Carefully understanding annulment of elections

#ASKGOYO

By ATTY. GREGORIO LARRAZABAL

Atty. Gregorio Larrazabal

We are at a crossroad now in the resolution of electoral contests.

Now pending in the Presidential Electoral Tribunal (PET) is a prayer for the tribunal to annul the election results for the position of vice president in the 2016 presidential elections for three provinces.  What does this exactly mean?  What it seeks to have done is for the PET to, at the snap of its fingers, just like what Thanos did, make ALL the votes for the position of vice president for a whole province, disappear.  It will be as if the voters in the whole province NEVER cast their votes on May 9,2016.

This has never been done before, and the Supreme Court did not allow it.

But people ask me: Have there been instances in the past where election results of a particular jurisdiction, be it a clustered precinct, barangay, or city, been nullified?  Yes.  Under the law and jurisprudence, it IS allowed.  However, that power is reserved exclusively exercised by Comelec when the Commission declares a Failure of elections.

What is a failure of elections?

When the Comelec declares a failure of elections as part of its administrative power, it nullifies the results of the results of a specific electoral exercise, for a specific area.  It is a wholesale nullification of the results.  However, as a necessary act that comes after declaring a failure of elections, the Comelec immediately orders a special elections to be conducted, to replace the previous one which was nullified.

What are the grounds to declare a failure of elections?

Sec. 6 of the Omnibus Election Code provides:

“Sec. 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place 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…...”

Why is this second step of requiring a special elections important?  Because having declared that the voters were not able to express their free will during that electoral exercise, a new one will ensure they will be able to exercise their right of suffrage.

How is Failure of elections similar or relevant to a tribunal ordering an annulment of elections?

Both are essentially the same.  Both have the same effect. Both have the same end objective and result.  The declaration and/or order nullifies, wholesale the results of an election.

As a general rule, electoral tribunals (PET, SET & HRET) only resolve two types of election contests: 

1. Protest petition – where the protestant contests the win of the Protestee, and askes the tribunal to order a recount of the votes cast.
2. Quo Warranto – Where the petitioner does not contest the winning margin of the respondent (the winning candidate), but instead, questions his/her qualifications, which disqualifies him/her from assuming the office.

In 2016, the Supreme Court however, ruled that an electoral tribunal has also the power to annul election results.  I must caution people that the court likewise said that such power can be exercised only in limited instances, and under very stringent conditions.  Precisely because by doing so, the tribunal will, at the stroke of a pen, nullify thousands of votes.

However, the Supreme Court was very clear when they ruled that there are two indispensable requisites that must concur in order to justify the drastic action of nullifying the election:

(1) The illegality of the ballots must affect more than 50 percent of the votes cast on the specific precinct or precincts sought to be annulled, or in case of the entire municipality, more than 50 percent of its total precincts and the votes cast therein; and

(2) It is impossible to distinguish with reasonablecertainty between the lawful and unlawful ballots.

The ruling likewise stated that “Absent anything that would concretely and directly establish protestee as the one who had induced or actually perpetrated the commission of terroristic acts and demonstrate that those incidents were part of a scheme to frustrate the free expression of the will of the electorate…...”

So, as stated above from a portion of the ruling of the Supreme Court, it becomes clearer that there has to be:

1. Proof that more than 50% of the votes cast illegal.
2. It is impossible to distinguish, with certainty, between the lawful and unlawful ballots.
3. There has to be direct evidence presented to show that the protestee was the one responsible for the acts complained of.

So, if what is sought to be nullified, for example, are the results of a province, and during that elections 300,000 voters cast their vote, the protestant/petitioner must show that 150,001 votes were invalid or illegitimate.  How does one prove that?  Well, I don’t want to explicate to people on how it should be done, but, needless so say, it’s a challenge.

One more requirement is for evidence to show that the protestee/respondent has been directly involved in the commission of the acts complained of, which prevented the voters from exercising their free will.What this means and what evidence which needs to be submitted is something which the tribunal has to weigh. But it is for the party asking for such relief which has the burden to prove it.  It’s not the duty and responsibility of the tribunal to investigate and find proof to justify such action.  The tribunal just receives and evaluates the evidence submitted.

Now, if the tribunal does order the annulment of the election results, does it mean that the number of votes nullified will simply be deducted from the votes canvassed?  I don’t think so.  For doing that would be disenfranchising the voters wholesale.  I concur with the opinion of former Chief Justice Panganiban that a special elections must be called for.

Are there rules that the PET can use if it mandates a special elections?  Even if the rules of the PET do not include the conduct of special elections, I believe it can apply Rule 73 and use, as guidelines, the Comelec rules of procedures.

Who will pay for the conduct of the special elections?  Whether automated or manual, having special elections is an expensive exercise.  The expense could cost up to hundreds of millions of pesos.  Where will the funding come from?

Now, IF this path is taken, we enter the realm of the unknown.  This has never happened in an automated election where a tribunal orders the annulment of elections, and this may affect all future elections.

I agree with the other suggestion of former Chief Justice Artemio Panganiban that they have to require the opinions of amicus curiae.

I urge people to tread carefully when going down this path because it may open Pandora’s Box.  When people who run for an elective position lose, and file an election protest, instead of asking for a recount and revision of ballots, one will simply ask for the nullification of election results of areas they knew they lost.

In summary, we must take note of the following:

1. Nullifying elections require indispensable & strict requisites as provided by the Supreme Court. This is apart from the strict guidelines in declaring votes invalid.
2. It is not the duty of the court, nor is it its burden, to investigate and find proof of fraud.

Overall, this case has to be carefully weighed and decided not only by the tribunal, but also more importantly by the people.  If the decision is to annul election results without calling for special elections, it enters into the realm of the unknown and can very well diminish what remains of our democracy.