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."