Advisory Bodies in Philippine Automated Elections: Chong v. Senate

The Philippines has used an automated election system (AES) since the 2010 polls, but the machinery behind it involves more than just the Commission on Elections (COMELEC). Two bodies — the Advisory Council (AC) and the Technical Evaluation Committee (TEC) — were created by law to help the COMELEC choose and verify election technology. In Chong v. Senate of the Philippines (G.R. No. 217725, May 31, 2016), the Supreme Court settled whether these bodies illegally encroach on the COMELEC's constitutional mandate. It held they do not.

What the case was about

Glenn Chong and the Ang Kapatiran Party filed a petition before the Supreme Court just months before the 2016 elections. They argued that Sections 8, 9, 10 and 11 of Republic Act No. 8436, as amended by Section 9 of Republic Act No. 9369, were unconstitutional. Their theory: by creating the AC and the TEC, Congress had undermined the COMELEC's exclusive power to enforce and administer election laws under Section 2(1), Article IX-C of the 1987 Constitution.

The petitioners also questioned the AC's recommendation to reuse the Precinct Count Optical Scan machines and other equipment in the 2016 elections, calling it a "patent nullity."

What the Advisory Council and TEC actually do

Under the law, the AC is convened not later than eighteen months before a scheduled electoral exercise and deactivated six months after canvassing is completed. Its role is to recommend the most appropriate, secure, applicable and cost-effective technology for the AES. It also participates as a non-voting member in the bidding and steering committees, and provides advice on systems planning, testing and risk management.

The TEC, on the other hand, is convened within ten days after the effectivity of R.A. No. 9369. Its function is to certify — through an established international certification entity chosen by the COMELEC from the AC's recommendations — that the AES, including its hardware and software, is operating properly, securely and accurately. This certification must be issued not later than three months before the electoral exercise.

Why the Court upheld the law

The Supreme Court dismissed the petition, finding no constitutional violation. Its reasoning rested on three main points.

First, the AC and TEC's functions are merely advisory and recommendatory. The Court noted that under Section 9 of R.A. No. 8436, the AC's actions are "in all instances, subject to the approval and final decision of the COMELEC." The TEC's certification role is similarly limited to verification, not decision-making.

Second, the law itself contains a safeguard. The Court pointed to a provision in Section 9 stating that nothing in the Council's role "shall be construed as an abdication or diminution of the Commission's authority and responsibility for the effective development, management and implementation of the AES." The Court observed that the petitioners had omitted this paragraph when quoting the provision in their petition.

Third, the AC and TEC are not permanent bodies. The AC is convened before elections and deactivated after canvassing; the TEC's certification is tied to a specific pre-election timeline. They exist to assist, not to replace, the COMELEC.

The Court also emphasized that the petitioners failed to overcome the presumption of constitutionality. Every law is presumed valid, and to strike one down, a petitioner must show a clear and unequivocal breach of the Constitution. The Court added that it had already upheld the constitutionality of R.A. No. 9369 in Barangay Association for National Advancement and Transparency (BANAT) Party-List v. COMELEC (G.R. No. 179271, April 2009), albeit on a different ground.

The principle behind the ruling

The decision clarifies that Congress may create bodies that check and balance the COMELEC without violating its independence. The Court described the AC and TEC as mechanisms to ensure the COMELEC is guided by experts in technology and to ensure clean elections by having disinterested parties monitor the procurement of election systems. The COMELEC's power to enforce and administer election laws remains exclusively with the COMELEC; the AC and TEC "may not substitute its own opinion for the judgment of the COMELEC."

Practical takeaways

• The Advisory Council and Technical Evaluation Committee are constitutional. They do not diminish the COMELEC's mandate; they support it.
• The AC's recommendations and the TEC's certifications are not binding on the COMELEC. The COMELEC retains final decision-making authority over the automated election system.
• The law itself expressly states that the AC's role does not amount to an abdication or diminution of the COMELEC's authority.
• The AC and TEC are temporary bodies, convened and deactivated according to statutory timelines tied to the electoral cycle.
• A law is presumed constitutional. A petitioner must present substantial evidence of a clear constitutional breach to have it struck down.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.