From the practical viewpoint, the pilot testing of the technology in question in an actual, scheduled electoral exercise under harsh conditions would have been the ideal norm in computerized system implementation. The underscored proviso of Sec. 6 of RA 8436 is not, however, an authority for the proposition that the pilot testing of the PCOS in the 2007 national elections in the areas thus specified is an absolute must for the machines’ use in the 2010 national/local elections. The Court can concede that said proviso, with respect to the May 2007 elections, commands the Comelec to automate in at least 12 defined areas of the country. But the bottom line is that the required 2007 automation, be it viewed in the concept of a pilot test or not, is not a mandatory requirement for the choice of system in, or a prerequisite for, the full automation of the May 2010 elections.
As may be noted, Sec. 6 of RA 8436 may be broken into three essential parts, the first partaking of the nature of a general policy declaration: that Comelec is authorized to automate the entire elections. The second part states that for the regular national and local elections that shall be held in May 2007, Comelec shall use the AES, with an option, however, to undertake automation, regardless of the technology to be selected, in a limited area or, to be more precise, in at least two highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to be chosen by the Comelec. On the other hand, the last part, phrased sans reference to the May 2007 elections, commands thus: “[I]n succeeding regular national or local elections, the [automated election system] shall be implemented.” Taken in its proper context, the last part is indicative of the legislative intent for the May 2010 electoral exercise to be fully automated, regardless of whether or not pilot testing was run in the 2007 polls.
To argue that pilot testing is a condition precedent to a full automation in 2010 would doubtless undermine the purpose of RA 9369. For, as aptly observed during the oral arguments, if there was no political exercise in May 2007, the country would theoretically be barred forever from having full automation.
Sec. 6 of the amended RA 8436, as couched, therefore, unmistakably conveys the idea of unconditional full automation in the 2010 elections. A construal making pilot testing of the AES a prerequisite or condition sine qua non to putting the system in operation in the 2010 elections is tantamount to reading into said section something beyond the clear intention of Congress, as expressed in the provision itself. We reproduce with approval the following excerpts from the comment of the Senate itself:
The plain wordings of RA 9369 (that amended RA 8436) commands that the 2010 elections shall be fully automated, and such full automation is not conditioned on “pilot testing” in the May 2007 elections. Congress merely gave COMELEC the flexibility to partially use the AES in some parts of the country for the May 2007 elections.
Lest it be overlooked, an AES is not synonymous to and ought not to be confused with the PCOS. Sec. 2(a) of RA 8436, as amended, defines an AES as “a system using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing and transmission of election results, and other electoral processes.” On the other hand, PCOS refers to a technology wherein an optical ballot scanner, into which optical scan paper ballots marked by hand by the voter are inserted to be counted. What may reasonably be deduced from these definitions is that PCOS is merely one of several automated voting, counting or canvassing technologies coming within the term AES, implying in turn that the automated election system or technology that the Comelec shall adopt in future elections need not, as a matter of mandatory arrangement, be piloted in the adverted two highly urbanized cities and provinces.
In perspective, what may be taken as mandatory prerequisite for the full automation of the 2010 regular national/ local elections is that the system to be procured for that exercise be a technology tested either here or abroad. The ensuing Section 8 of RA 8436, as amended, says so.
SEC 12. Procurement of Equipment and Materials.– To achieve the purpose of this Act, the Commission is authorized to procure, xxx, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities, and other services, from local or foreign sources xxx. With respect to the May 10, 2010 elections and succeeding electoral exercises, the system procured must have demonstrated capability and been successfully used in prior electoral exercise here or abroad. Participation in the 2007 pilot exercise shall not be conclusive of the system’s fitness. (Emphasis supplied).
While the underscored portion makes reference to a “2007 pilot exercise,” what it really exacts is that, for the automation of the May 2010 and subsequent elections, the PCOS or any AES to be procured must have demonstrated its capability and success in either a local or a foreign electoral exercise. And as expressly declared by the provision, participation in the 2007 electoral exercise is not a guarantee nor is it conclusive of the system’s fitness. In this regard, the Court is inclined to agree with private respondents’ interpretation of the underscored portion in question: “The provision clearly conveys that the [AES] to be used in the 2010 elections need not have been used in the 2007 elections, and that the demonstration of its capability need not be in a previous Philippine election. Demonstration of the success and capability of the PCOS may be in an electoral exercise in a foreign jurisdiction.” As determined by the Comelec, the PCOS system had been successfully deployed in previous electoral exercises in foreign countries, such as
Ontario, Canada; and , albeit Smartmatic was not necessarily the system provider. But then, RA 9369 does not call for the winning bidder of the 2010 automation project and the deploying entity/provider in the foreign electoral exercise to be one and the same entity. Neither does the law incidentally require that the system be first used in an archipelagic country or with a topography or a voting population similar to or approximating that of the New York, USA . Philippines
At any event, any lingering doubt on the issue of whether or not full automation of the 2010 regular elections can validly proceed without a pilot run of the AES should be put to rest with the enactment in March 2009 of RA 9525, in which Congress appropriated PhP 11.301 billion to automate the 2010 elections, subject to compliance with the transparency and accuracy requirements in selecting the relevant technology of the machines, thus:
Sec. 2. Use of Funds.– x x x Provided, however, That disbursement of the amounts herein appropriated or any part thereof shall be authorized only in strict compliance with the Constitution, the provisions of [RA] No. 9369 and other election laws incorporated in said Act as to ensure the conduct of a free, orderly, clean, honest and credible election and shall adopt such measures that will guaranty transparency and accuracy in the selection of the relevant technology of the machines to be used on May 10, 2010 automated national and local elections. (Emphasis added.)
It may safely be assumed that Congress approved the bill that eventually became RA 9525, fully aware that the system using the PCOS machines were not piloted in the 2007 electoral exercise. The enactment of RA 9525 is to us a compelling indication that it was never Congress’ intent to make the pilot testing of a particular automated election system in the 2007 elections a condition precedent to its use or award of the 2010 Automation Project. The comment-in-intervention of the Senate says as much.
Further, the highly charged issue of whether or not the 2008 ARMM elections––covering, as NCC observed, three conflict-ridden island provinces––may be treated as substantial compliance with the “pilot test” requirement must be answered in the affirmative. No less than Senator Richard J. Gordon himself, the author of the law, said that “the system has been tried and tested in the ARMM elections last year, so we have to proceed with the total implementation of the law.”
We note, though, the conflicting views of the NCC and ITFP on the matter. Suffice it to state at this juncture that the system used in the 2008 ARMM election exercise bears, as petitioners to an extent grudgingly admit,  a similarity with the PCOS. The following, lifted from the Comelec’s comment, is to us a fair description of how the two systems (PCOS and CCOS) work and where the difference lies:
xxx the elections in the [ARMM] utilized the Counting Center Optical Scan (CCOS), a system which uses the Optical Mark Reader (OMR), the same technology as the PCOS.
Under the CCOS, the voters cast their votes by shading or marking the circles in the paper ballots which corresponded to the names of their chosen candidates [like in PCOS]. Thereafter, the ballot boxes were brought to the counting centers where they were scanned, counted and canvassed.
xxx Under the PCOS, the counting, consolidation and canvassing of the votes are done at the precinct level. The election results at the precincts are then electronically transmitted to the next level, and so on. xxx PCOS dispenses with the physical transportation of ballot boxes from the precincts to the counting centers.
Moreover, it has been proposed that a partial automation be implemented for the May 2010 elections in accordance with Section 5 of RA 8436, as amended by RA 9369 instead of full automation. The Court cannot agree as such proposition has no basis in law. Section 5, as worded, does not allow for partial automation. In fact, Section 5 clearly states that “the AES shall be implemented nationwide.” It behooves this Court to follow the letter and intent of the law for full automation in the May 2010 elections.
Pilot Testing Not A Pre-condition to Full Automation
Pilot Testing Not A Pre-condition to Full Automation