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.