A Weekend to Remember

It was a new kind of weekend for me. I did not know what was going to happen and how the experience would become, but I agreed to go just the same. Actually, I just wanted to be with the other LENTE volunteers and observe how projects are implemented on the ground. Having been tasked as the organization’s acting executive director, and part time at that, I needed to have a sense of how it is on the field.

What I got from that weekend however was more than what I expected.

I joined LENTE’s Ona Caritos, Det Det Eugenio, and Kat Lee, Erwin Caliba and Tony Villasor of COMELEC in having gone through a 12 hour travel from Cubao, Quezon City to a remote village in Magsaysay, Occidental Mindoro. It was my first time to experience RORO (bus-ferry-bus-tricycle). We left Cubao 6 am on May 12, and we reached our destination 12 hours later. The travel back home was also about 12 hours.

Our purpose in going to Magsaysay was to participate in the regular meeting of a group called Hagura, an organization of three Mangyan tribes in Occidental Mindoro. The regular meetings are held to give the different representatives of the Mangyan tribes the opportunity to share their issues, problems and concerns and to help find a common solution to these. We took advantage of these regular meetings and requested that we be allowed to participate in them.

Our role was to listen to their election problems, that is, their problems relating to their registration as voters, the treatment that they get from politicians during campaign period, and the issues they face during the voting process. LENTE invited Atty. Erwin Caliba and Tony Villasor who are from the Office of Commissioner Rene Sarmiento of COMELEC as well as Provincial Election Supervisor Atty. Edwin Villa, and a couple of Election Officers, to listen to the tribal leaders and to explain the processes.

The Mangyan leaders, assisted by some religious, were clear and articulate about their electoral issues. Discrimination and lack of awareness by the mainstream society are at the core of these issues. Nevertheless, the COMELEC personnel who were there are  to be commended for being responsive and accommodating of the concerns raised by the  Mangyan leaders.

Although I have been in the advocacy for electoral reform for quite some time, I must admit that the experience was one of the rare moments when I am able to look at our electoral and democratic processes from the lens of disadvantaged. I realized that I may have been doing my work oblivious of how it can become relevant to the very group of people who are supposed to benefit from political reform. This weekend’s experience gave me one important perspective at electoral reform. No high tech machines for the voting and counting processes can be as important as making sure that those who need democracy more are able to exercise their rights in a truly free and fair election, that is, in an election that gives sufficient ballot access to everyone without discrimination and an election free of threats and intimidation.

I am glad I was able to break bread with my new acquaintances last weekend and to get a very valuable learning going back home.

Still on the unfortunate non-reappointment….and a bit of positive election news

The latest controversy now hounding the Philippine election commission is on the decision of the President not to reappoint IT manager and non-lawyer Gus Lagman to the Comelec. I am personally saddened by the decision because COMELEC lost an opportunity to have someone  at the “en banc” level  who really understands the value of technology in election. It is rare to find a legitimate IT manager who also have decades of election work with him. He would have brought a managerial and IT perspective in looking at how Philippine election process can be improved, which perspective has been sorely lacking in the Commission. Even as a lawyer, I think there is simply too much emphasis on legal talents for the poll body, forgetting that election is basically a systems and operations matter.

Oh well…..

Now looking at the brighter side of things. Last Friday, COMELEC, through the office of Commissioner Bot Lim, organized (with the support of the Association of Schools of Public Administration in the Philippines or ASPAP) a public consultation on its draft rules on Campaign Finance and Disclosure. As far as I can remember (but I may be wrong) that was the first time in recent years that COMELEC undertook this kind of activity. Praises and congratulations on this initiative are definitely in order.

In the consultation, representatives of candidates and few political parties, as well as from civil society organizations, offered some valuable recommendations on how the rules can be improved. Representatives from Congress, BIR and COA were also present and gave important insights. COMELEC enthusiastically received the inputs. The most interesting and liveliest portion of the consultation involved the discussion on considering excess donations as taxable incomes of candidates.  Although the exchanges were passionate, they were civil and and helpful to a better understanding of the basic concepts of Campaign Finance.

Beyond the results and the outputs of the consultation, it was also a manifestation (hopefully) of an inclusive and engaging COMELEC. The fact that it was held in the first place is already a welcome development. It is a sign that this Commission is open and ready to consult all stakeholders, hopefully to include even its critics. It is a recognition by the COMELEC that it cannot do things alone and that a consultative attitude will not only produce better policies, but will also imbibe among election stakeholders a sense of ownership of the election process.

Comm. Lim told me yesterday that there will be more of this….I just hope and pray that this policy will be sustained.

Holy Week 2012

Last year was a holier Holy Week for me. My family went with three Indonesian Divine Word (SVD) missionaries to Pangasinan, Baguio, and Benguet province for our “Visita Iglesia.” The Maundy Thursday, Good Friday, and Easter experiences, as I have shared in my previous blog, were meaningful spiritually.

This year’s Holy Week commemoration was less complicated as we decided to take advantage of, and just enjoy, the most peaceful and quite period in Metro Manila. We decided to just stay in the city.

Holy Week starts on Palm Sunday. Palm Sunday is celebrated by Christian Catholics all over the world to commemorate the “triumphant” entry of Jesus Christ to Jerusalem on the occasion of an important Jewish feast – the Passover. The Jews at that time generally regarded Christ as their most likely savior against the tyranny of imperial Rome. Needless to say, the Passover is celebrated by the Jews as a symbol of the end of the slavery of the Jewish race by the Egyptians centuries before.

The Jews were disappointed however as Jesus saw himself  as a different kind of savior – a savior of souls. The Hosannas that greeted his entry to Jerusalem, became angry shouts of “Crucify…” a few days later. He was executed in the most ignominous manner. Such a paradox…

But similar paradoxes still happen in this time and age. Five years ago in the afternoon April 1, 2007 just before a Palm Sunday mass was about to be celebrated in the parish church at Lubuagan, Kalinga, a young Divine Word (SVD) missionary priest from Indonesia was shot and killed in cold blood. The killer was a local thug and the motive was unclear. Nobody was willing to talk. The story was that the priest was just trying to ask the murderer not to carry his firearm within the church compound and that got the ire of the latter.

I, my wife, and my then 10 year old daughter Bernadette were with our Indonesian priests friends when the priest’s body arrived in the Christ the King Seminary Compound in E. Rodriguez, Quezon City for few days of wake. He was later on buried in the cemetery within the Christ the King compound. His family members from Indonesia did not have the opportunity to pay him their last respect.

The paradox this time around is that Fr. Franciskus Madhu, SVD, came from a country that has minority Christian population. He went to die as a young missionary in a country that prides itself as the biggest Christian country in the Far East. Our Indonesian friends still cannot understand why a young innocent priest can be killed just like that, I never understood myself how that can happen here in my own country – a “Christian Country.” It was one bad joke on April Fools Day. It remains to be a joke up to this day – The case is still unsolved.

Last April 1, 2012 our Indonesian friends celebrated Palm Sunday mass by commemorating Fr. Fransikus’ death on its 5th anniversary. We joined them in the mass and later, n the rosary and prayers at the cemetery. That started my Holy Week observance this year

As a Christian Filipino, I still have fits of discomfort whenever I remember what happened to Fr. Franciskus. He could have been one of those playing badminton with us here in Manila and he would have remained alive. He could have just stayed in Indonesia and he would have probably been also still alive. He should not have been a victim of murderer who, up to this day, is still roaming around. I still feel embarrassed in front of my Indonesian friends that my “Christian” country can allow the murder of an innocent priest to happen, or, at least, allow the case to remain unsolved.

This Holy Week, and future Holy Weeks, should serve as self-assessment sessions for every Christian Filipino to evaluate their being “Christians.” I am doing that now.

Will surely be back!

It has been since October that I posted in this blog. A lot of things have happened……Maldives, Comelec Advisory Council, Senate hearings, COMELEC’s Counting and Consolidation System, Option to Purchase the PCOS machines, CJ Impeachment, Kosovo, Libertas’ 10th, LENTE’s 5th, Chochoy’s quick recovery, Papua New Guinea, etc…I hope to write about each of them and share my thoughts, experiences and learnings. I met new friends and rekindled old acquaintances….

Despite the difficulties and uncertainties, life goes on, and how can it be better than having your wife and your daughter always there with you….

Conferences on Electoral Reforms and Random Thoughts

Tags

Election Dispute Resolution, Electoral Reform, EMB

Two election conferences in two weeks was quite heavy even for an election junkie like me.

In the middle of September (2011) I was invited by a friend who was UNDP Manila’s Democratic Governance Team Leader  Boyie Buendia, to participate in the Asian Regional Community of Practice Meeting on Electoral Cycle Support at the Hyatt Hotel in Ermita, Manila last September 26-28, 2011. I was also asked to do the presentation on Reforming Political Party in the Philippines. It was an international conference as it was attended by UNDP officials from all over Asia, by Election Management Bodies (EMBs) from the region, as well as by civil society groups. The chosen subject matters in the conference were those that concern substantive electoral issues, rather than the usual procedural election issues of registration, voting and counting processes. The topics were on electoral violence, gender and IP inclusiveness, political party reform, and the other broader electoral reform issues. The discussions and arguments were passionate and articulate. Enough exchanges were thrown on the floor to enable the participants to situate their own practical experiences with that of the others.

It was more than an eventful conference. Typhoon Pedring provided the exciting show, more than did Joey Ayala’s usual activism blended and humor-filled entertainment the night of the 26th. Pedring flooded the surrounding streets. The foreign participants were provided with a spectacle through the hotel’s glass walls, of the waves of Manila Bay pounding Roxas Boulevard’s sea walls. While the foreigners were wasting no time capturing what could be a once in a lifetime first hand encounter with a strong tropical cyclone, we Filipinos, particularly myself, was dumbfounded at the never before seen wrath of nature.

Any way, the conference went on, with candles and all; with guests not having had decent shower because water in the five star hotel was scarce. To save on power, breakout group presentations were made plenary presentations. My own presentation on Political Party, designed to provoke as small break our group, was presented before everyone (with not the intended impact, unfortunately)

The conference was capped by the appearance of Vice President Jojo Binay, who surprisingly showed his familiarity with development lingo in presenting his own thoughts on political and electoral reform. I was glad that the other speaker, Secretary Ronald Llamas (Political Affairs) mentioned one of my pet electoral reform, campaign finance reform, as one of the reforms the administration is looking at. Other speakers who impressed my a lot were Filipinos: Cookie Diokno, who spoke about Human Rights Approach to Electoral Reforms, Zenaida Pawid on Indigenous Peoples participation in mainstream political processes, Chair Etta Rosales, as well as the many other gender participation advocates from the different countries. I am glad I also had interesting informal table discussions with Noel Medina, Ferdie Rafanan, Debbie Garcia, etc.

The second conference was on strengthening the credibility of ASEAN EMBs held at Jakarta, Indonesia on October 3 to 5 at the grand Hotel Borobudur. I was initially recommended (separately) to be invited by PPCRV’s Ambassador Tita De Villa and NAMFREL’s Eric Alvia as early as the last week of August of 2011. However, I did not get my invitation until the UNDP conference when I saw International IDEA’s Adhy Aman, who asked me if I was going to the Jakarta conference. I told him I haven’t gotten my invitation to participate yet, and at that late stage I thought I was not going. Adhy however, made sure that I was invited and I was even asked to make a presentation in one of the breakout groups, particularly to discuss Election Dispute Resolution Mechanism in the Philippines (my other pet electoral reform issue). The conference was organized by the KPU (Election Commission) of Indonesia and by International IDEA.

My presentation was set within the backdrop of two complimentary frameworks of looking at election disputes in general. One was the concept of Electoral Justice developed by International IDEA and the other was the Seven International Standards of a sound EDR system developed by a panel of experts and compiled by IFES. Adhy Aman presented Electoral Justice; Beverly Thakur of IFES Philippines presented the IFES’s seven standards.  Mine was to situate the theories to Philippine practice and to hopefully generate an illustration that could be of use to other countries in the region (I hope to blog about my Jakarta presentation later)

One of the more interesting topics was the one on the use of election technology. Commissioner Augusto Gus Lagman made the presentation for the Philippine experience, which made the other Filipino participants a bit edgy, as he was, prior to being commissioner, an ardent critic of the Precinct Count Optical Scan or PCOS system adopted in the last 2010 Philippine election. They thought that rather than highlight the benefits of the PCOS, he would give a bad name to it. But lo and behold, Gus Lagman’s presentation was fair and academic, and in fact useful in terms of presenting to other countries the need to exercise the necessary prudence rather than jump right away to adopting automated election system.

In any case, the conference was an opportunity to meet and have a reunion with the other electoral reforms advocates in the region. The colleagues from ANFREL were there; Koul Panha, a Ramon Magsaysay  awardee from CONFREL of Cambodia was also there. Acquaintances from the electoral bodies of Indonesia, Thailand and Timor Leste were also in attendance.  The sweet and simple but elegant commissioner (and former Chair) of the US Federal Election Commission Ellen Weintraub was in attendance as well, and who was my seat mate in many of the sessions.

The highlight  of the conference was of course the opening ceremony at the Indonesian Presidential Palace where no less than President Susilo Bambang Yudhoyono declaring the conference open. All the participants had their chance to personally shake the hands of President SBY. The opening ceremony was capped by a light snack at the palace.

The cultural night organized by the KPU at their office was also unforgettable. The KPU officials were all dressed with traditional Indonesian evening attires, coupled with a buffet table full of delectable authentic Indonesian food.

The Filipino contingent was the biggest and the individual members have of course made their marks in the various conference sessions they attended. The heads of the delegation were Commissioners Rene Sarmiento and Gus Lagman. Other members of the Filipino team were Ambassador Tita De Villa, former Commissioner Goyo Larrazabal (both of PPCRV), Eric Alvia of Namfrel, Ramon Casiple of IPER, and Atty. Erwin Caliba of COMELEC.

It was fruitful and productive conference, with the participating officials and CSOs being able to share their experiences as well as learn from the experiences of the others. Reiterated is the fact that as neighbors, ASEAN countries have a lot of things in common and that shared experiences can mutually benefit everyone. It was a unanimous consensus that a similar activity should be undertaken in the future, perhaps with more specific issues to highlight.

Are all future Philippine elections required to be “automated”?

There are those who firmly believe that the Commission on Elections has no other choice but to conduct all future Philippine elections, including the ARMM election,  in an “automated” manner. The authority cited for this belief is the last sentence of  Section 5, Republic Act (RA) No. 8436 (as amended by Section 66, RA 9369), which states “..(i)n succeeding regular national and local elections, the AES (Automated Election System) shall be implemented nationwide.“

This is not how I see it. I believe that RA 8436, as amended by RA 9369, merely gives COMELEC the authority “to use an automated election system or systems in the same election in different provinces, whether paper-based or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises” (Sec. 5, RA 8436, as amended). It other words, COMELEC is merely given by law the discretion to prescribe “the adoption and use of the most suitable technology of demonstrated capability taking into account the situation prevailing in the area and the funds available for the purpose” (Sec. 1, RA 8436, as amended by RA 9369). The law does not constrain COMELEC to adopt “automated elections” only.

Thus, it is possible under existing election laws to have fully “automated” processes from voting to counting up to vote transmission and result consolidation, as it is possible to “automate” only certain stages of the process  like what happened in the 2010 elections. In said election, although voting was “manual,” the counting, transmission, and result consolidation processes were “automated.” Stretching it further, it is still possible to have a full “manual” process, as what was adopted in the recent 2010 Barangay (Village) and Sangguniang Kabataan (Youth Council) elections.  Theoretically therefore, future Philippine elections can still be fully manual, as it is likewise possible that they can be fully automated. Similarly, elections can be only partially automated and partially manual.

The portion of Section 5, RA 8436, cited above that seems to require all future regular elections to be “automated” nationwide should be construed in the context of the phased implementation of the law. RA 9369 was supposed to be implemented in the May 2007 election but because the law was passed only in January 2007, COMELEC was allowed in said election to automate only in certain constituencies. The cited portion, to me, is merely intended to emphasize that the law has a nationwide application. It does not contradict the real intent of the legislation.

The essence of RAs 8436 and 9369 is to give COMELEC reasonable flexibility to choose from among the available election systems, given the prevailing situation and context, as well as the resources available. The authority allowing COMELEC to be flexible in its choice of the system to be used in an election,  is a welcome departure from the rigid requirements of the Omnibus Election Code (Batas Pambansa (BP)  Blg. 881 (1985)). BP 881  legislated in detail the procedures for preparing and for running elections, effectively preventing election managers from responding adequately to unforeseen situations, or from using tools of modern technology to make the processes more efficient. The grant of flexibility is a positive development, but interpreting the law to mean that future elections can only be “automated” is contrary to the legislative intent, which is to grant COMELEC reasonable flexibility in performing its job.

In any case, RA 9369 imposes certain standards and conditions that must be used by COMELEC in choosing a system. First, is the adoption of  an “appropriate technology” for an election, which simply means that it should be a technology that is suited to the Philippine context. The power and telecommunication infrastructure in the area should be considered. The readiness and the acceptability by the voters and the candidates  of the system to be adopted, which are  essential to giving credibility to the election results, must likewise be considered. The resources that the country can spare for a modernized electoral process is also an important consideration. It can never be justified to sacrifice basic social services in favor of a fancier election system in the allocation of usually limited state funds. Second, RA 9369  itself specifies the minimum requirements for the technology to be chosen  (Section 7). Third, an Advisory Council composed of technology experts must also advise COMELEC in its choice of technology and system and that a Technical Evaluation Committee must assess the readiness of the election system chosen before it is actually used.

In the end, the most crucial factor in choosing the most appropriate election technology is the capacity and competence of the COMELEC in making its choice. It should be able to make well-studied and independent assessment of what election system is to be used. It should be able to run elections using the chosen system and decide on crucial policy issues independent of what the technology suppliers would say. The Commissioners themselves must have at least  minimum knowledge of modern election technology to enable them to competently decide on important policy issues. The COMELEC bureaucracy should have enough technology competent personnel so as not to make the institution rely too much on outside help, including those coming from technology suppliers.  It is COMELEC that is ultimately responsible and accountable for the choice of the election system and the credibility of the election results.

In March 2008, I wrote an article on the applicability of RA 9369 in the then upcoming August 2008 ARMM elections. Though the 2011 ARMM election is effectively postponed, this article may find some use in understanding the use of election technology in ARMM. I am gladly sharing  the article to those who may be interested. Please just click this link  http://www.ifes.org/Content/Publications/Reports/2008/Briefing-Paper-on-Republic-Act-No-9369-and-the-Automated-Election-System.aspx?p=1

Some Efforts at Reforming Election Adjudication

I was privileged to have been invited last August 18 and August 25, 2011 to the Commission on Electionto be a resource person in the organizational meeting of the group  tasked to implement the plan to improve the institution’s capacity to adjudicate election disputes.  Also invited on both dates was my colleague in Libertas, Atty. Vince Yambao.

Vince and I were asked to discuss in the August 18 meeting the findings of Libertas’ Baseline Study on the State of Election Adjudication in the Philippines published in 2008 to help provide a framework for the work and activities of the group. Vince was the head writer of the study and I was the election law consultant.

In attendance were Commissioners Lucenito Tagle and Christian Robert Lim, and about 20 COMELEC lawyers involved in adjudicating election cases. I started with presenting to the group some internationally accepted standards that are used to assess the sufficiency of a country’s election adjudication system. Vince, on the other hand, made reference to the findings and results of the Baseline Study in pointing out some areas in the rules of procedures that can be improved on.

As the free wheeling discussion went on, the circuitous process by which election offenses are being resolved was put in the agenda. Thus, recommendations like delegating to the Regional Election Director the authority to decide on a Preliminary Investigation, without the case having to reach the Commission En Banc, were forwarded. The intention is to remedy the situation where the Commissioners are deluged with hundreds of election offenses cases to resolved, among the  protest cases that they are expected to finish in timely manner. The procedure before the Provincial and City Prosecutors in ordinary criminal cases was cited as a model that COMELEC can follow.

It was also suggested, as an alternative, that instead of the Commissioners having to write their ponencia in every preliminary investigation case that they decide, the Commission en banc can just resolved, in a Minute Resolution, to approve or disapprove the recommendations and draft resolutions of the investigating prosecutors.

Later, I proposed that filing of Petitions for accreditation and registration of political parties and party list groups be given a deadline of one year before election. The idea is to free COMELEC from processing these kinds of petitions a few months before election day, thus giving the poll body more time  to manage and run the election better. Parties and Party list groups are anyway required to be already in existence way before election they hope to participate in.

August 18 Meeting in COMELEC for Election Adjudication Reform

As the discussion was going on, Chairman Brillantes arrived in a bright yellow vest and heartily participated in the discussion. The Chair and the commissioners huddled every time a proposal is raised. They appeared to be in agreement with most of the suggestions put on the table. They even thought that the deadline for the Petitions for accreditation be set earlier, like 18 months before elections, rather than one year.

At the end of the August 18 meeting, it was decided that the group meet again, with Chairman Brillantes directing the organizer to make sure that he is invited the next time. (It was explained to him that only Commissioners Tagle and Lim were invited because they are the identified “champions” of the group)

The next meeting came yesterday August 25, and this time around election lawyers George Erwin Garcia and Romulo Makalintal were invited. Chair Brillantes came on time, Commissioner Lagman also attended with Commissioners Tagle and Lim. Atty. Garcia offered comprehensive suggestions on possible amendment of the vintage 1993 COMELEC Rules of Procedures, which. as  he pointed out, even contained provisions that were already declared invalid by the Supreme Court. Atty. Makalintal, for his part, proposed that COMELEC should filter out unmeritorious cases at the outset to free the poll body of nuisance election suits.

Election Adjudication Reform Meeting

Following some of the basic issues raised by Atty. Garcia, I suggested that COMELEC can start reform by identifying matters which are basically administrative in nature and distinguish them from those that are quasi-judicial. This is to help the institution clarify for itself how it should handle matters that are brought before it. Vince cited the case of Baytan vs. Comelec which made a distinction between the administrative and quasi-judicial function of COMELEC, as a possible guide. A fiery and animated, but civil, arguments ensued among the Commissioners and senior lawyers about the matter. A lot of other issues came out, which likewise generated passionate but healthy exchanges.

For his part ommissioner Lagman cited the need to use electronic case management system in improving the docket management of COMELEC cases. He also proposed the idea of allowing electronic filing of pleadings.

In the end, it was resolved that a draft Rules of Procedure be made in time for the next meeting. Participants were asked to forward their proposals.

“…and let perpetual light shine upon him”

A tragedy struck the family, and caused me to hibernate from blogging for while . I cannot bring myself to write about anything for quite some time, but I life has to move on, to face our own struggle as pilgrims in this world.

“Eternal Rest be granted unto the soul of Joshua ….. and let perpetual light shine upon him… May he rest in peace, Amen”

Of Election Investigations and the True Mandate of the People

Consistent with the basic essence of democracy as expressed in the words “sovereignty resides in the people and all government authority emanates from them,” the process by which the true mandate of the people is to be determined must involve considering each and every single vote validly cast in an election.  Not a single vote should be disregarded. It is in election that a balut vendor can truly be considered to be at par and equal with the wealthiest business tycoon.  Every vote freely expressed in a ballot is sacred.

This is precisely the principle that I was trying to highlight in my earlier blog “Proving election fraud is one thing, finding out who won is another.” The investigations to be conducted by COMELEC and the Department of Justice are supposed to hold those who might have been responsible for the scandalous election anomalies in the 2004 and 2007 elections accountable. If GMA is found to be involved, then we can even say that she should have been disqualified or impeached from office. But finding out who the true winner was, the one who truly obtained the highest number of valid votes in the 2004 election,  will have to involve a different process altogether, a process  that is appropriate for the purpose.

Two days ago (July 28, 2011), a reporter from GMA News requested me to be interviewed by phone on the same topic I blogged about. Though I expected my inputs to be just a part of a news article on the subject, I did not expect that I would be the subject of the news myself. What came out was a “breaking news” article with a heading “Poll fraud doesn’t mean FPJ won in ’04′ – election lawyer.” In the article, I was quoted to have said that “Kung nandaya si kuwan, hindi ibig sabihin nanalo ang dinaya.” I thought I was just helping the reporter contextualize the issues amid all these raging news about election fraud. As a mere interviewee, I had no control about how the news story was actually written and I think it failed to articulate the exact point that I was driving at. I feel I was somewhat misquoted.

What followed were comments from online readers, some of whom cursed me for what they thought was my supposedly having forwarded the position that FPJ lost and GMA won, despite the evidence of fraud that are now coming out. I was even falsely accused of being “bayaran.”  Although I can just assume that these people were either rabid pro FPJ or anti-GMA fanatics who can never accept adverse objective points of views, those cruel and unfair comments hit me hard. This blogsite and my occasional media interviews are my way of contributing to the need of increasing public awareness and understanding of election concepts and principles. It is an advocacy for me and I am not paid for these sharings.

Like many others, I personally am unsure who actually won in that election. I was just trying to state and emphasize a core democratic principle to give a context to all these big news about election cheating. (By the way, I did not vote for GMA or FPJ)   There were also a few positive comments though, with some expressing appreciation at my having clarified the nuances of the issue.

In any case, the Comelec and DOJ investigations (prescription issues taken aside)  should tell us how the instances of fraud were committed and who committed them.  Those found responsible should be prosecuted relentlessly and be held accountable pursuant to applicable laws, even if they would include GMA, FG, and their cohorts in the police, military, and in COMELEC. This should be the direction of the investigations regardless of how many votes are affected. But even if incidental to the investigations, substantial fraudulent counts and tallies are discovered, these findings cannot be the basis for concluding who truly won the 2004 presidential elections.

While we should be making sure that accountability for electoral fraud is promoted and encouraged, we should not lose sight of the basic principle that in determining the true mandate of the people, every vote counts and should be counted, even if only for the purpose of putting a  footnote in our history.

Proving election fraud is one thing, finding out who won is another.

As part of my daily morning routine, I turned my laptop on early this morning and checked the news in the internet . What greeted me was the Inquirer online headline about the exposés of police operatives about their involvement in the switching of election returns (ERs) at the Batasang Pambansa complex in 2005. (See http://newsinfo.inquirer.net/31533/%E2%80%98we-switched-ers-for-gloria-arroyo%E2%80%99)

The switching was intended to make sure that when the returns are used in the then pending election protest of Ferdinando Poe Jr. (FPJ) against Gloria Macapagal Arroyo (GMA) before the Presidential Electoral Tribunal (the Supreme Court), the results as proclaimed or certified by the National Board of Canvassers (Congress) in the 2004 presidential election would be affirmed.

This nefarious practice is known among election law practitioners (lawyers and ballot revisors) as “post election operation.” This involves post election tampering of election documents, which are used as evidence in pending election cases to ensure favorable decision by the tribunal hearing the case. It could be used to benefit either the protestee or respondent or the protestant.  It is believed that the practice have been resorted to in many local contests as well.

Anyway, as events unfolded, the ERs were never used as FPJ’s protest was dismissed because of his untimely passing away. What could have been the result of the protests has been the subject of endless speculations.

Recently, and with a new administration in power, initiatives are being made to revisit and investigate what really happened in 2004. While there is a general consensus that those who were responsible for what was believed to be a fraudulent election should be held accountable, there are also  those who would want to know, just for the sake of “correcting history” or putting an “asterisk” or a “footnote” in our history books, who really won in that election.

Tampering a single ballot affecting a single vote is as reprehensible as tampering returns and canvass certificates affecting a million votes. Election cheating in what ever form or magnitude is an assault on people’s sovereignty and the perpetrators should all be held accountable. This is true whether or not cheating affects the results of the election.

Having proven election fraud however does not necessarily lead to a conclusion that the cheated candidate is the true winner in an election. Even if the cheating candidate would be disqualified or be booted out of office, the cheated candidate could not necessarily be said to have obtained the mandate of the people.

The election winner or the true choice of the people, under  our system, is determined by finding out who obtained the highest number of valid votes and this can only be done by the count of  each and every vote cast. The primary count is done at the precinct level and the results are summarized in documents using ERs and canvass certificate (COCs) at the various canvassing levels. The proclamation of winners are based on the presumed correct count of all the valid votes.

A candidate who claims that the vote count was incorrect or anomalous and that if a correct tally is made he or she would end up having the highest number of valid votes can initiate an Election Protest. A protest case involves the identification of questioned votes, leaving the uncontested ones as conclusively valid votes. The tribunal or court will then evaluate the objections on the contested votes and rule to either admit them as valid or reject them as invalid. The votes adjudicated to be valid will then be added to the uncontested votes, while those found to be invalid will be subtracted. The net result of the count of the valid votes is the election result and will determine who actually won. This same principle applies whether elections are automated or manual.

Ballots need not be the sole evidence for an election protest. ERs and COCs can also be used  as primary evidence if protest issues involve wrongful or fraudulent summarizing or tallying of results at the canvass levels, rather than erroneous or fraudulent vote appreciation and count at the precinct level. But similarly, the decision will have to be on the basis of how much vote are added and/or subtracted to come up with the final election result.

Of course, election fraud can be discovered along the way. In fact,the  grounds most used for invalidating votes under the manual write-in voting system are those that involve multiple ballots having been written on by one and the same person, or a single ballot written on by more than one person. There are also invalidations based on ballot markings. These are unquestionably election fraud. They should merit criminal prosecution against the perpetrators, regardless of the results of the election protest. But the ultimate outcome of a protest case should be to determine who actually obtained the highest number of valid votes, independent of the criminal proceedings.

I fully agree and support the efforts of COMELEC and the Department of Justice to investigate the election fraud and anomalies that happened in the 2004 and 2007 elections. The legal issue of prescription aside, the perpetrators of the crimes, including possibly GMA, should be held accountable if only to help make sure that the same would serve as a fraud deterrence in future election.

I also somewhat agree, the expenditure of public funds aside, that determining the true winner of the 2004 election might be a good policy and is good for our history . But care should be taken in any effort along this line. All votes cast must be considered. I am not saying that all votes cast in 2004 should be recounted or re tallied, but there has to be a process by which questionable votes can be evaluated through careful examination of election documents. Votes that are not questioned are to be presumed valid. There should be a process similar to an election contest, although the rigors of revision and vote appreciation maybe dispensed with. Any other manner of investigation might just result to mere anecdotal results that will have no more than propaganda value. Extrapolation as a basis for making a conclusion as to the  true will of the people will not be credible and can only be a waste of of taxpayers money if undertaken using public funds.

Finally, regardless of where these initiatives will eventually lead to, I believe that citizens vigilance in monitoring elections, which we Filipinos are good at and known for, should continuously be pursued relentlessly in future elections, whether they be automated or manual. This should include monitoring adjudication of election contests after election. This is to make sure that election fraud and anomalies are minimized, if not, outrightly prevented. We should learn from the lessons of the past and surely the experience in the 2004 and 2007 elections are good source of election education for all of us.