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Ministerial function: A closer look at the Congress’s role in certifying Presidential and Vice-Presidential election results

On Jan. 20, 2021, former United States Vice-President Joseph R. Biden was finally sworn in as the 46th President of the United States of America. However, his path towards the presidency was not without its challenges. Aside from the campaign obstacles brought by the COVID-19 pandemic, President Biden had to face the most unorthodox modern-day politician, former US President Donald J. Trump, who, even before the elections, declared that the only way to lose his seat would be through a large-scale election fraud. After losing the elections, Trump filed numerous cases based on conspiracy theories questioning the integrity of the elections in the battleground states where he trailed President Biden, but to no avail.

Sensing defeat in the courts of law, Trump, in his attempt to remain in power, turned to his perceived allies in the US Congress because under the laws of the United States, before the President and Vice-President can be sworn into office, their electoral college votes must first be certified by the US Senate and the US House of Representatives.

The members of the US Congress may object to such certification. However, no electoral vote from any State may be rejected if it has been regularly given by the electors.

Trump’s supporters then held a rally at the US Capitol to pressure the members of the US Congress into objecting to the certification of electoral votes from battleground states that Trump lost. This rally escalated into a fatal riot which led to the death of four rioters and one police officer. The riot, which has been highly publicized worldwide, was dubbed as the US Capitol insurrection, and was considered the biggest attack on American democracy. Despite this attack, the members of the US Congress rejected the objections to the certification raised by Trump’s allies, and voted to certify all electoral votes.

Interestingly, the constitutional function of the US Congress to certify the electoral votes for President and Vice-President has a similar counterpart provision under the 1987 Philippine Constitution.

Article VII, Section 4 of the 1987 Constitution provides that “[t]he 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 30 days after the day of the election, open all certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.”

Under the rules for canvassing of votes for presidential and vice-presidential candidates, the counsels of the candidates may object to the canvass of any certificate of canvass (CoC). The report of canvass by the Joint Congressional Canvassing Committee must first be approved by a majority of the Senators and Members of the House of Representatives, voting separately, before the President-elect and the Vice-President-elect may be proclaimed.

It will be recalled that during the hotly contested 2004 presidential elections, the allies of presidential candidate Fernando Poe, Jr. in Congress objected to the canvassing of certain CoCs. They demanded that election returns purportedly indicating fraud be scrutinized. However, these objections were merely noted, and the Joint Congressional Canvassing Committee proceeded to canvass the CoCs which appeared to be authentic and duly executed. In the end, Congress proclaimed President Gloria Macapagal-Arroyo as the winner of the elections.

The tradition of limiting the objections only to those involving the authenticity and due execution of electoral votes or CoCs is well established both in the US and in the Philippines. The apparent reason for this tradition in the Philippines is the presumption of regularity in the performance of official duties of public officers, in this case the members of the provincial or city board of canvassers. Also, our election laws require the Commission on Elections (Comelec) to adopt adequate and effective measures to preserve the integrity of the CoCs. More importantly, objections pertaining to questions on the integrity of the elections are matters that go beyond the contents of the CoCs and require evidence presentation and scrutiny. Thus, the resolution of fraud allegations in the conduct of the elections is outside of the authority delegated by the Constitution to Congress as the National Board of Canvassers. Consequently, once it is established that the CoCs are authentic and duly executed, it is ceremonial and ministerial for the Congress to certify and canvass these CoCs.

The losing presidential or vice-presidential candidate, however, is not without any remedy. The Philippine Constitution provides that the Supreme Court, sitting en banc as the Presidential Electoral Tribunal (PET), shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President. Since the PET is composed of 15 non-partisan Justices of the Supreme Court, it is the most appropriate forum to resolve issues on election fraud and other matters relating to the conduct of the presidential or vice-presidential elections.

The limitations on the power of Congress to certify the results of the elections are based on sound and well-tested reasons. However, the effectivity of these limitations has been challenged on several occasions. The most serious of these challenges was the US Capitol insurrection. However, the members of the US Congress mustered their courage and overwhelmingly decided across party lines to certify the electoral votes.

In the future, similar challenges may be posed in the Philippines. We can only hope that our representatives in Congress will go beyond partisan politics and uphold their solemn oaths to uphold and protect the Constitution.

This article is for informational and educational purposes only. It is not offered and does not constitute legal advice or legal opinion.

 

Hezro I. Caandoy is an Associate of the Litigation and Dispute Resolution Department (LDRD) of the Angara Abello Concepcion Regala & Cruz Law Offices or ACCRALAW.

(632) 8830-8000

hicaandoy@accralaw.com

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