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.

Dimensions of a Failed Election and What GMA Needs to Do

As the May 10 elections near the failure of elections anxiety grows even stronger. This fear acquires special significance because for the first time in Philippine history the elections will be automated - at least on a nationwide basis, since we already had a taste of computerized polls during the ARMM elections. In this coming elections, however, the stakes are high as all positions, from president down to the councilor of the smallest municipality, will be voted for.

Failure of elections is not something new in our electoral lexicon. Losing candidates have at various times in the past utilized this as a legal tool to annul the proclamation of their rivals. More often than not, however, this legal argument has been met with disapprobation from the Supreme Court. The High Court has sustained this claim only in the clearest cases of electoral frauds.

Section 6 of the Omnibus Election Code identifies the instances under which the Commission on Elections (Comelec) can declare a failure of elections, which the Supreme Court in Soliva v. Comelec, G.R. No. 141723 (April 20, 2001) has enumerated in the following manner:

Section 6 of the Omnibus Election Code contemplates three instances when the COMELEC may declare a failure of election and call for the holding of a special election. First, when the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous cases. Second, when the election in any polling place had been suspended before the hour fixed by law for the closing of the voting. And third, after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect.

In the context of automated polls, many fear failure of elections with computers breaking down or not transmitting election results. The glitches experienced in the recent absentee voting in Hong Kong have only served to heighten this fear. In Roque v. Comelec, however, the Supreme Court dismissed this fear in denying the petition to declare the automation illegal. The Supreme Court said the automation law provides manual voting as a contingency measure in the event computers break down. The problem with this, however, is that if manual voting is resorted to in case of computer glitches, elections in affected precincts may take unusually longer and pass the closing of voting, especially so that precincts are now clustered with registered voters numbering as many as 1,000 in a precinct. Many voters will end up not being able to cast their votes.

Another scenario is the ever-looming threat of electoral fraud. Opponents of automation claim the resurgence of Garci-type cheating, wherein Comelec insiders will rig the PCOS machines by configuring them to make the favored candidates win. Inquirer columnist Amando Doronilla, however, refuses to accept this possibility in his February 16 article Who Will be the Evil Genius? According to him, there is none among the current presidential candidates (except perhaps Gilbert Teodoro via Pres. Gloria Macapagal-Arroyo) who is in a position of authority to direct the manipulation by Comelec. Teodoro and Comelec chair Jose Melo, he says, would not do it. Doronilla argues that President Macapagal-Arroyo has clearly no need for this to further her congressional bid, considering her almost guaranteed victory among her town mates.

If elections fail - because of massive cheating or breakdown of voting machines or both - and the problem is not resolved before the term of office of the president and her constitutional successors ends on June 30, there would clearly be no one legally authorized to lead the country after this date. Since GMA would be the last person to hold the reins of power before the crisis begins, I would suppose she would stay at the helm in the mentime. Now, whether or not she will do so for good remains to be seen.

Although most GMA critics would conclude that she will take this opportunity to remain in power for good, I humbly believe otherwise. If GMA were to perpetuate herself in power she would certainly meet stiff opposition both domestically and internationally, not least of which is the US. With all the military exercises the US has been conducting in the Philippines and the millions of dollars it pours into them, the Philippines is still much within the radar of US global interests. With all its worries on terrorism, the need to check an ever expanding China, and an adventurous North Korea, the last thing the US needs is a failed or weakened Philippine state.

On the local front, a permanent GMA tenancy in Malacañang would elicit thunderous protests from the opposition and civil society groups. Coups are not farfetched. In short what will happen will be nothing short of a civil unrest; even worse, an uprising that could throw the whole country into a bloody revolution. This very gruesome scenario is something that will make Washington even more vigilant in preventing a Marcosian reprise by GMA. With all her faults, I don't think GMA is ready to take this dangerous path.

GMA can, however, do one last thing that will mark her legacy. She could remain in power - a sort of hold-over president - in the event of a failed election. But in doing so, she must assure the public that it will only be temporary until the elections are re-held and completed. By law, the Comelec is mandated to re-hold elections in the event of failure at the first instance. This would entail huge expense and effort, but this is the only way that chaos can be averted.

The alternative of her not staying and vacating office when no successor has been proclaimed and sworn would be more dangerous. Power grabbers from all stripes will try to outdo each other to succeed in power. There can be no illusion that this will happen peacefully. To be sure it will be a violent race to the top. On the other hand, if GMA were to hold-over, it will simply be a case of status quo. What will save the day is the assurance that she will give to the public that she will only be doing so to pave the way for a smooth transition of power.