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Showing posts with label powers and functions of COMELEC. Show all posts
Showing posts with label powers and functions of COMELEC. Show all posts

Monday, November 9, 2009

May the Commission on Elections Postpone or Continue Elections?

Does the Commission on Elections have the power to postpone or continue elections?


This question is raised after news leaked out the other day saying that the poll chief airs concern over the possible delay in the delivery and configuration of the of Precinct Count Optical Scan (PCOS), the machine that will count the ballot at the precinct level.


"I want to be sure that the machines will come on time.  Until I see it, I’m worried," Comelec chair Jose Melo told reporters in an interview.



The Commission on Elections expects the delivery of the first batch of 42, 200 PCOS machines in December, while the remaining 40,000 is to arrive in January.  


Although the poll officials say the preparations for the May 10, 2010 National and Local Elections are going smoothly, they have to be ready for major glitches coming up along the way.  


First, if the scheduled delivery of the PCOS machines pushes through smoothly, these machines have yet to undergo battery of tests before being configured for their respective precinct assignments.


"We’re still not out of the woods.  If we haven’t tested all the machines, what do we do?" Chairman Melo said, adding that if worse comes to worst, they would have to conduct a partial manual and partial automated elections.


Another development is now in the offing.  


A group called the Concerned Citizens' Movement is asking the High Court to nullify the P7.2 billion poll automation contract due to two "supervening events" after the Supreme Court upheld the validity of the deal.


In a 25-page supplemental motion filed by lawyer Harry Roque, the movement said the Smartmatic-Total Information Management (TIM) group violated the terms of its contract with the Commission on Elections (Comelec).


The petition said that Smartmatic-TIM had failed to come up with telecommunications facilities and charged that the consortium had subcontracted the manufacture of its counting machines.


While Smartmatic-TIM is supposed to ensure 100-percent coverage for the immediate transmission of election results from precincts nationwide, the petition said that a private study of the contract showed that it did not have the facilities to do this.


While the merits of case will still have to be determined by the High Tribunal, this query is raised:  "May the COMELEC postpone or continue elections?"


The answer is in the affirmative.  


As a matter of fact, in the case of Sanchez vs. Commission on Elections, (114 SCRA 454), the Supreme Court ruled that the Commission on Elections is authorized to declare a failure of election because of the terrorism that attended the counting of the votes and the preparation of the election returns.


Likewise, Section 5 of B.P. Blg. 881 provides that:  


"When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous cases of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision, the Commission, motu proprio or upon a verified petition by any interested party, and after due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall postpone the election therein to a date which should be 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 cessation of the cause for such postponement or suspension of the election or failure to elect."

Saturday, November 7, 2009

Can COMELEC Annul An Election?

The Commission on Elections (COMELEC) is vested with the power to enforce and administer all laws relative to the conduct of elections and to insure free, orderly, and honest elections.  Does its power include the authority to annul an election which may not have been free, orderly, and honest?


The Supreme Court, in holding that it does not include such authority, and that Article X, Section 2 of the 1935 Constitution [Guevara vs. Commission on Elections, 55 O.G. 1013] is merely preventive, said:


"It is intended to prevent any and all forms of election fraud or violation of the Election Law, but if it fails to accomplish that purpose, it is not the Commission on Elections that is charged with the duty to cure or remedy the resulting evil, but some other agencies of the Government.  The power to decide decisions involving the right to vote is expressly withheld from the Commission on Elections although, the right to vote is provided in the Election Law, the enforcement and administration of which is placed in the exclusive charge of the Commission.  Parallel to the withholding of such power from the Commission is the vesting in other agencies of the more inclusive power to decide all contests relating to the elections, returns and qualifications of the Members of Congress namely, the Electoral Tribunal of the Senate in the case of the senators, and the Electoral Tribunal of the House of Representatives in the case of the members of the latter.  Election contests involving provincial and municipal officials are entrusted to the courts."  [Nationalista Party vs. Commission on Elections, 85 Phil. 149]


Monday, September 7, 2009

Powers and Functions of COMELEC (Administrative Code of 1987)

POWERS and FUNCTIONS of the Commission on Elections
(As Provided by the Administrative Code of 1987)

In addition to the powers and functions conferred upon it by the Constitution, the Commission on Elections has the exclusive charge of the enforcement and administration of all laws relative to the conduct of elections, for the purpose of ensuring free, orderly, honest, peaceful and credible elections, as provided for by the Administrative Code of 1987.

The Code provides the following, to wit:

(1) Promulgate rules and regulations implementing the provisions of the Omnibus Election Code or other laws which the Commission is required to enforce and administer;

(2) Fix other reasonable periods for certain pre-election requirements in order that voters shall not be deprived of their right of suffrage and certain groups of rights granted them in the Omnibus Election Code;

Unless indicated in the Omnibus Election Code, the Commission is hereby authorized to fix the appropriate period for the various prohibited acts enumerated therein consistent with the requirements of free, orderly, honest, peaceful, and credible elections.

(3) Exercise direct and immediate supervision and control over national and local officials or employees, including members of any national or local law enforcement agency and instrumentality of the government required by law to perform duties relative to the conduct of elections, it may authorize CMT cadets, eighteen years of age and above to act as its deputies for the purpose of enforcing its orders; [see People vs. Basilla, 179 SCRA 87]

The Commission may relieve any officer or employee referred to in the preceding paragraph from the performance of his duties relating to electoral processes who violates the election law or fails to comply with its instructions, orders, decisions or rulings, and appoint his substitute.  Upon recommendation of the Commission, the corresponding proper authority shall suspend or remove from office any or all of such officers or employees who may, after due process, be found guilty of such violation or failure.

(4) During the period of the campaign and ending thirty days thereafter, when in any area of the country there are persons committing acts of terrorism to influence people to vote for or against any candidate or political party, the Commission shall have the power to authorize any member or members of the Armed Forces of the Philippines, the National Bureau of Investigation, the Integrated National Police or any similar agency or instrumentality of the government, except civilian home defense forces, to act as deputies for the purpose of insuring the holding of a free, orderly, honest, peaceful, and credible elections;

(5) Publish at least ten (10) days before an election in a newspaper of general circulation certified data on the number of official ballots and election returns and the names and address of the printers and the number printed by each;

(6) Refuse, motu proprio or upon a verified petition, to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the office which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate;

(7) Postponemotu proprio or upon verified petition and after due notice and hearing whereby all interested parties are afforded equal opportunity to be heard, the election to a date which should be reasonably be 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 for such postponement or suspension of the election or failure to elect, when for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes the holding of a free, orderly, honest, peaceful, and credible election should become impossible in any political subdivision.

(8) Call for the holding or continuation of election not held in any polling place where on account of force majeure, violence, terrorism, fraud or other analogous causes the election has not been held on the date fixed, or had been suspended before the hour fixed by 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.  Such call should be on the basis of a verified petition by any interested party and after due notice and hearing, and the new date should be reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty (30) days after the cessation of the cause of such postponement or suspension of the election or failure to elect.

(9) Call a special election to elect the member to serve the unexpired portion in case a vacancy arises in the Senate or in the House of Representatives eighteen (18) months or more before a regular election, to be held within sixty (60) days after the vacancy occurs;

(10) Summons the parties to a controversy pending before it, issue subpoena duces tecum and take testimony in any investigation or hearing before it, and delegate such power to any officer of the Commission who shall be a member of the Philippine Bar. In case of failure of a witness to attend, the Commission, upon proof of service of the subpoena to said witness, may issue a warrant to arrest the witness and bring him before the Commission or the officer before whom his attendance is required.

Any controversy submitted to the Commission shall, after compliance with the requirements of due process, be immediately heard and decided by it within sixty (60) days from the date of its submission for decision or resolution.  No decision or resolution shall be rendered by the Commission either en banc or by division unless taken up in a formal session properly convened for the purpose.

The Commission may, when necessary, avail itself of the assistance of any national or local enforcement agency and/or instrumentality of the government to execute under its direct and immediate supervision any of its final decisions, orders, instructions or rulings.

(11) Punish for contempt according to the procedure and with the same penalties provided, in the Rules of Court. Any violation of any final and executory decision, order or ruling of the Commission shall constitute contempt thereof;

(12) Enforce and execute its decisions, directives, orders and instructions which shall have precedence over those emanating from any other authority, except the Supreme Court and those issued in habeas corpus proceedings;

(13) Prescribe the forms to be used in the election, plebiscite or referendum, recall or initiative;

(14) Procure any supplies, equipment, materials or services needed for the holding of the election by public bidding; but if it finds the requirements of public bidding impractical to observe, then by negotiations or sealed bids, and in both cases, the accredited parties shall be duly notified;

(15) Prescribe the use or adoption of the latest technological and electronic devices, taking into account the situation prevailing in the area and funds available for the purpose.  The Commission shall notify the authorized representatives of accredited political parties and candidates in the areas affected by the use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices;

(16) Constitute a pool of standby-teachers from which substitutes shall be drawn in case a member/s of the Board of Election Inspectors who, for one reason or another, failed to report or refused to act as such on the day of the election.

(17) Carry out a continuing systematic campaign through newspapers of general circulation, radio and other media forms to educate the public and fully inform the electorate about election laws, procedures, decisions, and other matters relative to the works and duties of the Commission and the necessity of clean, free, orderly, honest, peaceful and credible electoral processes;

(18) Accredited non-partisan groups or organizations of citizens from the civic, youth, professional, education, business or labor sectors known for their probity, impartiality and integrity with the membership and capability to undertake a coordinated operation and activity to assist it in the implementation of the provisions of the Omnibus Election Code and the resolutions, orders and instructions of the Commission for the purpose of ensuring free, orderly, honest, peaceful, and credible elections in any constituency.  Such groups or organizations shall function under the direct and immediate control and supervision of the Commission;

(19) Conduct hearing on controversies pending before it in the cities or provinces upon proper motion of any party, taking into consideration the materiality and number of witnesses to be presented, the situation prevailing in the area and the fund available for the purpose;

(20) Have exclusive jurisdiction over all pre-proclamation controversies.  It may motu proprio or upon written petition, and other due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made, as the evidence shall warrant.  Notwithstanding the pendency of any pre-proclamation controversy, the Commission, may motu proprio or upon filing of a verified petition and after due notice and hearing, order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy.

(21) Have the exclusive power, through its duly authorized legal officers, to conduct preliminary investigation of all election offenses punishable under the Omnibus Election Code and to prosecute the same.  The Commission may avail itself of the assistance of the other prosecuting arms of the Government: Provided, however, That in the event that the Commission fails to act on any complaint within four (4) months from its filing, the complainant may file the complaint with the office of the fiscal or with the Department of Justice for the proper investigation and prosecution, if warranted; and

(22) Perform such other functions as may be provided by law.

SOURCE:
Sec. 2, Chapter 1, Sub-title C, Title I, Book V, Administrative Code of 1987

Sunday, September 6, 2009

Powers and Functions of the Commission on Elections


The Constitutional Provisions

The 1987 Constitution of the the Philippines (Sec. 2, Art. IX-C) provides for the following powers and functions of Commission on Elections. It provides, thus, to wit:

(1) Enforce and administer all laws and regulations relative to the enactment of an election, plebiscite, initiative, referendum, and recall.

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable.


(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters.

(4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful and credible elections.

(5) Register, after sufficient publication, political parties, organizations, or conditions which, in addition to other requirements, must present platform or program of government, and accredit citizen's arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence of unlawful means, or refuse to uphold and adhere to this Constitution or which are supported by any foreign government shall likewise be refused registration.

Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections constitute interference in the national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law.

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. [see People vs. Inting, 187 SCRA 788 and People vs. Delgado, 189 SCRA 715]

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates.

(8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order or decision.

(9) Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall.

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