Sen. Miriam Defensor Santiago, a constitutional law expert, told the Senate media that the Election Code does not allow postponement of elections nationwide, although it allows the Comelec to declare a failure of elections nationwide.
“There is a big difference between postponement of elections and declaration of failure of elections. In the case of postponement, the law allows it only in a political subdivision, such as a town or a province. In the case of failure of elections, the law allows it nationwide,” she said.
Santiago made the statement during an interview yesterday (Wednesday, 5 May 2010) with Senate media who were aboard the plane returning to Manila from Iloilo City, where Santiago joined a Nationalista Party rally.
“The key phrase is found in the Election Code, Section 5, which authorizes the postponement of elections in any political subdivision, emphasis on subdivision,” she said.
Santiago also cited the 1988 case of Dimaporo v. Comelec, where the Supreme Court ruled that the Comelec may postpone the elections only “in the province or locality concerned.”
Santiago also predicted that if election lawyer Romulo Macalintal has already filed his petition with the Comelec to postpone the elections for 15 days, that petition is “doomed,” for lack of time.
“Under R.A. No. 7166, only the Comelec en banc has the power to postpone an election. But it can only do so, after due notice and hearing to all interested parties. Between now and Monday, there is not enough time to serve notices, file oppositions, and present evidence,” she said.
Santiago said that Comelec yesterday (Wednesday) started distributing a “continuity plan,” as provided by the Automated Election Law.
“This continuity plan is designed in case of a systems breakdown or any such eventuality which shall result in the delay, obstruction, or nonperformance of the electoral process,” she said.
Santiago also said that unlike postponement of elections, the provision on failure of election allows the Comelec to call for a new election within 30 days after the failure of elections.
“If we proceed with the elections as scheduled, in case there is serious cause, the Comelec can still declare a failure of elections. The causes for the declaration of a failure of election may occur before, or after, the casting of votes or on election day,” she said.
Santiago said that in the 2010 case of Roque v. Comelec, the Supreme Court quoted Comelec chair Jose Melo, who said that a nationwide failure of elections is impossible.
“Under the principle of primary jurisdiction, if the courts or the Comelec have overlapping jurisdictions, the court prefers for the Comelec to first resolve the issues,” Santiago said.
Santiago also said that the Rules of Court provides a disputable presumption that official duty has been regularly performed, and hence, that the continuity plan distributed yesterday by the Comelec will serve to uphold the will of the people.
“Thus, the burden of proof will be on the petitioner. He has to present a preponderance of evidence to show that the reported lapses of the PCOS machines are not anecdotal, but either universal or preponderant. It will be extremely difficult for the petitioners to present evidence prior to election day,” she said.
Santiago also quoted the American election authority Floyd Mechem.
“Mechem said that the date of the election is a matter of substance. The date set by law must be substantially observed, or the election will be void. Substantial observation is enough, and slight variations will not invalidate the election. That is the case law,” she said.