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. Malacañang, 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.

No Fully-Automated Elections in 2010

UP Law Professor Harry Roque and the Concerned Citizens Movement (CCM) have been at the receiving end of criticisms ever since they filed a petition before the Supreme Court(SC)questioning the legality of fully-automated elections in May 2010. Although clearly expressing their position that they favor automated elections, Harry Roque and CCM's move is seen as abetting the agents of electoral fraud who thrive under our antiquated manual election system.

One of the major objections posed by Roque and CCM is the holding of a nationwide automated elections in May 2010. According to Roque and CCM, Republic Act 9369 (law amending the Poll Modernization Act or RA 8436) mandates Comelec to pilot test poll automation first by holding it in selected cities and provinces only for the coming national and local elections. A closer reading of RA 9369 will show that Roque and CCM are merely acting as proponents of the rule of law.

We were led to think that Congress finally crafted a mandate for full automation in the coming 2010 elections, but a review of the amendatory law will reveal that it provides for a hybrid election (partly automated and partly manual) only. The pertinent section of the law that justifies this assertion is 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, whether paper-based or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises: 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: Provided, further, That local government units whose officials have been the subject of administrative charges within sixteen (16) month prior to the May 14, 2007 election shall not be chosen: Provided, finally, That no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. The term local government unit as used in this provision shall refer to a highly urbanized city or province. In succeeding regular national or local elections, the AES shall be implemented nationwide."

Notice the "provided clause" in the foregoing. It talks about the conduct of national and local elections in May 2010, which provides for automated elections (AES) in at least two highly urbanized cities and two provinces for each of the country's major islands. Comelec is given the authority to choose the appropriate cities and provinces, subject to the following criteria: (1) the Sanggunian or local legislative body of the chosen cities and provinces must consent to their designation for the conduct of automated elections; and (2) the officials of the designated cities and provinces must not have been administratively charged within 16 months before the May 2007 elections.

In other words, the amendatory law mandates Comelec to conduct automated elections in 2010 in certain selected areas only. It may be argued that the word "at least" in section 6 authorizes Comelec to hold automated elections in more than two cities and provinces as such phrase only sets the minimum. And more than two could practically mean covering all cities and provinces in the country which would in fact make automation nationwide. But that would be reading into the law something not contemplated by it. First, that would mean requiring the consent of the Sanggunian of every city and province in the country, which is of course ridiculous for why would the law prescribe such consent requirement if after all every city and province would be involved. Besides, the provinces and cities could clearly defeat automation by withholding consent. Second, a nationwide automation is clearly not contemplated by limiting it to cities and provinces whose officials have not been subjected to administrative charges before the 2007 elections. Surely, there are cities and provinces the officials of which have been administratively charged.

The last sentence of section 6 states that AES will be implemented on a nationwide basis in regular elections after the 2010 elections. Now if the 2010 elections are meant to be fully-automated, why would Congress even bother inserting this last sentence? The clear implication is that a fully-automated election is only allowed in regular elections succeeding the 2010 elections.

Another provision of RA 9369 which reveals the intent of Congress on partial automation is the following section:

SEC. 31. Section 25 of Republic Act No. 7166 is hereby amended to read as follows:

"Sec 25. Manner of Counting Votes. - In addition to the requirement in the fourth paragraph of Section 12 of the Republic Act No. 6646 and Section 210 of the Omnibus Election Code, in reading the official ballots during the counting, the chairman, the poll clerk and the third member shall assume such positions as to provide the watchers and the members of the public as may be conveniently accommodated in the polling place, an unimpeded view of the ballot being ready by the chairman, of the election return and the tally board being simultaneously accomplished by the, poll clerk and the third member respectively, without touching any of these election documents. The table shall be cleared of all unnecessary writing paraphernalia. Any violation of this requirement shall constitute an election offense punishable under Section 263 and 264 the Omnibus Election Code.
"The chairman shall first read the votes for national positions.
"Any violation of this Section, or its pertinent portion, shall constitute an election offense and shall be penalized in accordance with Batas Pambansa Blg. 881.

The above section, as well as section 12 of RA 6646 or the Electoral Reforms Law of 1987 and section 210 of the Omnibus Election Code as referred to therein, provide for the manner in counting of votes at the precinct level under a manual election system. It is accomplished with the chairman of the Board of Election Inspectors tediously reading the names of all candidates voted in every ballot. If it were the intention of Congress to provide for full automation come 2010, the above section 31 would surely be out of place since in an automated election either the ballots are brought to a central counting center where they are fed to counting machines or the votes on every ballot are counted as they are fed to voting machines which will then electronically transmit the results for consolidation, or by any other methodology as the voting machines permit and as determined by Comelec, but certainly it will not be in the antiquated manner provided by section 31, which is prone to cheating and election protests.

Section 31 is clearly intended to govern the manner of counting of votes in areas where AES is not implemented in 2010. These will be the cities and provinces which will not be designated by Comelec for computerized elections. And this is only possible in partially-automated elections. As for areas covered by AES, Comelec is authorized under section 18 to provide for the procedure in the automated counting of votes.

If the 2010 elections proceed under a fully automated mode, as it is being pursued by Comelec right now, losing candidates could find refuge under RA 9369 in asking for the nullification of the elections. Imagine the results of an entire election being invalidated for having been conducted in violation of law. This would be a surefire recipe for a constitutional crisis of huge magnitude that would throw the whole country in chaos. So Roque and CCM are actually doing us a favor in questioning as early as now the legality of a fully-automated elections in 2010.

But there is still hope for nationwide automated elections even if the SC were to rule against full automation in 2010. Congress could easily amend RA 9369 by removing the partial and qualified application of the AES as it now stands. If President Macapagal-Arroyo is really true to her pronouncements of favoring fully-automated elections in 2010, she could as easily certify as urgent an amendatory bill that Congress would pass.

Now if Roque and CCM are proven wrong, as I will be, then we could all concentrate on becoming vigilant to ensure the conduct of honest, orderly and peaceful fully-automated elections in May 2010.