Time to retool the old Election Code

New Year means new beginnings. With a forthcoming new Congress after the 2022 national and local elections, it is high time we say good riddance to the antiquated sections of the existing Omnibus Election Code (OEC) of Nov. 28, 1985, retool it, keep it attuned to the 1987 Constitution, new electoral processes and milestones, and cleanse it of provisions that do not contribute to a healthy, sturdy, and stable development of political parties.

Via legislation and constitutional amendments, a proactive new Congress can well undertake this historic task that can impact future elections in the country.

Via legislation. For one, failure to vote is an election offense with penalties (Section 264, OEC). To vote now is a privilege under the 1987 Constitution, meaning, one may or may not vote (Sec. 1, Article V, the 1987 Constitution). For another, Section 77 of the OEC allows substitution and withdrawal of candidates even after the deadline to file certificates of candidacies, contributing to the unhealthy growth of political parties. As in past elections, the Commission on Elections (Comelec) has no option but to implement Section 77. Third, the OEC speaks about the manual system of elections and the various processes related to it. But since 2010 up to the present, national elections and local elections (except barangay and Sangguniang Kabataan elections) have been automated, with corresponding new rules on adjudicating election contests in the regular courts, Comelec, House Electoral Tribunal, Senate Electoral Tribunal, and President Electoral Tribunal.

Fourth, detainees are now allowed to vote and persons with disabilities can register in satellite registration sites like shopping malls, covered courts, and in accessible polling stations. The OEC is silent on these election milestones. Fifth, the OEC is likewise silent on the party list system which has long been operationalized under the 1987 Constitution. Together with the inclusion of this electoral innovation is the need to refine or strengthen Republic Act No. 7941 (Party-List System Act) to reflect the intent of the 1987 Constitution as articulated in Ang Bagong Bayani v. Comelec, et al., GR 147589, June 26, 2001. Finally, the OEC should flesh out Section 26, Article II of the 1987 Constitution which provides that “The State shall … prohibit political dynasties as may be defined by law.” Bills in previous Congresses were filed to implement this provision but were not acted upon, remaining in the legislative backburner.

A provision long dead in the OEC is Section 80, the prohibition against premature campaigning outside of the campaign period. Before the Supreme Court decision in Penera v. Comelec, GR 181613, Nov. 25, 2009 (citing RA 8436 as amended by RA 9369), a candidate who has filed his certificate of candidacy was forbidden to wage an electoral or promotional campaign before the start of the campaign. Penera now allows premature campaigning because even if one has filed a certificate of candidacy, he/she is not yet a candidate before the onset of the campaign period. May Congress act speedily on RA 8436 as amended by RA 9369, by restoring and fine-tuning the prohibition against premature campaigning in order to level the campaign field for all candidates.

Via constitutional amendments with Congress sitting as a constituent assembly. These amendments should include: one, creating two electoral bodies (one for management and overseeing of elections and the other for adjudicating election contests) as in Mexico. Long-pending cases (protests, registration of party list organizations, disqualifications, cancellations of certificates of candidacies, etc.) can be resolved judiciously and expeditiously if there is one election body solely attending to election-related contests and not burdened by issues like bidding of new voting machines, printing of ballots, appointment of Board of Elections Inspectors, overseas voting, deployment of teachers and election personnel, etc.;

And two, block voting for president and vice president. A vote for the president is a vote for the vice president, as in the US. This will ensure that the two officials will be working as a team and not as adverse parties.

Now that the filing of certificates of candidacies is done, it will be a good idea for the Comelec to invite the candidates to sign an Electoral Reform Pledge in order to ensure that when elected, they will honor their public commitment to the introduction and passage of new election laws that will help reform the country’s electoral processes.

May our 19th Congress make room for fresh inspiration and innovation!

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Rene V. Sarmiento was a member of the 1986 Constitutional Commission, a retired Comelec commissioner, and former chair of the Parish Pastoral Council for Responsible Voting.