Friday, May 14, 2010

Corona's Appointment Ties Noynoy's Hands

In clear disregard of the incoming president's prerogative to appoint the next chief justice, outgoing president and incoming congresswoman Gloria Macapagal-Arroyo (GMA) displayed once again her stubbornness by appointing her former chief of staff and spokesperson, now Supreme Court Justice Renato Corona as the next chief justice.

While De Castro v. Judicial and Bar Council has cleared the way for GMA in appointing the next chief justice, courtesy and prudence dictate that she should have let the incoming president have the privilege of appointing the replacement of Chief Justice Reynato Puno, who is set to retire on Monday. The absence of a chief justice will in on way hamper the operation of the high court, it being a collegial body where each member equally exercises judicial functions in collaboration with the others. Besides, an acting chief justice can always be designated in the interim as has happened in the past where the most senior member of the court assumes the role pending the appointment of a chief justice.

GMA's haste in appointing the new chief justice, with only less than two months before her term expires, is once again lending credence to apprehensions of another sinister plot in the making. Just like the no-el scenarios - born out of MalacaƱang's questionable conduct and pronouncements - this appointment will once more stir our imaginations and make us conclude that GMA is making the final touches to her carapace that will protect her against future prosecutions, especially so that the presidential front-runner Noynoy Aquino has promised to launch an investigation into the allegations of wrongdoing during her administration. And who better to protect her than an old associate like Renato Corona, who has closely worked with her even while she was still a vice president.

But GMA does not only appear to serve her interest in this appointment. She has also put the heir-apparent to the presidency on the spot. Knowing that Aquino has publicly announced before that he will not recognize a GMA-appointed chief justice, the appointment appears to be pitting Noynoy against the Supreme Court (which is packed with GMA appointees) early on in his presidency.

After all is said and done, however, the appointment of Renato Corona has effectively tied the hands of Noynoy. The Supreme Court itself has already spoken that GMA can make the appointment. For Noynoy to disregard such appointment once he assumes power would not only be a legal dent on his young administration, but also antagonize the Supreme Court whose members will not take kindly the embarrassment that will befall one of their own.

If GMA has not seen fit to exercise courtesy and prudence, that's no reason for Noynoy to do the same. Nothing will be gained except to nurse a bruised ego by not recognizing the appointment, however distasteful the manner it has been made. Six years is a long time to be waging losing battles in the Supreme Court.
(Photo Courtesy of

Wednesday, May 5, 2010

Legal and Political Ramifications of Postponing the Elections

The glitches on the voting machines' memory cards found during Monday's mock polls have generated calls for either postponement of the May 10 elections or reverting it to manual voting. Monday's exercise has further heightened the public's fear of a rigged or failed elections, and the Comelec-Smartmatic assurance has not helped in assuaging this fear.

As of this writing, Smartmatic (the company awarded with automating the May 10 polls) is rushing the reconfiguration of the 76,340 defective compact flash (CF) cards - which contain the program for the voting machines to work - in time for the final testing on May 7. There is, however, a well-founded fear that this might not be done, or even if done, the result might still be suspect, considering that it took Smartmatic more or less two months to initially reconfigure these CF cards for the May 10 polls compared to the two or three days Smartmatic will do the second reconfiguring to correct the errors.

No less than the president's top election lawyer, Romulo Macalintal, has called for postponing the elections and even went as far as withdrawing as the president's counsel if only to stress his seriousness. He argues that the Omnibus Election Code (OEC) empowers the Comelec to postpone the election if for some reason it becomes impossible to hold, and proposes that a 15-day postponement would be reasonable to give Comelec more time to prepare.

Constitutional Commissioner Fr. Joaquin Bernas, however, doubts the legality of Comelec's power to postpone under the OEC. He believes the OEC merely empowers the Comelec to postpone in local, but not in national election.

Although the Constitution sets the national election on the second Monday of May, it allows its postponement when a law to this effect is passed by Congress. Given, however, the lack of time to convene Congress, not to mention the preoccupation of many of its members on the campaign trail and the improbability of mustering enough favorable votes, it seems almost impossible now that such a law can still be passed.

On the other hand, the Concerned Citizens Movement, which sought to stop the automated election but failed to do so in Roque v. Comelec, has filed a petition anew with the Supreme Court to hold the election under the manual system for fear of a failed election under the automated system. It is unlikely, however, that the Supreme Court will give the petition due course. For one, the case or controversy requirement that will move the high court to entertain the petition is missing. While the automated election system (AES) has experienced glitches during its testing, this alone does not meet the requirement of an actual case or controversy where conflicting legal rights susceptible of judicial resolution are present. Besides, the question on the legality of the automation law has already been passed upon by the court in Roque v. Comelec.

Other sectors, uncluding some presidential candidates, remain firm in their position that the May 10 elections should push through as scheduled. They voice fear that the postponement of the elections will only serve the president's plan of overstaying in power. MalacaƱang, of course, is wise to distance itself from postponing the elections and the president's prompt acceptance of Macalintal's withdrawal seems to reinforce the administration's lack of interest in delaying the elections. And the Comelec is certainly unwilling to receive the ire of those against a No-el scenario by steadfastly claiming that the elections will push through and can fix the AES hiccups before Monday. After all, if the AES fails the fault cannot be solely attributed to it as it is merely implementing a law passed by Congress.

Postponement of not, the country may be getting itself into a catch-22 situation. If the elections proceed as scheduled, the probability of failure is not at all unlikely since no one knows what other glitchy creatures will emerge from the murky waters of an untested AES come Monday. To be sure, no one (whether Comelec, Smartmatic or even IT practitioners) has foreseen that the CF cards of the voting machines will fail to read and accurately count votes for other positions, despite Smartmatic's experiences in implementing an AES in other countries, such as in Curacao and Venezuela. And it is without a doubt that there will be areas where the voting machines will fail to transmit results electronically. In a country like ours where the IT infrastructure is not developed in several areas this is a given. In other words manual voting in lieu of automated voting will certainly take place. It's just a question of how much will be the extent of it.

If it comes to the point that manual voting becomes widespread, it is highly probable that the results will not be known after the term of the president and her constitutional successors ends. Consider this: the 80,000 clustered precincts around the whole country under the AES have resulted in about 600 to even 1,000 voters per precinct, compared to the about 200 voters per precinct in the past. If manual voting is resorted to in the event of computer problems, one could only imagine how long will the voting take place. Long after the legally mandated closing of voting has passed more voters would still be unable to vote, resulting in their disenfranchisement. To avoid this, declaration of failure of elections is the only viable option and in the meantime the clock is ticking, and power vacuum beckons.

It is not yet late for our leaders - administration and opposition alike - to come together and sit down for a contingency measure in the event of failure of election. They should as soon as possible provide for a transition government, a caretaker if you will, that will see the country through this first nationally-automated electoral exercise. President Macapagal-Arroyo should initiate this move to cast any doubt on her motives. Who knows, this might just be the legacy - a postitive one, that is - that she will leave when she steps down from office on June 30th. Until now, however, the president has yet to make any pronouncement on the eventuality of a failed election and the public is being kept in the dark as to what contingency measures she has.