Updating Philippine Election Laws, An Urgent Matter

(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workers from civil society, in reviewing existing election laws, in identifying areas in our laws that have become outdated, and in providing a takeoff point for proposing amendments and modifications to the existing legal framework of elections in the country.)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.

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The Irritating “Epals” and the Laws on “Premature Campaigning”

People are irritated by posters and streamers of politicians proliferating in the streets of Metro Manila and in major cities around the country. Election is still ten months away. Considering that election campaigning is prohibited outside of the campaign period (which starts in February and March 2013) many believe that the posters, tarpaulin, and signages that we see at this early stage should be considered illegal.

What do Philippine laws say?

Section 5 of RA 7166 (which updated Section 3 of the Omnibus Election Code (OEC)) provides the specific campaign period for candidates. To those running for President, Vice-President, and in the Senate (as well as parties competing in the party-list system of representation), the campaign period is 90 days before election. All other candidates have 45 days before election to campaign.

On the other hand, it is Section 80 of the OEC that makes it unlawful for any person to campaign outside of the campaign period. Aside from imposing criminal sanctions to those violating Section 80, an erring candidate can also be disqualified from continuing as a candidate (Section 68 of the OEC).

Our election laws, however, have a technical definition of “election campaigning” From this we can infer whether a person is technically “campaigning” or not.

Section 79 (b) of the OEC defines election campaign as an act designed to promote the election or defeat of a “candidate.” A “candidate,” according to Section 79 (a) of the OEC, is one who has filed a certificate of candidacy (or COC), by himself or through a political party.

Thus, an act can only be considered as “election campaigning” when it is done to promote the election or defeat of one who has already filed his certificate of candidacy. This means that how ever one publicly extols the virtues of a person as most qualified for public office, if that person has yet to file his COC, the “campaigner” cannot as of yet be considered “campaigning.” In other words, no one can be punished for “prematurely campaigning” under Section 80 of the Election Code if the “campaign” is for someone who is not yet legally a candidate.

In previous elections when the voting and counting process was still principally manual, a COC may be filed at the appropriate office of  the COMELEC not later than one day before the start of the campaign period. In order to maximize their opportunity to campaign without being held to liable, candidates usually filed their COCs at the last hours of the last day.

When automated election was introduced by RA 8436 in 1997,  the deadline for filing COCs was advanced to “not later than 120 days before election”. It was initially believed that candidates who filed their COCs at the earlier deadline can be punished for premature campaigning if they “campaign” between the date of their COC filing and the start of the campaign period. But this amendment provided otherwise. Section 11 of the law states:

“….For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: …… Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period…

Thus, even if the COCs are filed way before the campaign period, candidates, even if they campaign (in a layman’s sense), will not be liable for violating the laws on campaigning until the start of the campaign period. It would only be then that “unlawful acts or omissions applicable to candidates shall take effect.

The Supreme Court had the opportunity to interpret this law in the case of Lanot vs. COMELEC (November 2006). In this case involving the mayoral contest for Pasig in the 2004 election, the Supreme Court, interpreting Section 11 of RA 8436, declared that to be a candidate, a person must have filed a COC and that the campaign period has already started. Thus, even if a person has already filed his COC, he or she technically cannot be considered a “candidate” until the start of the campaign period. He cannot therefore be held liable for any act of “campaigning” prior to the start of the campaign period.

In 2007, Republic Act 9369, the latest Automated Election Law, was passed. Section 11 of 8436 was modified by Section 13 of RA 9369, which reads:

….For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon that start of the aforesaid campaign period.

Not only did the amendatory law reiterate the exception in RA 8436, it even incorporated the Lanot interpretation by stressing all the more that a person can  be considered as a candidate ONLY when the campaign period starts.

The Supreme Court again was presented with another case involving this issue. In Penera vs. COMELEC (September 2009), the Supreme Court initially ruled to reverse the Lanot doctrine and declared that a candidate who files his or her COC may be disqualified for campaigning before the campaign period. However, in a resolution on a motion for reconsideration against the first Penera decision, the Supreme Court, in November 2009, reversed itself and reinstated the Lanot doctrine. This is the current state of the law on the matter.

Should we then just accept these irritating campaign propaganda? We can actually do something about them.

As sovereigns we can express our frustration and irritation by calling public attention and raising awareness to the erring politicians’ palusots. The shame campaign by a newly organized Anti-Epal Coalition is one such effective effort. Displays were actually removed by those who put them up after the epals have been ridiculed by citizens.

Politicians can also be asked about where they got the money, or why they are spending so much of their own money, to pay for those expensive ads. Incumbents who engage in “premature campaigning” have to show that no public funds was spent for the “epal” ads.

Next, is to campaign for the amendment of these useless laws. It is obvious that the lawmakers themselves expressly intended to exempt premature campaigning candidates from liability. The lawmakers deliberately placed the glaring loophole in the law.

It is unfortunate that COMELEC most of the time gets the bulk of the blame for failing to enforce the laws. Even the Supreme Court was criticized for its interpretation of the laws in the Lanot and Penera decisions.  But the problem are the laws themselves, and by necessary implication, the lawmakers who drafted these laws. Members of Congress who choose to ignore and maintain this irritating state of affair by refusing to enact better laws must also be also be held to account.

If taxpayers and citizens are to bark, it has to be at those who are truly responsible – those who benefit from the way things are, those who take advantage of the loopholes in the law. I guess everyone knows who these people are.

Certificates of Candidacy with SALNs, what do you think?

If there is one great thing that the recent impeachment proceedings achieved, it raised the standard of ethics and transparency in public service. The conviction of the Supreme Court Chief Justice has sent the message that everyone in government can be held accountable for misdeeds and omissions committed while in public office.

What the Aquino administration should do at this point is not only to follow through by holding the CJ criminally and civilly liable as well but to pursue, with the same energy and vigor, going after other high government officials who have committed the same infraction (including non-declaration of foreign currency deposits in the SALN), starting with those in its own backyard.

However, despite proof that impeachment as an accountability tool can actually work, suspicions of politics as the principal motivation for the decision against the former CJ will always be there. There will always be those who would say “weather-weather lang yan.” There are observations that some of the accusers themselves may be guilty of having done what the former CJ was found guilty of, if not worse.

It is therefore best to adopt transparency policies that should be consistently applied and implemented across the board, that is, to everyone in government, friends and foes alike, and be made effective at the earliest opportunity.

The earliest opportunity, at least for elective officials, is at the time when aspirants formally declare their intentions to be considered for public office. In our system, it is at the time of the filing of Certificates of Candidacy.

It may then be wise to require or mandate the submission of a sworn Statement of Assets Liabilities and Net Worth (SALN) as part of the Certificates of Candidacy for all those seeking public elective office. The SALNs together with the Certificates of Candidacy are to be considered public records, open to public scrutiny.

The benefits to this recommended requirements are:

1. Only candidates who are willing to be open and transparent about their assets can submit themselves to the judgments of voters.

2. Voters can potentially have more information and basis (business and financial interests and holdings) in evaluating the candidates they are going choose from. It is like providing the employers (the people) with more information in deciding who among the job applicants (the candidates) the will hire.

3. The SALNs can provide baseline information for monitoring compliance of candidates with campaign finance laws and regulations.

Other countries require statement of assets and liabilities with the nomination of candidates. India is one of them. There is no reason why Philippines cannot. Anchoring its government program on anti-corruption, the current administration must consider  pushing for this measure. It is one way of showing that it is putting its foot where its mouth is. Right now, Section 74 of the Omnibus Election Code provides the information that should be contained in the Certificates of Candidacy. None of them relates to SALN. It is time for Congress to consider making this requirement as one electoral reform measure.

What do you think?

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

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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. It was held 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 an side 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, were dumbfounded at the never before seen wrath of nature.

Anyway, 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 a small break out group, was presented before everyone (without 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 are 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 of 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 in 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. 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 in traditional Indonesian evening attires. The buffet table was 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,  and learned 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 6, 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.