(This is an edited excerpt from the introduction to the second edition of the “Roadmap for Updating Election Laws” which I prepared in February 2011. The roadmap is a tool intended to assist policy makers, election managers, and electoral reform workers from civil society, in reviewing existing election laws, in identifying areas in our laws that have become outdated, and in providing a takeoff point for proposing amendments and modifications to the existing legal framework of elections in the country.)

The preparation for the then upcoming May 10, 2010 election was underway when copies of the first roadmap were distributed. While many have recognized the need to have updated election laws, the excitement of the moment was on the preparation for the first ever nationwide “automated election.” The automation of the election process was seen by many, rightly or wrongly, as the answer to all our election ills. The policy makers, COMELEC, civil society monitoring groups, were all focused primarily on the election. Not much effort was placed at looking at the existing election laws and in determining which needed updating. Ironically, the dawning of the new age of automated elections has rendered many election laws obsolete.

The Precinct Count Optical Scan (PCOS) election system implemented in the May 10, 2010 election provided important inputs to the evaluation of current election laws. It is fair to judge the election as a qualified success. It was successful in the sense that it was able produce a relatively smooth and peaceful transition of power from the previous administration to the current one considering the highly charged political atmosphere. For the first time, candidates conceded defeat to the apparent winners as early as a day after the election.

On the other hand, the “success” has to be qualified by the numerous crucial glitches and procedural lapses that raised a lot of question on PCOS’s performance. Foremost of these relates to the so called CF (Compact Flash) card fiasco where discrepancies between the PCOS count and the mandatory manual count all over the country were discovered just a week before the election. Not a few people feared that the elections would no longer push through. It had definitely put into question the credibility of the process, and the acceptability of some election results, especially in close local contests.

Amidst the lingering debate as to whether or not the automated election experiment was a complete success, there is a consensus that Philippine elections henceforth will no longer be as before. It will no longer ignore the modern trends in election technology. Even if it were to be decided that the PCOS system used in the last election be discarded in favor of another system, going back completely to the old and tedious manual election process would be very unlikely, except probably as an ultimate fall back remedy. Even a scaled down automated system, as advocated by critics of the PCOS system used, would also employ some degree of modern election technology, absent in the last hundred years of manual election system. Our election has come to the modern age and this, no one can deny.

Thus, it is important that the Philippine legal framework of election adapt to the new realities. The basic election statute in the Philippines is still the 1985 vintage Omnibus Election Code (OEC). [1] Although it has already undergone several amendments, a substantial number of its provisions are still in effect. Notwithstanding the two laws passed by Congress in 1997 and 2007 allowing the adoption of “automated election system,” the 1985 Code is still referred to on matters not addressed by the new laws. The existing legal framework governing Philippine election obviously lacks coherence necessary to provide election managers sufficient guide in administering elections

Moreover, the OEC was drafted based on the old constitutional framework.  The current Constitution was adopted in 1987. The pre-1973 presidential form of government, with a bicameral legislature, was re-introduced and had replaced the modified parliamentary system provided under the previous 1973 Constitution. The 1987 Constitution also introduced the party-list system of representation in the House of Representatives. The new Constitution mandated the synchronization of elections from President down to the position of Municipal Councilors. It fixed the terms of office of Representatives and elective local government officials to three years, while the President, Vice President, and Senators have six-year terms. It also expressly mandated Congress to adopt a system of absentee voting for overseas Filipinos and an anti-political dynasty law. A multi-party system was encouraged in the charter, and voting became optional.[2] Political Party representation in the Board of Election Inspectors and in the Boards of Canvassers had been disallowed.[3]

After the 2010 elections and at the start of the term of the 15th Congress, numerous bills on amending the OEC were filed. Many of them were old recycled bills that failed to become law in the previous congresses, but quite a number are new.

A Push for a New Election Code

Despite the various election laws however, many of the provisions in the Code remain in the statute books. This has resulted in certain conceptual inconsistencies between new legislation and some of the old provisions of the Code. There is no coherence in our election laws. There is a lack of synergy among the different legislations. There are provisions in the 1985 Code that are no longer practical and suited to the current environment. A new code that will bring together the disjointed election laws and  hopefully update the entire legal framework governing elections to allow the country to jump to the modern times is most ideal.

However, the Philippine Congress seems to be slow in appreciating the need for a new election code. The COMELEC itself experienced this problem. In 1993, the poll body came up with several law reform proposals consistent with its Flexible Legal Framework objective towards achieving a modernized election.[4] The proposals were contained in what was then the proposed 1993 Election Code.[5] Congress however did not see the wisdom of passing an entirely new election code in a single piece of legislation. Only portions of the proposed Code became law. Election  law reform came on a piecemeal basis. Among these laws are: the Party-List System Act; the Voter Registration Act of 1986 adopting the system of continuing registration; the law authorizing COMELEC to adopt and use automated election system; and the Overseas Absentee Voting Act of 2003. The only reform item that is mandated by the Constitution but has yet to be legislated by Congress is an anti-dynasty legislation.

It is important that Congress should see the importance of updating the the legal framework of our election. Reform in this area is crucial in achieving complete electoral reforms needed in our country. This is imperative now as it has ever been before. Congress, the Comelec, and other electoral reform advocates must get together to push for a New Election Code ASAP.

[1] Batas Pambansa Blg. 881 was passed by the Batasang Pambansa (National Assembly) on December 3, 1985. The Batasang Pambansa was the unicameral legislature under the 1973 Constitution. The 1973 Constitution called for a modified parliamentary system.

[2] Section 4 of the OEC. The word “may” in the phrase “Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law…” in Section 1 of Article V of the Constitution is the basis for the conclusion that voting is no longer obligatory.

[3] Section 6 Article IX-C of the Constitution.

[4] In 1992 the COMELEC, the Commissioners and its senior head office and field directors, decided to adopt a program called MODEX, or Modernization and Excellence, that would improve and develop Philippine electoral system. The adoption of flexible legal framework was one of the components of MODEX. The Chair of the COMELEC then was Christian S. Monsod, during whose term the agency got the highest acceptance rating in its history of existence. Among the salient features of the proposed Code were:

Authorization for the Commission on Elections to adopt new systems, forms, technological devices and safeguards for voting, counting and canvassing

Computerization of the list voters

Disqualification from running for public office of:

  • the chairman, members, officials and employees of the commission on Elections, in elections immediately following their retirement, resignation or cessation from office
  • any candidate who withdraws his candidacy, in the same election during which he withdraws his candidacy
  • Any person who fails to pay the administrative fine for failure to file a sworn statement of electoral contributions and expenditures
  • Prohibition against turncoatism by disqualifying from running for, assuming, public office any elective public officer or candidate who changes his political party affiliation within 6 months immediately preceding an election, after due notice and hearing.
  • Prohibition on candidacy of public official in a special election called to fill the vacancy caused by his resignation, retirement or removal from office
  • Requirement on submission by candidate, together with his certificate of candidate, of certified true copies of his income tax returns.
  • Non-exemption of any elective official running from the office of the president or Vice President from those deemed automatically resigned from office upon the filing of their certificate of candidacies.
  • Prohibition on political dynasty
  • Substitution of candidates in case of death, disqualification or withdrawal
  • Proclamation of lone candidate in non-adversarial elections
  • Expansion of the scope of the definition of a candidate
  • Call for continuation of suspended election
  • Continuing election education, including provision in school curriculum of a subject on elections
  • Sectoral representatives
  • Party list system of representation
  • System of Recall
  • System of initiative or referendum
  • System of absentee voting
  • Stickers allowed in places other than candidates’ residence and party headquarters
  • Continuing system of registration of voters
  • Reduction in number of ballots for distribution to precincts
  • Reduction in number of times a voter is allowed to change spoiled ballot
  • Transfer of venue for counting
  • Copy of the election returns and certificate of canvass to be given to a media-based unofficial count designated by the commission
  • Elimination of one step in the provincial canvassing process
  • Recount of votes in case no election returns are submitted to the board of canvassers
  • Manifest errors in election returns
  • Call for special elections when integrity of ballots are violated
  • Improvement of procedures in pre-proclamation controversies
  • Introduction of evidence aliunde in pre-proclamation controversies
  • Fixes period for deciding election contests
  • In quo warranto cases, candidate who obtained second highest number of votes is declared winner.
  • No execution of judgment in appealed election cases
  • Prohibition on undue ecclesiastical influence
  • Ban on political advertisements in media
  • Limitation on media personalities
  • Stricter rules on the use of public transportation during elections
  • Elimination of the use of emergency ballots
  • Change in procedure in the application of the indelible ink
  • Disposition of unused ballots
  • Penalizes as election offense
    • 1) Coercion of election officials and employees
    • 2) Computer fraud

[5] Senate Bill No. 1427 and House Bill No. 10911 in the 9th Congress.