Last of Two Parts (for Part 1, click here)

MANILA - All the speculation about a massive failure of elections is getting on the nerve of the Commission on Elections (Comelec).
 
“Instead of building up confidence, they are destroying it,” Comelec Commissioner Nicodemo Ferrer told abs-cbnnews.com/Newsbreak. “They keep insisting on it, and I’m inclined to believe there is something sinister here.”
 
The Comelec’s consolation is that electoral reform stakeholders, like the Parish Pastoral Council for Responsible Voting (PPCRV) and Consortium on Electoral Reform (CER), are in full support of automation.

“Automation will not eliminate cheating, but it will make life harder for election cheats,” CER chief Ramon Casiple said.  

Poll automation will do away with the manual counting and canvassing of votes, which is vulnerable to cheating. Machines are supposed to eliminate the human factor in reading, tallying and consolidation of votes. The results are transmitted electronically, which should eliminate the practice of "dagdag-bawas," or the addition or subtraction of votes. 

Delays in poll automation

With elections less than 9 months away, preparations for poll automation screeched to a halt following the case filed by UP law professor Harry Roque for the Supreme Court to invalidate the contract. The SC eventually gave its go signal for poll automation in its decision released last September 11.
 
The SC case raised key questions about automation, among them, whether manual counting of votes is allowed in case the machines bog down.
 
Roque argued that the Omnibus Election Code only deals with manual counting of votes and manual canvassing. Roque pointed out that Republic Act (RA) 9369, or the Automation Law, allegedly did not specify manual counting of ballots in case the machines fail.
 
Some justices during the SC hearing appeared to agree with Roque.

But Comelec law department director Ferdinand Rafanan refuted Roque’s assertion. He said RA 9369 provides for a manual count of the ballots in case of failure of the machines. 

Contingency plan

“Roque’s arguments are bordering on bad faith,” Rafanan said. He said the manual counting of votes, in case of unforeseen circumstances, is part of the continuity or contingency plan under the law.

Rafanan said the Comelec and the winning consortium, Smartmatic-Total Information Management (TIM), are now working on a contingency or a back-up plan for any unforeseen scenario. “They are studying it very thoroughly,” he said.

While cautious in the implementation of full automation, election lawyer Sixto Brillantes agreed that there is no need to pass another law that would mandate manual counting of ballots in a computerized set-up. Brillantes said the Comelec has enough powers to issue guidelines that would address machine failure.

Brillantes noted that in the automated 1998 elections in the Autonomous Region in Muslim Mindanao, in the instances where the machines conked out, the votes were counted manually.
 
“There is precedence already,” he said.

Brillantes believes that massive failure of elections is not a remote possibility. But while he agreed that the contingency plan could work, there is no assurance that the winning candidates will be proclaimed on time so as to avoid a constitutional crisis.

Role of the Senate

Given a worst-case scenario and there is a leadership vacuum caused by a massive failure of elections, lawyer Carlos Medina of electoral reform groups, Legal Network for Truthful Elections (LENTE) and One Voice, said the Senate should intervene to prevent a Constitutional and political crisis.

Medina, who teaches constitutional law in Ateneo, said that technically, the 23-man Senate exists until June 30, 2010, the date of the transition of power.

Since current Senate President Juan Ponce Enrile’s term expires on June 30, 2010, Congress can call a special election before the June 30 deadline to elect a new Senate president.

“The Senate should provide the contingency in case of massive failure of elections, however remote," Medina said. The term of the new Senate president, who will assume as acting President, expires years later.

The election of a new Senate president before June 30, 2010 assures a constitutional successor in the event that no President, Vice-President, and House members are proclaimed.

It addresses the question of whether the remaining 12 senators, whose terms end in June 2014, can validly elect a new Senate president. It avoids the legal debate on whether there is a quorum in the upper house to elect the Senate president.

“There is a constitutional process that can be applied--if only the parties would act responsibly,” Medina said.

But this is easier said than done, especially since what would be at stake is the chance to be the chief executive.

“For sure, there will be bloodbath in the Senate for that chance to become acting president,” Brillantes said.

(Part 1: Poll automation: Disaster of New Era?)