Can the Senate stop an Arroyo holdover?

MANILA, Philippines—To stop President Gloria Macapagal-Arroyo from prolonging her stay, a senator whose term expires only in 2013 should be elected Senate president. This was the near unanimous reaction of readers to last Sunday’s column. There, I opined that a failed election in 15 percent of the country would give Arroyo the opportunity to become a holdover president because the top officials mandated by the Constitution to succeed her (Vice President Noli de Castro, Senate President Juan Ponce Enrile and Speaker Prospero Nograles) would, like her, end their terms of office on June 30, 2010.

Is Senate a continuing body? I wish the solution were that simple; no, it is not. You see, this solution is anchored on the conventional legal wisdom that the Senate is a “continuing” body and that its officers remain in their positions in-between adjournments of Congress.

In turn, this anchor is derived from previous Constitutions which staggered the election of the 24 senators in batches of eight every two years. Hence, even if eight senators ended their terms every two years, there were 16 more who continued to hold office, thereby making the Senate a continuing body.

Under the present Constitution however, 12 of the 24 senators are elected every three years. Hence, only 12—who do not constitute a majority—remain in office. On this basis, Arroyo partisans will surely claim that the Senate has ceased to be a continuing body and its new head, though possessed of a term ending in 2013, cannot become acting president of the country.

Who will decide this question of continuity? Answer: the Supreme Court (SC). That the SC would ultimately decide the holdover issue propelled the presidential allies to ask the Judicial and Bar Council to submit to the President the list of nominees for the chief magistracy now, even before Chief Justice Reynato S. Puno retires on May 17, in stark violation of the constitutional ban on appointments from March 11, 2010 to June 30, 2010. Surely, this brazen strategy would politicize the SC.

Credible SC needed. But I noticed that the Palace has not categorically declared that the President would appoint the new chief justice within the prohibited period. It merely said that the President would do what the national interest requires. This carefully worded Malacañang position implies that Arroyo is keeping her options open because appointing a chief justice immediately will bury the Court in political mud.

I think President Arroyo realizes that she needs a credible Supreme Court to rule on the crucial issue of holdover. After all, as holdover president, she could appoint the new chief justice after June 30, 2010 when the constitutional ban is over. So, the priority is to ensure the public acceptability of a holdover via a well-crafted decision of a non-controversial Court.

Such a subtle strategy would also spare the new chief justice from political flak and from possible dethronement. All the major presidential bets publicly declared that the chief justice should not be appointed during the prohibited period. Thus, the newly elected president would probably denounce any chief justice so named and consign him or her to the pits of history.

Computerization needs time. Let me now revert to the problems of election automation. The most publicly known nationwide computerizations are the automated teller machines (ATM) and the credit cards. These two systems took many years to install and to perfect. Yet the ATMs are operated only in urban areas, are much less in number (a few thousands compared to a whopping 82,200 PCOS) and are availed of only by a few million bank depositors, not by the 47 million registered voters.

Credit card holders know that stores await an authorization number from the credit card companies before finalizing each transaction. The process of swiping the card and waiting for the authorization number to be transmitted back takes only a few seconds.

Compare this to the field tests conducted on the PCOS in which the transmission of the results from the machines to the municipal centers took several hours in many instances. For those who understand computers, a time lapse of more than five seconds is unacceptable, so Andrew Ramoso, a self-confessed geek, wrote me.

The Supreme Court started its computerization program almost 10 years ago during the term of Chief Justice Hilario G. Davide Jr. Yet up to now, the program is still incomplete. My point is that computerization takes time to mature and to perfect. It cannot be rushed in only eight months or even a year, as the Commission on Elections had been tasked to.

Many other dangers and risks could trigger election failures: delays and errors in ballot printing, miscalibration of the PCOS, misdelivery of the ballots and the machines, source code review, glitches in transmissions, jamming and hacking devices, inadequate teacher training, not to mention man-made problems like stealing of ballots, disabling of the machines, etc.

The latest poll surveys show a neck-and-neck presidential race. SWS culled a seven-percentage point variance while Pulse Asia clocked a lead of only two points—a statistical tie—for the two leading bets. This means that the no-proc scenario I depicted last Sunday is much more likely to happen. It could take place even if the election glitches occur in just five percent (compared with 15 percent last Sunday) of the total votes cast, which translates to only two million ballots.

The closer the presidential race is, the more likely an Arroyo holdover becomes.

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