Wednesday, November 18, 2009

Of Abdication and Ballot Secrecy

Two of the main legal objections against the automation being implemented by the Comelec was that, first, it constituted a wholesale abdication of the poll body’s constitutional mandate for election law enforcement and, second, that the mechanism of the PCOS machines would infringe the constitutional right of the people to the secrecy of the ballot.

How did the Court deal with these arguments?

The claim of petitioners was that by acceding to Art. 3.3 of the automation contract, Comelec relinquished supervision and control of the system to be used for the automated elections. They deduced loss of control from the fact that Comelec would not be holding possession of what in IT jargon are the public and private keys pair. But note the following exchange:

CHIEF JUSTICE: Well, more specifically are you saying that the main course of this loss of control is the fact that SMARTMATIC holds the public and private keys to the sanctity of this system?

ATTY. ROQUE: Yes, Your Honor, as well as the fact that they control the program embedded in the key cost that will read their votes by which the electorate may verify that their votes were counted.

CHIEF JUSTICE: You are saying that SMARTMATIC and not its partner TIM who hold these public and private keys?

ATTY. ROQUE: Yes, Your Honor.

The Court was not convinced. The abdication argument, the Court, said was a simplistic conclusion. “The petitioners, to stress, are strangers to the automation contract. Not one participated in the bidding conference or the bidding proper or even perhaps examined the bidding documents and, therefore, none really knows the real intention of the parties. As case law tells us, the court has to ferret out the real intent of the parties. What is fairly clear in this case, however, is that petitioners who are not even privy to the bidding process foist upon the Court their own view on the stipulations of the automation contract and present to the Court what they think are the parties’ true intention. It is a study of outsiders appearing to know more than the parties do, but actually speculating what the parties intended.”

Note also the following exchanges:

CHIEF JUSTICE: Why did you say that it did not, did you talk with the Chairman and Commissioners of COMELEC that they failed to perform this duty, they did not exercise this power of control?

ATTY. ROQUE : Your Honor, I based it on the fact that it was the COMELEC in fact that entered into this contract ….

CHIEF JUSTICE : Yes, but my question is – did you confront the COMELEC officials that they forfeited their power of control in over our election process?

ATTY. ROQUE : We did not confront, your Honor. We impugned their acts, Your Honor.

As to the control of public and private keys, the Court noted that initially petitioners were “cocksure” about this. But on further questioning their answer manifested a qualifying tone:

JUSTICE NACHURA: And can COMELEC under the contract not demand that it have access, that it be given access to and in fact generate its own keys independently with SMARTMATIC so that it would be COMELEC and not SMARTMATIC that would have full control of the technology insofar as the keys are concerned xxx?

ATTY. ROQUE: I do not know if COMELEC will be in a position to generate these keys, xxx.

The speculative nature of the argument of petitioners became clearer later:

CHIEF JUSTICE: Yes, but did you check with the COMELEC who will be holding these two keys x x x did you check with COMELEC whether this system is correct?

ATTY.ROQUE: We have not had occasion to do so, x x x Your Honor.

x x x x

CHIEF JUSTICE: Why do you make that poor conclusion against the COMELEC x x x May not the COMELEC hire the services of experts in order for the institution to be able to discharge its constitutional functions?

ATTY. ROQUE: That is true, but x x x there is too much reliance on individuals who do not have the same kind of accountability as public officers x x x

CHIEF JUSTICE: Are you saying that the COMELEC did not consult with available I.T. experts in the country before it made the bidding rules before it conducted the bidding and make the other policy judgments?

ATTY. ROQUE: Your Honor, what I am sure is that they did not confer with the I.T. Foundation x x x.

CHIEF JUSTICE: But is that foundation the only expert, does it have a monopoly of knowledge?

On the matter of ballot secrecy, this is what the Court said:

“Surely, the Comelec can put up such infrastructure as to insure that the voter can write his preference in relative privacy. And as demonstrated during the oral arguments, the voter himself will personally feed the ballot into the machine. A voter, if so minded to preserve the secrecy of his ballot, will always devise a way to do so. By the same token, one with least regard for secrecy will likewise have a way to make his vote known.”

Finally, what I find refreshing about the Court’s decision is that it did not attempt to substitute its judgment on technical matters for the judgment of the officials charged with the responsibility to make that judgment. It limited itself to verifying what the Automation Law demanded. True it is that the Court can nullify the acts of executive officials who have committed grave abuse of discretion amounting to lack or excess of jurisdiction. But the Court will not easily attribute grave abuse of discretion to an independent body like the Comelec on a matter over which the independent body has the mandate and expertise.

14 September 2009

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