FAILURE OF COMELEC: There is talk of a Failure of Election scenario amid fears that the Commission on Elections may be unable (1) to produce on time an incontestable winner in the bidding for hardware, software and services for full poll automation in 2010, or (2) to conduct a credible computerized national election.

In short, a Failure of Comelec could lead to a Failure of Election and other dire consequences that may prove too much for this nation already suffering from the wear and tear of corruption and mismanagement.

If, for any reason, no clear winner as president emerges in the May 2010 election, who will stand as acting president? Some people have suggested Supreme Court Chief Justice Reynato Puno.

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THE CHARTER SAYS: Let us go back to the Constitution. In case the presidential election fails to be conclusive, Section 7, Article VII, provides:

“xxx If the President-elect fails to qualify, the Vice President-elect shall act as President until the President-elect shall have qualified.

“If a President shall not have been chosen, the Vice President-elect shall act as President until a President shall have been chosen and qualified. xxx

“Where no President and Vice President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall act as President until a President or a Vice President shall have been chosen and qualified.

“The Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or a Vice President shall have qualified, in case of death, permanent disability, or inability of the officials mentioned in the next preceding paragraph.”

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TEMPTING SCENARIO:Some sectors have suggested that we fall back on the Chief Justice if there is failure of election, or if nobody is qualified or proclaimed winner as president and vice president.

Election lawyer Romulo B. Macalintal says that the Chief Justice’s standing in as acting president is not legally feasible.

Incidentally, other quarters have warned that in a failure of election, President Gloria Arroyo may feel duty-bound to stay on as holdover president rather than allow a leaderless nation to spin into chaos.

And they add: Will this not tempt the President to plot, precisely, a failure of election just to be able to stay in power beyond 2010?

With our damaged mores and weak institutions, it is not difficult working out a failure of election. Remember, we are experimenting for the first time with nationwide poll automation in an archipelago of more than 7,000 islands with a history of dirty politics.

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SC CHIEF CAN’T BE: Macalintal warns that it would be unconstitutional to name the Chief Justice as acting president.

He cites Section 12, Article VIII, which says that “the members of the Supreme Court and other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.”

“This provision strengthens the application of separation of powers among the Executive, the Legislative and the Judicial departments,” he says, “to ensure that no department encroaches on the territory of the other and that the concentration of power in one department is prevented.”

As acting president, the Chief Justice might act or render decisions which may be assailed before the Supreme Court. In such a situation, Macalintal says, “We would have the anomaly of a decision or act of the Chief Justice in his capacity as acting president to be reviewed by him and the other members of the Supreme Court where he presides and exercises strictly judicial power.”

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HOLDOVER MODE:The Section 7 cited also mandates the Congress to pass a law providing a procedure on how to select and who should be selected as acting president until a President or a Vice President shall have qualified. We do not have that law yet.

Such a law is crucial since it is possible that the Senate President and the Speaker of the House might be in their last term as senator and congressman. If so, Macalintal points out, none of them will be qualified to act as president since their terms will expire at noon of June 30 when the term of the new president begins.

The logical solution, Macalintal says, is “to provide a law for the incumbent elected President to act as president until the duly elected president or vice president is proclaimed and qualified.”

“After all, the elected President is not eligible for any reelection,” he says.

“Only recently,” he adds, “the Supreme Court in the case of Seneres vs Comelec, unanimously reiterated the doctrine that ‘Authorities are almost unanimous that one who continues with the discharge of the functions of an office after the expiration of his or her legal term — no successor having, in the meantime, been appointed or chosen — is commonly regarded as a de facto officer, even where no provision is made by law for his holding over and there is nothing to indicate the contrary.”

So it seems another mode is emerging — without resorting to Charter Change or term extension — for President Arroyo to be able to stay in power after May 2010.