Failure of Election?

A question I frequently hear these days is: What happens if there is failure of election? Worse yet, I also hear described various scenarios that can happen should there be failure of election.

Although I myself do not count the probability of a failure of national elections, it can be useful to try to understand what failure of election can mean.

The Omnibus Election Code, as a matter of fact, provides for various levels of situations of failure of election. The causes, according to the Code, can be “force majeure, violence, terrorism, fraud, or other analogous causes.” And the effect of these causes can be any one of various situations: (1) the election in any polling place has not been held on the date fixed, or (2) had been suspended before the hour fixed by law for the closing of the voting, or (3) 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. And in any of such cases the failure or suspension of election would affect the result of the election.

In these circumstances the Comelec is authorized by law to declare a failure of election if two conditions concur: (1) that no voting has taken place on the date fixed by law or even if there was, the election results in a failure to elect, and (2) the votes not cast would affect the result of the election.

But the power to declare a failure of election is so important that the Court prescribes the care with which the Comelec should exercise it. “The power to declare a failure of elections should be exercised with utmost care and only under circumstances which demonstrate beyond doubt that the disregard of the law has been so fundamental or so persistent and continuous that it is impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any certain result whatsoever; or that the great body of voters have been prevented by violence, intimidation and threats from exercising their franchise. There is failure of elections only when the will of the electorate has been muted and cannot be ascertained. If the will of the people is determinable, the same must as far as possible be respected.”

The Supreme Court cases involving failure of election, however, have dealt only with failure in local elections. For that matter, the language of the Omnibus Election Code can be read as referring only to localized failure. In these nervous times, however, when people speak of failure of election, what they are talking about is failure of national elections, and, specifically, of failure to have a proclaimed President by noon of next June 30. Talk about such situation is partly due to doubts about the novelty of the coming automated elections and partly due to distrust of the current administration. How does the law deal with such situation?

There is, of course, an order of succession in the Constitution for a situation when there is a vacancy at the beginning of the term of a President. The following are the rules to be followed at noon on June 30:

(1) If a President shall not have been chosen, the Vice President-elect shall act as President until a President shall have been chosen and qualified.

(2) If at the beginning of the term of the President, the President-elect shall have died or shall have become permanently disabled, the Vice President-elect shall become President.

(3) Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall act as President until a President or a Vice-President shall have been chosen and qualified.

(4) The Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified, in case of death, permanent disability, or inability of the officials mentioned in the next preceding paragraph.

The first thing that should be noted about these rules is that the outgoing President has no right to hold-over beyond noon of June 30. She must step down.

Second, Congress has not yet provided for a situation when none of those who are mentioned – Vice-President, Senate President, House Speaker – is in a position to fill the vacuum temporarily. Remember that Congress will not be in session on June 30.

Third, -- and this is a saving factor – there can be a Senate President after June 30. The current Senate President will finish his term on June 30. But a new Senate President can be elected before June 30 from among the twelve whose term will not end on June 30. (Why before June 30? Because after June 30 there will be no quorum in the Senate.) The Senators know that this is a very serious responsibility. The new Senate President can continue as such into the next term and act as President until the vacancy in the presidency is resolved.

But how long will it take for the vacancy to be resolved? The length or brevity of the waiting period will depend on the cause of the vacancy. In fact, whether the vacancy is terminable through constitutional procedure will also depend on what is causing it. The possible causes can be the same as those for local failure of election: “force majeure, violence, terrorism, fraud, or other analogous causes.” Let us just pray that no situation will arise which can usher in a military junta or even another People Power.

3 May 2010