Outdated election law led Comelec to overstep in 2025 polls — EU observers
MANILA, Philippines — Election observers from the European Union have urged the Philippines to fix its outdated and fragmented election code after finding the Commission on Elections "effectively created new rules" and contradicted existing laws through a flurry of new resolutions for the midterm polls.
The EU mission found that the Comelec issued numerous resolutions that introduced "substantive changes" on critical issues, including online voting for overseas Filipinos, digital campaigning, artificial intelligence, and anti-discrimination measures. One resolution in February made sexist remarks an electoral offense, which led to at least one candidate's disqualification.
"This regulatory overreach arguably amounts to de facto law-making, bypassing the legislature," the European Election Observation Mission (EU EOM) to the Philippines wrote in their final report released Thursday, July 3.
Among the EU observers' major findings is how an election code so outdated that "nearly half of its provisions" no longer apply has forced the poll body to act beyond its constitutional role. Rather than wait for Congress to modernize the four-decade-old 1985 Omnibus Election Code — an effort that failed anew in the last Congress — the Comelec was seen as filling legal gaps on its own.
"Nearly half of the provisions of the 1985 Omnibus Election Code are superseded by the Constitution and other laws, leaving the electoral legislation scattered and not harmonised," Chief Observer Marta Temido said at a press conference on Thursday, July 3.
The EU Election Observation Mission deployed over 200 observers from EU member states, Canada, Norway and Switzerland who worked in the Philippines from March 28 to June 2, 2025 to monitor the midterm elections.
Comelec Chairperson George Garcia previously flagged the need to update the Omnibus Election Code, saying its outdated provisions prevent them from effectively penalizing candidates who flout rules on premature campaigning and aid distribution during the campaign period.
Comelec's resolution spree, legal uncertainty
The poll observers noted that the Comelec issued resolutions covering a wide range of electoral issues ahead of the May 12 midterm elections. These included new rules on out-of-country online voting, measures to combat disinformation and misuse of artificial intelligence, regulations on digital campaigning, and anti-discrimination provisions.
Resolution 11116, issued in February, the start of the campaign period for national candidates, specifically made discriminatory and sexist remarks an electoral offense punishable by up to six years imprisonment and disqualification from office.
"Before the elections, the COMELEC issued resolutions introducing changes on overseas voting, digital campaigning, disinformation, artificial intelligence and campaign activities," Temido said. "However, some of them introduced new rules, raising concerns about legal hierarchy and certainty."
While resolutions addressing "red-tagging, vote-buying and the use of discriminatory and sexist speech were largely welcomed," the EU election observers believe the Comelec had by default introduced new rules vulnerable to judicial challenge.
"This regulatory overreach arguably amounts to de facto law-making, bypassing the legislature and raising concerns about legal hierarchy and certainty, as this approach remains vulnerable to challenges on jurisdiction grounds," the EU election observers' report stated.
These new resolutions also "do not only complement but at times contradict provisions in statutory laws, for example, those regulating voting hours, the venues where elections are conducted and electoral offences, challenging the principle of legal hierarchy," the report noted.
The fragmented legal framework also allowed the poll body unprecedented discretion in vetting poll bets, the EU observers found. The Comelec can reject candidate it deems to be "making a mockery of or bringing disrepute to the electoral process" – a standard the observers see as subjective and problematic.
"The authority to reject nuisance candidates based on a subjective assessment of their credibility poses challenges for newcomers, reinforcing public perceptions that elections are dominated by elites, limiting political pluralism and establishing an uneven playing field," Temido said.
Throughout the campaign period, the observers also noted how the Comelec's broad powers led to a flood of enforcement actions. The poll body launched over 800 investigations and issued over 200 show cause orders on grounds of vote buying and partisan distribution of government aid.
The Comelec, through its resolutions, also expanded the scope of electoral offenses to include "sexist remarks, discriminatory conduct, and other forms of harassment."
While the intention of promoting inclusivity was "largely welcomed", the EU obsevers said that this "expansion raises significant legal and constitutional concerns as well as on due process, as changes in criminal or quasi-criminal liability require congressional approval, and not an administrative action."
Several candidates received show cause orders for making sexist remarks. Pasig congressional candidate Ian Sia was ultimately disqualified on these grounds.
The observers noted that while such measures were welcomed by the public, "the imposition of penalties for speech-related violations raises concerns on proportionality, potential infringements on freedom of expression, and implications for due process," the report stated.
The Comelec's actual standard of evidence had also worried the EU observers.
"While it operates on a 'probable cause' standard to pursue electoral offences, Philippine courts require 'proof beyond reasonable doubt' for conviction," they said. "This discrepancy risks undermining due process rights, as individuals may face prosecution based on a lower evidentiary threshold, despite the severe penalties involved."
Traditional problems persist. But the Comelec's wide-ranging attempts to keep candidates in line and go after violators did not pan out well in curbing vote-buying — a practice that the EU observers said was "well-entrenched" in the country.
One of the most persistent problems the EU observers also found was "an almost complete lack of voter secrecy" during polling. This was attributed to the the absence of secrecy folders in several polling booths and overcrowding of precincts.
Congress urged to act
The EU observers made reform of the electoral framework their top priority recommendation, calling for the election code to be "recodified" and "consolidated and harmonised" to fix its numerous inconsistencies with legislation.
"Attempts to codify and modernise election rules through a new Omnibus Election Code have repeatedly failed due to a lack of political will," the report noted, with the most recent reform attempt from 2022 dying in the 19th Congress.
Other recommendations by the poll observers concern voting rights for former convicts, ensuring full access to polling precincts for all accredited observers, establishing objective criteria for candidacies, and decriminalizing online libel in favor of civil sanctions.
The EU mission also called for measures to achieve gender parity in elected positions, stronger campaign finance oversight with updated spending limits, and explicit bans on using government welfare or aid programs for partisan purposes.
Additional recommendations focused on improving election technology through nationwide mock exercises, strengthening media freedom protections, and aligning dispute resolution timelines with the electoral calendar.
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