornerstone of our democratic society and I would certainly want to be assured that my vote was counted – and counted properly, at that. No matter how some pessismists argue that this is nothing but legal fiction, there is certainly no way that I would allow my voice to fall into a dark unknown crevice, (no) thanks to a mere machine.