Sounding Board

The latest Comelec broth


Buhay and An Waray partylist groups are being stripped by the Commission on Elections of congressional seats already awarded to them. The seats are being reserved instead for the Senior Citizens party-list group. Understandably Buhay and An Waray are crying foul. What will happen to them?

Before we speculate about that, let us talk about a preliminary matter, namely, election contests.

Election contests are controversies where the No. 2 in an election race challenges the right of the proclaimed winner and demands that he be proclaimed winner instead. The Constitution says that the electoral tribunal of either chamber of Congress shall be the sole judge of election contests. This means that the Comelec, which has jurisdiction over the implementation of election laws, must at a certain point yield its jurisdiction to the electoral tribunal. But when exactly does jurisdiction pass from the Comelec to the electoral tribunal?

In all the Supreme Court cases I have seen, the Court ruled that the Comelec no longer has jurisdiction because in these cases the proclaimed winner had taken the oath and had assumed office. But in many cases the proclaimed winner does not immediately assume office. In fact, winners of the last congressional elections will not be able to assume office until the start of the new Congress come June 30. For that matter, it will take a while before the new electoral tribunal can get organized. Does this mean therefore that at least until June 30 the Comelec continues to have jurisdiction?

It seems to me that the moment a defeated candidate challenges a proclaimed winner saying that he is the real winner, we have the essential elements of an election contest which places the real winner in doubt. The doubt exists even before the proclaimed winner assumes office. Where then can the No. 2 go to seek relief? The Constitution says that the “Electoral Tribunal shall be the sole judge of all contests relating to the election, returns, and qualifications” of all squabbling members of Congress. Necessarily, therefore, relief will not come until after the electoral tribunal is organized.

There have been instances, however, when the proclaimed winner might succeed to take the oath and assume office even before an election contest can be filed or decided; in fact, even before June 30. Whether or not this is proper does not alter the fact that the ultimate judgment will be made by the electoral tribunal.

Now we have the peculiar case of Buhay and An Waray. Without anybody filing an election contest against anybody, Buhay and An Waray are being stripped of seats that have been proclaimed as won by them in order to reserve the seats for the as yet unproclaimed (and in fact initially disqualified) Senior Citizens party-list group. The answer of the Comelec is that the Supreme Court had issued an order commanding the Comelec to reserve seats for the Senior Citizen party list. But the Court did not specify how the Comelec should make the reservation.

This, of course, is not a run-of-the-mill election contest where two candidates are vying against each other. It is a contest between Buhay and An Waray on the one hand and the Comelec on the other!

In my view, whether the case goes to the Comelec or the House of Representatives Electoral Tribunal, the outcome should be the same based on the manner seats are distributed according to existing jurisprudence. According to Banat vs Comelec (GR 17927) and earlier decisions, parties which obtain at least 2 percent of the total votes cast for party lists are entitled automatically to one seat. Those who get more than 2 percent can get an additional seat for every additional 2 percent, but only up to a maximum of three seats. After all those who have obtained at least 2 percent of the votes have been given their allocated seats, then the Comelec distributes the remaining seats among those who did not receive 2 percent until the maximum of 20 percent of the House seats have been filled.

The expectation on the basis of the number of votes received is that the Senior Citizens, if qualified, will be entitled to more than one seat. The reserved seats for them should be taken from among those who did not garner at least 2 percent of the votes cast. That way the seats already won by Buhay and An Waray and any other party entitled to more than one seat will be respected.

The problem we have now is partly the result of the rush to proclaim winners even before all the votes were counted.

The lot of second placers in elections. Does the runner-up take the place of a declared winner who is disqualified? According to Gonzales vs Comelec, he does not, unless the electorate is fully aware in fact and in law of a candidate’s disqualification so as to bring such awareness within the realm of notoriety, but they would nonetheless cast their votes in favor of the ineligible candidate. This exception was not verified in Gonzales vs Comelec. But this has been clarified by later decisions of the Supreme Court saying the second placer takes the place of the disqualified winner if the disqualification existed when the certificate of candidacy was filed. In other words, the winner was never a candidate.

Follow Us

Follow us on Facebook Follow on Twitter Follow on Twitter

More from this Column:

Recent Stories:

Complete stories on our Digital Edition newsstand for tablets, netbooks and mobile phones; 14-issue free trial. About to step out? Get breaking alerts on your mobile.phone. Text ON INQ BREAKING to 4467, for Globe, Smart and Sun subscribers in the Philippines.

Short URL: http://opinion.inquirer.net/?p=54703

Tags: 2013 Elections , an waray , Comelec , nation , news , partylists

  • jeproks2002

    So was CJ Sereno correct in issuing the TRO enjoining COMELEC from declaring the party list winners? If computation of the 2% is based on the total number of votes, shall the votes cast for the Senior Citizens be included in the TOTAL number of votes cast for party lists?

    • Edgar Lores

      IMHO. Q1: Yes. Q2: Yes, whether or not the Senior Citizens were disqualified.

  • nes911

    Will this apply to the case of joseph estrada who has a pending case of disqualification in the sc? If that is so, then he is in great trouble

  • Juanito Cruz

    See what premature proclamation of perceived winners by the COMELEC can lead up to? To make matters worse, the COMELEC is now making the proclaimed winners bear the consequence of its mistake.

    The elections are over and yet the COMELEC continues to inflict damage and commit mistakes left and right.

Copyright © 2014, .
To subscribe to the Philippine Daily Inquirer newspaper in the Philippines, call +63 2 896-6000 for Metro Manila and Metro Cebu or email your subscription request here.
Factual errors? Contact the Philippine Daily Inquirer's day desk. Believe this article violates journalistic ethics? Contact the Inquirer's Reader's Advocate. Or write The Readers' Advocate:
c/o Philippine Daily Inquirer Chino Roces Avenue corner Yague and Mascardo Streets, Makati City, Metro Manila, Philippines Or fax nos. +63 2 8974793 to 94


  • Afghan hospital guard kills 3 American doctors
  • [VIDEO] No assurances on Janet Lim-Napoles’ bid to become state witness
  • South Sudan president fires long-time army leader
  • Grenade explodes outside MPD Station 1
  • 25 cops ordered relieved over links to drugs
  • Sports

  • Pacquiao can dodge tax issues
  • F1 boss Bernie Ecclestone rejects bribery charges
  • Big Chill freezes Cafe France to arrest skid
  • Pacquiao has to go through PBA Rookie draft
  • Guiao summoned by PBA for name-calling incident
  • Lifestyle

  • Gongs and southern dances star in a workshop at San Francisco Bayanihan Center
  • This woman ate what?
  • Photos explore dynamics of youths’ sexual identity
  • 12th Philippine Food Expo set at the World Trade Center
  • No tourist draw, Malang the croc will remain wild
  • Entertainment

  • Smithsonian wants photos, videos for ‘Day in the Life of Asian Pacific Americans’
  • What Garcia Marquez left behind
  • Has Ai Ai fallen deeply with ‘sireno?’
  • Sony developing live-action Barbie comedy
  • California court won’t review Jackson doctor case
  • Business

  • Metro Pacific acquires stake in Victorias
  • How ‘one percent’ economic elite was uncovered
  • Facebook profits triple as mobile soars
  • Insular Honors Sales Performers at Testimonial Rites
  • Apple increases stock buyback, will split stock
  • Technology

  • Enrile in Masters of the Universe, Lord of the Rings?
  • Top Traits of Digital Marketers
  • No truth to viral no-visa ‘chronicles’
  • ‘Unlimited’ Internet promos not really limitless; lawmakers call for probe
  • Viber releases new design for iPhone, comes to Blackberry 10 for the first time
  • Opinion

  • Editorial cartoon, April 24, 2014
  • Talking to Janet
  • Respite
  • Bucket list
  • JPII in 1981: walking a tightrope
  • Global Nation

  • Obama to visit Filipino soldiers in Fort Bonifacio
  • Fil-Am youth conferences unite under one theme
  • Embassy advisory: Filipinos still need visas to enter US
  • No travel restriction to Mideast, DFA clarifies
  • PH-HK relations repaired, but families of victims still being courted
  • Marketplace