When is there a failure of election?

We only have 17 more days to go before the ARMM election.   This coming ARMM election will be a milestone in our election history because of the adoption of automation to expedite and facilitate the election process.  As of this writing, the test run of the automation system of COMELEC was very smooth.  However, I can’t help to be sceptic on whether during the election day, the system will also run smoothly considering other social and political factors that usually occur during election day.  At any rate, let us give the COMELEC the benefit of the doubt and kudos to them for finally undertaking this election reform long overdue.  

Expect that during the election date, the 3Gs (Guns, Goons and Gold) that traditionally disrupts the conduct of free, honest, ordely and credible election will again be employed by unscrupulous politicians.  For sure, the COMELEC will have its hand busy with petitions for suspension and for declaration of failure of election in ARMM areas.  But what exactly constitute a failure of election?  On what grounds failure of election is declare?

To help us understand, let me see what the law provides…

Section 6 of Omnibus Election Code says,

Sec. 6.  Failure of election. - If, on account of force majeure, violence, terrorism, fraud or other analogous causes the election in any polling place has not been held on the date fixed or had been suspended before the hour fixed by the law for the closing of the voting, or 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, the Commission shall, on the basis of verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect.

 On my own understanding of the law, there are 3 instances when there is a failure of election.

1.  The election in any polling place has bot been held on the date fixe by law.

Ibig sabihin, walang nangyaring election sa lugar at araw na itinatakda ng batas.

2.  The election was held but was suspended before the hour fixed by law for the closing of the voting.

Ibig sabihin, may nangyaring election sa lugar at araw na itinatakda ng batas pero bago ang oras ng pagsasara ng voting na itinakda ng batas, ang nasabing election ay na suspend.

3.  The election was held but after the voting and during the preparation and transmission of election returns or in the custody or canvass thereof, such election results in a failure to elect.

Ibig sabihin, nangyari ang election pero noong inihahanda ang election returns, o habang nakatago ito o habang me canvassing, nagresulta ito ng “failure to elect”.  Ang failure to elect ay nangangahulugang walang naihalal.

The causes of these 3 instances must be due to violence, terrorism, fraud or force majeure or in my mnemonic device (VIOLET FF)

Also in Mitmug vs. Commission on Elections, 230 SCRA 54, the SC said that before COMELEC can act on a verified petition for declaration of failure of election, there must be two conditions that must concur:

• no voting has taken place in the precincts on the date fixed by law, or even if there was voting, the election nevertheless resulted in failure to elect; and (ibig sabihin, walang electionna nangyari sa presinto sa araw itinakda ng batas or kung me election man,nag resulta ito ng failure to elect)
• the votes that were not cast would affect the result of the election (ibig sabihin, ang mga votes na di na cast ay makaka apekto sa resulta ng election.  Baka masyadong madami ang mga botante na hindi nakaboto.)

To learn from the past, let us review the cases when the COMELEC did not grant the petition for declaration of failure of election.

1.  Typoco vs COMELEC 

Massive fraud and irregularities on the preparation of election returns by only one person.  The COMELEC opined that election protest is the proper remedy of Typoco and not petition for the declaration of failure of election.

2.   Batabor vs COMELEC

Allegation on the petition that supporters were not able to vote during the elction.  Also the proper remedy is election protest.

Justice Sandoval-Gutierrez, the ponente, said in this case that, 

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.

In the case of Batabor vs COMELEC, the election proceeded and the electorate was not muted, hence, there was no failure of election.