In the News: Trendsetting

Traditionally, the results of Philippine national and local elections were not available until several weeks after the day of the election.  While the votes were being counted manually, candidates exchanged charges of vote-padding and vote-shaving (dagdag-bawas) and other forms of cheating, marring the credibility of our elections.

The 2010 elections saw the implementation of an automated election system.  New precinct count optical scan (PCOS) machines that would count votes electronically were heralded as the solution to the Philippines’ election woes. The Commission on Elections (COMELEC) even declared that the election results would be available only several hours after the voting, thereby minimizing the risk of election cheating.

True enough, the COMELEC began publishing the results as early as the evening immediately following the election.  The polls closed at 7:00 p.m. of May 10, and by 9:00 to 10:00 p.m. of the same day, tallies showing that millions of votes had been counted were published by the COMELEC through the media.  Although the tallies were labeled as “partial, unofficial, uncanvassed” election results, the release of this information contributed greatly to the perception that the 2010 Philippine elections were generally clean and honest, and helped boost an uptick in the local markets.

Despite its earlier declaration that the results would be available within several hours, however, the release of the “unofficial” results slowed markedly in the days that followed.  Eventually, the COMELEC ceased to publish the results of its internal tally altogether, reportedly after having been put on notice by various candidates that such publication constituted a violation of applicable laws.  Some candidates alleged that by releasing “unofficial” results, the COMELEC was engaged in “trending,” or conditioning the public to believe that a particular candidate or set of candidates was winning.

Philippine law does not specifically define “trending,” but it is generally understood to mean “to turn in a specified direction.”  In the context of an election, “trending” can mean the phenomenon where the release of partial election results, or worse, selected election results  (showing that one candidate is leading), influences other voters who have not yet cast their votes.  Although theoretically, this could happen in the Philippines (e.g., where exit poll results are released in the middle of the day of the election), trending might be more relevant in countries that span more than one time zone, in cases where poll results are made available from one electoral district when another electoral district has not yet opened for voting.

There is no Philippine law that specifically deals with this issue.  In Brillantes, Jr. vs. Commission on Elections (G.R. No. 163193, 15 June 2004), however, the Supreme Court was asked to resolve the question of whether the COMELEC could disburse funds for the purchase of equipment intended to electronically transmit the results of the 2004 elections for publication as the “advanced unofficial results” of the elections.

Article VII, Section 4 of the Constitution provides, in part, that:

The returns of every election for President and Vice-President duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate.  Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in join public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner prescribed by law, canvass the votes.

The COMELEC argued that it was vested with general authority to enforce and administer all laws relative to the conduct of Philippine elections and that this included the authority to conduct and publish the results of a quick count.  In any event, argued the COMELEC, it would not be “canvassing” the votes but merely “consolidating” and “transmitting” the election results for “unofficial” publication.

The Court ruled that the COMELEC’s intended consolidation, transmittal and publication of “advanced unofficial” election results constituted a usurpation of Congress’ sole and exclusive authority to canvass the votes for the election of President and Vice-President, as provided in Article VII, Section 4 cited above.  The Court pointed out that even if COMELEC’s tabulation of votes would only be “unofficial,” Philippine election laws prescribe a specific procedure for the counting and canvassing of votes at the precinct, municipal, provincial and national levels, including mechanisms for the filing and resolution of election contests.  According to the Court, departing from this procedure would undermine the electoral process, as it would result in two sets of conflicting “official” and “unofficial” results, with one set of results being based on a COMELEC count, no less.

This is not to say that the law intends that the public must wait for Congress to complete its canvass before they may be apprised of the election results.  Mirroring Republic Act No. 8436 (as amended by Republic Act No. 9369), the law authorizing the conduct of automated elections, COMELEC Resolution No. 8786 (4 March 2010) provides that copies of the election returns (on each of the electoral precinct, city, municipal and provincial levels) must be provided to an accredited citizens’ arm (such as the National Movement for Free Elections) and to local and national media broadcast entities.

The distribution of such returns and certificates of canvass will allow the citizens’ arm and media to conduct their own “quick count,” albeit probably at a slower pace than the one intended by the COMELEC in 2004 and the incomplete “unofficial” count conducted this past May. Notably, information will be provided to the citizens’ arm and media at the level of each election precinct and board of canvassers, indicating which precincts and areas have completed canvassing.  A responsible tabulation and disclosure of all such information (including specifics on which geographical areas are covered in the tally) will help avoid charges of trending.

(Philbert thanks Joy Tajan for assisting in the preparation of this post.)