Electoral Reform

The Need for an Electoral Reform By Ramon T. Ayco November 2007

I.

Introduction

Elections are integral to democratic governance. It is one of the most important ways citizens can participate in decisions that affect their lives and hold their representatives accountable for results. Through the mechanism of elections, politicians are held accountable for their actions, and are compelled to introduce policies that are reflective of and responsive to public opinion. There are three main functions of elections in a democracy. First, they are a means for people to choose their representatives and/or leaders in legislative and executive branches of government. Second, elections are a means of choosing governments; indeed, in many (though not all) parts of the world, elections are primarily a contest between competing political parties to see who will control the government. Finally, elections confer legitimacy on the political system. Especially since the end of the Cold War and the emergence of democratic governance around the world, elections have become an essential element in constituting a legitimate government. Elections are the paradigm of enforceable accountability: when a government fails to live up to the needs and desires of the people, the people can throw it out of office. No form of accountability is more direct, no form of participation is more egalitarian. But elections cannot be equated to democracy as a whole. Building a democracy is much more than regular, competitive and transparent elections, vital as these are. What happens before and after elections is equally important, as is the capacity of voters to demand that electoral processes are translated into genuine democratic gains for the population. In the Philippines, there is a popular saying that “there are two types of candidates in elections: those who win and those who get cheated by their opponents.” Nobody, or very few candidates, are courageous enough to admit that they lost in election, and they are capitalizing on the fact that election in the country is really fraudulent. The past 60 years of the Philippine history already has a reputation of electoral fraud, proven or otherwise. It is just that no one ever gets caught or punished. Analysts assert that the people have always been desensitized to their politicians cheating during elections. Accordingly, people generally doubt their leaders' mandates. The people are often suspicious of the winners, especially in close poll results, but do nothing. Constituents generally allow their leaders, assuming proven acts of cheating, to get away with it until the scandal erupted. One of the recent incidents of electoral fraud in the Philippines involves no other than President Gloria Macapagal Arroyo (PGMA) in May 2004 elections in the well known “Hello Garci

Scandal”.1 And just like any other politicians accused of cheating, she just simply denied doing it. What she only admitted was the fact that she was really the one in the cassette tape talking to former Commission on Election (COMELEC) Commissioner Virgilio Garcillano. And for this, she just made a televised public apology saying “I’m Sorry!”. And that’s all. Whether PGMA is guilty or not -- which is one of the principal bases for a series of impeachment cases against her -- the need for electoral reforms in the Philippines is real.

II. Historical Background Elections and other democratic institutions were primarily imported into the Philippines from Western models. During the Spanish colonialism, Spain introduced elections and municipal elections, not with the interest of democracy but rather to impose order. By supporting one of the political candidates, they increased factionalism, subtly teaching Filipinos to use government for personal ends not public good (Paredes, 1989). The emergence of institutions such as constitutional law, the secret ballot, the referendum, political parties and legislature in the Philippines was a product of American colonialism. Hence, colonialism became the defining force in the emergence of democracy in the Philippine nationstate. The Philippines as a conquest colony underwent political development predicated on the interest, influence and power of the colonial authorities (Paredes, 1989: 2-4). After establishing total control of the Philippines by 1901, the American colonizers governed their newly acquired territory through the appointive Philippine Commission under the supervision of the United States governor general. The commission performed both executive and legislative functions, with token Filipino participation, until 1907. The Philippine Commission enacted Acts No. 82 and No. 83, providing for the organization of municipal and provincial local governments. A limited electorate (only male residents of municipality who own properties worth at least P500) was given the right to elect the municipal president (mayor), vice-president and the council. Provinces were governed by a three-member board, headed by a governor who was indirectly elected by the municipal councilors in the province. Thus, the provincial elections of 1902, 1904 and 1906 were reflections of municipal politics (De Guzman, Reforma and Panganiban, 1988; Franco, 2000; Hutchcroft, 2000). Consequently, ‘from local elections in 1901, to legislative elections in 1907, and presidential elections in 1935, the Americans built electoral politics from the municipality upwards, thereby entrenching provincial families in both local and national offices’ (McCoy, 1994: 12).

1

The scandal involves incumbent president Gloria Macapagal-Arroyo, who allegedly rigged the 2004 national election in her favor. It began in June 2005 when audio recordings of a phone call conversation between President Arroyo and then Election Commissioner Virgilio Garcillano allegedly talking about the rigging of the 2004 national election results, were released to the public. The "Hello Garci" tapes suggested that Gloria MacapagalArroyo used members of the Commission on Elections, Philippine National Police, and the Armed Forces of the Philippines to manipulate the result of the 2004 presidential elections.

Philippine party politics, at that period, was characterized by clientelist interactions between the Filipino politicians and their American colonial patrons. Characteristic of most colonial regimes, the Americans implemented a system of indirect administration utilizing dependable native clients. The measure of success for an American colonial official was their ability to cultivate and manipulate effective local clients in implementing American policies. Thus, electoral campaigns were neither venues for the discussion of social issues nor mass appeals for voters, but negotiations between national political personalities and the provincial landowning elites (Grossholtz, 1964; Tancangco, 1988; Paredes, 1989).

Elections in the Commonwealth The 1935 constitution that established the Philippine Commonwealth provided for a presidential form of government patterned on the United States model. The constitution originally introduced a unicameral National Assembly, but an amendment in 1940 re-established the bicameral legislature, which remained until 1972 (Hartmann, Hassall and Santos, 2001). The right of suffrage was granted to all Filipinos who were: (1) 21 years and above; (2) able to read and write English or Spanish; and (3) residents of the Philippines for at least one year and of the municipality in which they proposed to vote for at least six months prior to the date of the elections. It also provided for the extension of the right of suffrage to women. By 1939, all existing election laws were consolidated into an Election Code (Commonwealth Act No. 357) that empowered the secretary of the interior to supervise all types of election. However, for the purpose of insulating the electoral process from partisan politics, a constitutional amendment was passed and approved in a plebiscite to create an independent Commission on Elections (COMELEC) (Tancangco, 1988: 82-83). Five elections were held in the Commonwealth period: the presidential and legislative elections of 1935; the local elections of 1937; the legislative elections of 1938; the local elections of 1940; and the presidential and legislative elections of 1941. American colonial rule left the country with a weak central state during the Commonwealth era. It had to contend with dispersed local centres of power that possessed varying degrees of autonomy all over the archipelago. At the heart of these power centres were the landed elites who had the uncanny ability to survive both war and peasant rebellion. The introduction of an electoral system for electing public officials provided the landed elite with a venue to consolidate and expand their power. The landed elites or ‘oligarchs’, through their control of the Congress, transformed themselves into a national oligarchy that successfully repulsed the government’s attempts at land reform. Thus, democratization of economic resources in the country was prevented (Rivera, 1994: 112-114).

Elections after the granting of independence When the Americans granted independence to the Philippines, the rivalry between the two parties — the Liberal Party (LP) and the Nationalista Party (NP)2 — dominated Philippine 2

During the American colonial period, there were two major parties – the Nacionalista Party (NP) and the Progresista Party (PP). The NP was formed on 12 March1907 as a merger of several nationalist movements and organizations pushing for Philippine independence. The PP was formerly the Partido Federalista – the country’s first political party organized in 1900 by a group of prominent, mostly Manila-based ilustrados to push for the

politics from 1946 until 1971. Both took turns to capture the presidency and controlling both chambers of Congress. The Liberals won the presidential elections of 1946, 1949 and 1961. The Nacionalistas won them in 1953, 1957, 1965 and 1969. However, despite their regular political intramurals,3 the two parties were identical in their elitist structures, social make-up, and policies (Lande, 1996). There were 14 senatorial elections in the post-war period. These included the regular and midterm elections between 1946 and 1971. The LP dominated the first three (1946, 1947 and 1949), while the NP continuously won the most number of seats in the succeeding five elections (1951, 1953, 1955, 1957 and 1959). Interestingly, the party that captured the presidency also won the most senatorial seats. Hence, the LP managed to regain its dominance in 1961 when it won the presidency. The election of 1963 was the only time that both parties split the seats equally at four each. Again, the NP captured the most seats in 1965, 1967 and 1969 under the Marcos administration.4 After the notorious Plaza Miranda bombing,5 the LP nearly swept the senatorial race of 1971. The mid-term senatorial election of 1971 was the last free elections in the Philippines as Marcos declared martial law the following year and abolished Congress.

Elections under Marcos dictatorship The declaration of martial law by President Ferdinand Marcos in September 1972 halted all party activities and intra-elite competition. Elections were cancelled for the first six years of martial law. In 1978, election was held for members of the Interim Batasang Pambansa (IBP).6 However, the revival of electoral politics under the Marcos authoritarian regime greatly restricted genuine party competition. Marcos began to institutionalize one-party dominance with the organization of the New Society Movement (Kilusang Bagong Lipunan, KBL) in 1978 (Tancangco, 1988). On the other hand, various opposition groups in the country established new parties. However, most of these parties were organized as regional parties that fielded candidates for specific regions instead of a

annexation to and statehood within the United States (Liang, 1970; Tancangco, 1988; Lande, 1996). The Liberal Party was formerly the ‘liberal wing’ of the NP that formally split off after an intense leadership struggle in 1946. 3

In Philippine journalistic parlance, ‘political intramurals’ refer to political contests or competitions.

4

Ferdinand Marcos was elected first to the House and later to the Senate as a staunch member of the Liberal Party. He became president of the LP and the Senate, but switched to the Nacionalista Party to become its presidential candidate in 1965. He won that year and made history in 1969 by being the only president ever to be re-elected.

5

Plaza Miranda in Quiapo, Manila was the Hyde Park of the Philippines, where political gatherings and rallies were common in the pre-martial law period. On 21 August 1971, grenades exploded at the LP political rally injuring candidates and party leaders, and killing some innocent by-standers. The opposition accused Marcos, who in turn pointed to communist insurgents as the culprit.

6

The Marcos Constitution (Article XVII of its Transitory Provisions) replaced the Philippine Congress with an Interim National Assembly. However, the Interim National Assembly never saw the light of day as amendments to the charter were made in 1976 replacing the Interim National Assembly with an Interim National Legislature (Interim Batasang Pambansa, IBP).

national constituency. The emergence of regional parties was an indication of the consolidation of the dictatorial regime and the splintering of opposition forces (Wurfel, 1988). The KBL continued to dominate succeeding electoral exercises such as the 1980 local elections, the 1981 presidential election and the 1984 Regular Batasang Pambansa (National Legislature) elections.7 The Marcos regime also introduced barangay elections in 1982 to replace the premartial law barrio as the basic unit of local governance. In addition, elections were held in 1979 and 1982 for members of the autonomous Regional Assembly in Mindanao (Regions IX and XII) in an attempt to placate the separatist movement led by the Moro National Liberation Front (MNLF). The Marcos regime allowed these electoral exercises to give itself a semblance of political legitimacy. However, it utilized its authoritarian powers to manipulate the electoral rules and institutions. For example, Presidential Decree No. 1296 (the election code that governed the conduct of the 1978 elections) allowed the block voting system which counts the vote for a party as a vote for all the individual candidates in the official ticket. The system gave the KBL undue advantage since it was the only party capable of mounting a nation-wide campaign. In addition, the system was prone to electoral fraud since it was easier to stuff ballot boxes with pre-filled ballots (Tancangco, 1988: 96). In the wake of the massive outpouring of protest and discontent following the assassination of opposition leader Benigno Aquino Jr. in August 1983, the leading opposition parties participated and performed relatively better in the May 1984 Batasang Pambansa elections. The opposition was led by the United Nationalist Democratic Organization (UNIDO) and the Partido Demokratiko Pilipino-Lakas ng Bayan (Philippine Democratic Party-People’s Power, PDPLaban). In an effort to again demonstrate his political legitimacy, Marcos called for a snap presidential election in 1985. Corazon C. Aquino, widow of the assassinated opposition leader, was the presidential candidate of the united opposition. Massive cheating by the administration triggered a failed military coup that led to a people’s uprising at EDSA.8 The ouster of Marcos dictatorship in February 1986, and the subsequent dismantling of its authoritarian infrastructure have resulted in the restoration of formal democratic institutions that include the pre-martial law presidential form of government with a bicameral legislature.

III.

The Current Electoral System

Under the 1987 constitution, the president and the vice-president are separately elected by a direct vote of the people through simple plurality nationwide. Both serve a term of six years. The 7

8

Marcos lifted martial law on 17 January 1981 with Presidential Proclamation No. 2045. This was followed by the election of members to the Regular Batasang Pambansa on 2 May 1984, in accordance with the 1973 constitution, as amended. Unlike the Interim Batasang Pambansa whose existence was transitory, the Regular Batasang Pambansa was envisaged as serving as the institutional national legislature. Epifanio de los Santos or EDSA is the name of the major highway that cuts across metropolitan Manila.

president is not eligible for any re-election while the vice-president sits one term out after serving for two successive terms. Since 1935, the Commission on Elections (COMELEC) has administered all electoral exercises in the Philippines. The Philippine Congress consists of the Senate and the House of Representatives. Half of the 24 senators are nationally elected at large9 every six years through simple plurality. At least one term out is imposed on senators who have served two consecutive terms. On the other hand, members of the House of Representatives are elected from single-member districts every three years. This electoral system, combined with a personality party system, grossly over-represents the largest parties and excludes minor parties. The inclusion of proportional representation (implemented through a party-list ballot) in a small portion of the lower chamber is an attempt to shift the focus from personalities to political parties (Wurfel, 1997). The 1991 Local Government Code provides for the election of local government officials. The governor, vice-governor, city mayor, city vice-mayor, municipal mayor, municipal vice-mayor and barangay chairman (village chairman) are elected at large in their respective areas. Elections are conducted through simple plurality every three years. Likewise, members of the local legislative assemblies such as the provincial board, city and municipal councils are elected by district and plurality vote. However, members of the village assembly are elected at large in their respective areas. Representatives and local government officials are allowed a maximum of three consecutive terms before they can again seek re-election. The constitution drafted under the Aquino administration provides for the development of a multi-party system under a presidential form of government. However, in spite of the emergence of several political parties in the post-Marcos era, these parties have been unable to transcend traditional modes of political contestation. Thus, they continue to be ineffectual in addressing the fundamental socio-economic issues plaguing Philippine society. Soon after the downfall of Marcos dictatorship the following elections were held: the 1987 congressional election; the 1988 local election; the 1992 synchronized election which combines the presidential, congressional and local elections; the 1995 Congress Elections; the 1998 synchronized election; the 2001 mid-term election which was held in a highly charged political atmosphere after the sudden fall of the Estrada administration; the 2004 synchronized elections; the 2007 (May) mid-term elections; and the 2007 (October) barangay and SK (Sangguniang Kabataan) elections. However, although the dictatorship was ousted and free elections have been re-established, the realization of full democracy in the Philippines is still far from reality. As said earlier, building a democracy means much more than regular, competitive and transparent elections, vital as these are. What happens before and after elections is equally important, as is the capacity of voters to demand that electoral processes are translated into genuine democratic gains for the population. What happens after the downfall of Marcos dictatorship is the revival of pre-martial law politics commonly known as traditional politics or “trapo” which characterizes graft and corruption, dominance of political dynasties, patronage and/or clientilist politics, personality politics, 9

In Philippine legal jargon, ‘at large’ refers to election by plurality formula instead of proportional representation.

turncoatism, etc.. And the elections themselves are still very defective of which fraud and violence (with 3Gs — gold, guns and goons) are still prevalent. We don’t have to go far to illustrate this. The very last elections, the 2004 and 2007 elections, are enough examples for this. Problems in COMELEC Although we can sight many electoral irregularities and anomalies, fraud and violence in the 2004 and 2007 elections in general, most of which were just ordinary happenings in the past elections, it is good to focus now on problems besetting the COMELEC. These will show that there is really a big space for the commission of electoral fraud. These may clarify that an election scandal as scandalous as “Hello Garci Scandal” could happen. The facts and information below (on 2004 elections) came primarily on monitoring work conducted by National Democratic Institute for International Affairs (NDI), in cooperation with Consortium for Elections and Political Processes partners, the International Republican Institute (IRI) and International Foundation for Electoral System (IFES). Their representatives were present in the Philippines from April 25, 2004 through July 31, 2004 and followed political developments in the country during the pre-election, Election Day and immediate post-election periods. For the 2004 elections, COMELEC was responsible for administering national, provincial, and local elections in more than 216,000 precincts. Fifty-five thousand candidates vied for the support of 43 million voters10 for a total of 17,700 positions: president, vice president, 12 senate seats, 265 members of congress, 53 party list representatives, 79 provincial governors, 758 provincial board members, 115 city mayors, 115 vice city mayors, 1,500 municipal mayors, 1,500 vice municipal mayors, 1,288 city councilors, and 12,017 municipal councilors. Several issues in the pre-election period related to voter registration, COMELEC’s plans for its own “Quick Count”, Commission appointments, and staff preparation and training generated anxiety among voters and candidates by creating opportunities for fraud. COMELEC’s handling of these issues contributed to a lack of public confidence in the Commission’s ability to conduct an election free from fraud.11 Appointment of Interim Commissioners When the impartiality of COMELEC is questioned, the focus is mostly on the commissioners themselves, who are believed to hold political allegiances, particularly to the presidency. It is has been alleged that the presidential appointment of commissioners is actively used by the incumbent to influence the electoral process. President Arroyo appointed five of the current

10

11

COMELEC reports the official number of registered voters as 43,536,028. . A Social Weather Station poll conducted 10 days before the election showed 60 percent public confidence in COMELEC, but only 27 percent in its Chairman Benjamin Abalos. Just days before the election, the archbishops of Manila and Davao, along with retired Cardinal Sin, publicly expressed a lack of confidence in COMELEC.

seven commissioners. This includes the then COMELEC chairman, Benjamin Abalos,12 who was previously a politician and allegedly intends to run for office again. Accused by some of being a politician and not an impartial administrator, the chairman is widely considered to be uninterested in management of COMELEC and is continually under attack from other stakeholders and the media. In a public survey conducted just before the 2004 elections, the chairman received a very low approval rating, while COMELEC as an organization fared better. There is also a perception among election stakeholders that incumbent commissioners have used their station for personal and political positioning by using the electoral appeals mechanism for political leverage. Aside from the COMELEC chairman, the circumstances surrounding the appointment of two new COMELEC commissioners were also questionable. In February 2004, President Arroyo appointed Vigilio Garcillano and Manuel Barcelona, Jr. as commissioners to COMELEC to replace retired Commissioners Ralph Lantion and Luzviminda Tancangco. These appointments were made while the Congress was in recess and the Committee on Appointments could not meet to vote on the appointments. Members of the political opposition argued that the Constitution prohibits the appointment of temporary or “acting” commissioners to COMELEC and because Congress was in recess at the time of the appointments and could not vote on them, the appointments were by definition temporary in nature and therefore, unconstitutional.13 The opposition further noted that the constitutional injunction against temporary appointments to COMELEC was designed to protect the body form political pressure because COMELEC commissioners serve staggered terms to prevent any one President from appointing a majority of the commission. With the appointments of Garcillano and Barcelona, President Arroyo had appointed five of the seven COMELEC commissioners. The Arroyo administration defended its authority to make the appointments and noted that the Constitution grants the President the power to make appointments during the recess of Congress. The government argued that such appointments, while only effective until either rejected by the Committee on Appointments or until the next adjournment of Congress, have been ruled permanent in nature by the Supreme Court because the President is prevented from removing ad interim appointees until rejected by the Committee on Appointments.14

12

On 1 October 2007, Benjamin Abalos resigned as chairman of the COMELEC. He was accused of bribery in open Senate Session by businessman Joey de Venecia (son of the House Speaker) and Secretary Romulo Neri, formerly Director General of the National Economic Development Authority. The said anomaly involves millions of dollars in bribes to help a Chinese firm, ZTE, win a $329 million contract to build a nationwide broadband network for the Philippine government. It was (Nueva Vizcaya) Rep. Carlos Padilla, in his privilege speech in the house of representatives, who made the first expose linking COMELEC Chairman Abalos to the ZTE-NBN deal and called for a congressional investigation.

13

Malaya News. Angara: Interim COMELEC Appointments Violate Charter, February 13, 2004.

14

Id.

Despite the criticism of the opposition, the two new appointees took their posts and served as commissioners for the May 10 elections.15 Failure to Automate the Election System The Election Modernization Act of 1997 authorizes COMELEC to create an automated election system for the process of voting, counting votes and canvassing/consolidating the results of the national and local elections. The Act also authorizes COMELEC to procure the appropriate materials and services necessary to create and maintain such a system.16 COMELEC initially intended to implement the automation during the May 11, 1998 presidential elections, but decided against full implementation at that time and limited the automation to the Autonomous Region of Muslim Mindanao (ARMM).17 In October 2002, COMELEC adopted Resolution 02-0170 which set forth a modernization program for the 2004 elections. In January 2003, President Arroyo issued an Executive Order allocating three billion pesos to fund the automation program. Later that month, COMELEC outlined procurement and bidding procedures and began accepting applications. On May 16, 2003 COMELEC awarded the automation project to Mega Pacific eSolutions Inc. Immediately following the award, several individuals and entities challenged the award on the basis that there were “glaring irregularities in the manner in which the bidding process had been conducted.” The case eventually went before the Supreme Court which ruled in January 2004 that COMELEC awarded the contract in “inexplicable haste” and without adequately observing mandatory technical and legal requirements. The court also noted that COMELEC accepted delivery of the computer hardware and software from Mega Pacific even though it had failed to pass eight “critical requirements designed to safeguard the integrity of the election.”18 15

Allegations of partisan politics surrounding the two new commissioners re-surfaced when a challenge was made to Ferdinand Poe’s ability to stand as a candidate for President. Petitioners sought to have Poe disqualified because they alleged that he could not be considered a Filipino citizen because his parents were not married at the time of his birth and his mother was not a citizen of the Philippines. The matter was originally brought before COMELEC and that commission ruled in favor of Poe, though Commissioners Barcelona and Garcillano, along with Commissioner Florentino Tuason, voted to disqualify Poe. The three Commissioners each submitted a dissenting opinion that was part of an appeal to the Supreme Court asking it to overturn the COMELEC decision and disqualify Poe. The Supreme Court ultimately ruled 8-5 in favor of Poe’s candidacy, but the controversy surrounding the Commissioners actions in supporting Poe’s disqualification coupled with the circumstances surrounding their own appointments to the Commission bolstered the growing public perception that their appointments to COMELEC were political in nature.

16

Election Modernization Act, RA No. 8436 (1997).

17

Due to the failure of the machines to correctly read some ballots in one town, COMELEC later ordered a manual count for the entire Province of Sulu.

18

Information Technology Foundation of the Philippines et al. v. Commission on Elections, et al. Phil. S. Ct. No. 159139, January 13, 2004. The critical areas in which the Mega Pacific automated technology failed to safeguard the integrity of the election included: 1) Failed to achieve the accuracy rating criteria of 99.9995 percent set-up by the COMELEC itself; 2) Unable to detect previously downloaded results at various canvassing or

The Court voided the contract with Mega Pacific and noted that COMELEC’s actions in awarding the contract “cast serious doubts upon the poll body’s ability and capacity to conduct automated elections.”19 Faced with an abbreviated time period within which to finalize election preparations, COMELEC officials briefly considered continuing with plans for an automated election system and using the computers and software supplied by Mega Pacific in spite of the Supreme Court decision on the matter. In the end, COMELEC accepted the finding of the Court and proceeded with preparations for manual balloting, counting and canvassing. Not only was the failed automation attempt particularly damaging to COMELEC’s reputation, it left open continued opportunity for fraud in the election process. Many opportunities for fraud are found in the manual counting, tallying, and canvassing efforts. The practice of “dagdagbawas,” or “shaving and padding,” is possible because of the vulnerabilities of numbers to human intervention. Although technology is no guarantee that fraud will be eliminated, one of the main reasons for computerizing the election process was to minimize those opportunities for intervention. As noted above, COMELEC failed in this crucial effort to follow simple bidding processes properly. In addition, it also ignored the parameters of what aspects of the process were to be computerized. Rather than purchasing stand-alone machines, as the law mandated, COMELEC invested in networked computers, which were also more vulnerable to manipulation. These failures of judgment, particularly when taken into consideration with the loss of three billion pesos spent on the failed automation effort, further eroded the public’s trust in COMELEC. Voter Registration and Voter Lists The accuracy and readiness of the voters’ list merited serious concern in the run-up to the election. COMELEC launched an effort to “validate” the current voter list, which entailed using 1.2 billion pesos of technology to combine information from the old locally-maintained lists with current voter biodata in an effort to remove multiple registrants, the deceased, or those deactivated20 from the list. But COMELEC was only able to validate about 5.7 million voters before it had to suspend the effort in order to concentrate its limited resources on digitally processing the new information. It was unable to restart the validation process due to a lack of funds, and was then faced with trying to combine the validated and non-validated lists. These complications meant that the voters’ lists, which were legally required to be posted in February, were not made available to the public until about a week before the election, and long after opportunities for redress were gone.

consolidation levels and to prevent these from being imputed again; and 3) Unable to print the statutorily required audit trails of the count/canvass at different levels without any loss of data. Id. 19

Id.

20

By law, voters who have failed to vote in the past two elections are de-activated, or dropped from the list. Voters are supposed to be notified of this status by mail sufficiently in advance of the next election so that they can reregister if they so choose.

COMELEC asserted that the failure to make the voters’ lists public in the mandated time frame did not actually impede anyone from checking on his/her status based on the fact that voters could check and update their registration status at any time,21 but most citizens were not aware that it was possible to do so. NAMFREL (National Citizens’ Movement for Free Elections) and PPCRV (Parish Pastoral Council for Responsible Voting), as well as local inter-agency task forces of government offices, civil society groups, and others, tried to help COMELEC clean the lists, but such efforts were only successful in some areas. To further complicate matters, in the absence of new lists from Manila, many local election officials continued to use the original locally-maintained registries. As a result, it was not clear on which of the three possible lists of names a voter’s name had to appear in order for him/her to be allowed to vote, nor was it clear what decisions COMELEC had made to determine eligibility to vote in the event a voter’s name was not on the most recent lists. Moreover, when the lists were finally released in late April, the number of total voters had increased to 43.5 million, an increase of more than seven million people since the 2001 election.22 This represented an increase far larger than that accounted for by population growth rates. Some areas reported an increase of as much as 22 percent. The number of names on the voters’ lists in some areas, such as Cotabato, reportedly surged in the days before the elections. In addition to the list issues, some voters had been reassigned to vote in different precincts. Although COMELEC must send precinct reassignments to voters through the mail, few voters got such notifications. Others simply waited until the lists were posted, but in some cases, that was not until election-day itself. All of these registration, verification, and notification factors contributed to a lack of confidence that the voters’ lists accurately represented those who were entitled to cast ballots, or would ensure that those entitled would be able to do so. Lack of Training for Election Officials COMELEC’s work is carried out by staff members and Board of Election Inspectors (BEIs). The staff members are civil servants and are generally regarded as competent and dedicated. To some extent, though, they suffer from a lack of standardized training. Many do not have copies of COMELEC’s manual of general instructions and they do not regularly participate in retraining programs to learn about new procedures. NDI encountered significantly different interpretations of rules and procedures from COMELEC staff members, which suggest that such procedures are not uniformly understood. Local COMELEC officers interviewed by NDI uniformly complained of being short-staffed. One officer explained that out of the electoral period, his office could function smoothly with four staff members. During the election period, however, the workload 21

Continuing Registration Act, RA 8189, 1996. This Act provides that: “All registration records/computerized voter list in the possession of the Election officer, the Provincial Election Supervisor, and the Commission in Manila shall, during regular office hours, be open to examination by the public for legitimate inquiries on election related matters, free from any charge or access fee. Id. at sec. 41.

22

Total number of registered voters for the 2004 election as reported by COMELEC was 43,536,028. COMELEC Website, http://www,comelec.gov.ph/stats/2004stats.html . In 2001 the total number of registered voters was approximately 36,000,000 and in 1998 the total number of registered voters was 34,163,465. This is an annualized increase in registered voters of 4.6%. The population growth rate in the Philippines is between 2.2 and 2.3% per annum.

demanded at least four times that, but it was increased by only two staff members. COMELEC also faces difficulties when it transfers local-level officials to different areas only about a week ahead of the election. Some COMELEC officials suggest this is done in order to avoid any partisanship, but there are also serious practical difficulties associated with changing officials at the last moment. BEIs are responsible for overseeing the balloting and tallying. Most are local school teachers who have previously served in this capacity, and it is their involvement that helps increase public confidence. But serving as a BEI is extraordinarily taxing: they must appear the day before the election to collect the necessary materials, most are expected to work for a minimum of 24 straight hours on election day, and some have to endure the harassment of party-watchers or candidates when, out of sheer exhaustion, they make errors in the tallying process. For this, they are paid between one and three thousand pesos (US $20-60). The teachers were among those disappointed by the failed modernization effort, given that it would have made their participation unnecessary. In the 2004 elections, some areas had to recruit almost half of their BEIs from local college graduates or professional groups, as many veteran BEIs found excuses not to serve. Many claimed to be the distant relatives of candidates; in one area, NDI was told that a family of teachers had persuaded a relative to run for local office solely for the purpose of making the teachers ineligible as BEIs. Training for the BEIs in advance of the 2004 elections was much the same as it had been in the past. It focused on the legal and procedural aspects of the election, how to protect the integrity of the process, and how to set up a polling station for maximum efficiency. These trainings tend to be conducted as lectures, rather than interactive exercises, and given the higher percentage of first-time BEIs, the training might not have been especially effective. Moreover, although COMELEC officials said that the BEIs were trained by the middle of April, most were actually only trained in the week prior to the election. COMELEC’s Quick Count COMELEC’s efforts to undertake its own Quick Count became one of the most contentious issues in the pre-election period. Quick Counts are conducted as a means of verifying the integrity of official data by obtaining information from that source at the lowest possible level, then following the count to the national level to ensure that no fraud has taken place in the tallying and canvassing processes. In the past, a Quick Count has been conducted by NAMFREL as an unofficial but necessary check on the integrity of COMELEC’s counting. Observers were understandably surprised to learn that the official election body intended to undertake an unofficial count alongside an official count. COMELEC had planned to send results by VSAT23automated transmission of the municipal results to the national level, skipping the provincial 23

Very Small Aperture Terminal (VSAT) -- a two-way satellite ground station with a dish antenna that is smaller than 3 meters (most VSAT antennas range from 75 cm to 1.2 m). VSAT data rates typically range from narrowband up to 4 Mbit/s. VSATs access satellites in geosynchronous orbit to relay data from small remote earth stations (terminals) to other terminals (in mesh configurations) or master earth station "hubs" (in star configurations).

level and hoping to minimize fraud in the count. Yet questions were almost immediately raised about whether COMELEC, which is entitled only to announce official results for congressional and local races, would share information about the presidential and vice-presidential results. Moreover, it was duplicative of NAMFREL’s work. Serious concerns were raised about the prospect that COMELEC’s Quick Count results would not, as most unofficial counts do not, ultimately agree precisely with the official count. Should those figures turn out differently, were people to believe the official or unofficial COMELEC count? The opposition KNP Party in conjunction with other political parties and NAMFREL took the matter before the Supreme Court in late April, arguing that COMELEC had no mandate to conduct a Quick Count.24 The Supreme Court did not issue its decision barring the Quick Count until less than 48 hours before the polls opened, and observers noted the presence of COMELEC technicians in the far northern and southern reaches of the country setting up transmission systems on May 9. One local candidate wondered why such resources had been spent on this effort rather than on fully cleaning the voters’ lists. The 2007 mid-term elections In the last 2007 mid-term elections, many of the defects in May 2004 elections still prevail. The following is a part of Bantay Eleksyon 2007’s Final Report on the 2007 Elections: In 2007 mid-term elections, an estimated 30 million voters voted, out of the official list of 45.5 million voters, a 66-percent voting percentage. There were many reports of confusion and difficulties in matching voters to their precincts, the presence of numerous ineligible names in the voters list, disenfranchisement of a significant number of voters, and questions on the abnormally high percentage of registered voters compared to the voting population. There were even reports that the national voters list issued by the COMLEC has a high level of inaccuracy. The overseas absentee voting (OAV) showed a very disappointing result, with only 504,122 registered voters out of the possible three million-plus qualified voters. Of this figure, only 65,699 voted—a measly 14% of total OAV registered voters. A major effort is needed to turn this situation around and render credible the whole OAV concept. More than 87,000 candidates contested for the following positions: 12 senators, 220 congressional district representatives, 55 party-list representatives, 81 provincial governors, 118 city mayors, 770 provincial board members, 1,510 municipal mayors, 1,314 city councilors, and 12,092 municipal councilors. The vast majority of these positions have been filled up. The canvassing, for the main part, proceeded and produced proclamations in most places. The election results were accepted by the people in most places, although there were preproclamation and post-proclamation protests by losing candidates in many areas. As expected, there were a lot of problems regarding the technical and procedural conduct. These included printing errors, anomalies in the voter lists, delay in delivery of election documents, 24

Two days before the election, the Supreme Court ordered COMELEC to halt plans for its own Quick Count of the May 10 election results.

loss of (or stolen) election documents, shortage and unilateral transfers of election personnel, including deputies and members of the Board of Inspectors (BEIs) and Board of Canvassers (BOCs), insufficient training of election personnel, and anomalies in handling election documents. However, a worrying aspect of the conduct of the electoral process is the crescendo of allegations of partisanship of COMELEC personnel. These were voiced even before the election period started right up to post-proclamation period. This indicates a very low level of trust and the low credibility of the institution and its personnel not only among the losing parties and candidates but also among the people themselves. The credibility of the results so far in the senatorial contest (with 11 out 12 winners proclaimed) is high and nobody contests the results. However, the contest for the 12th position is proving problematic for the COMELEC, particularly when it chose to canvass the controversial Maguindanao Certificate of Canvass (COC). This particular COC has been rejected by all election monitor for having suspicious provenance and the many questions on the conduct of elections in the province. The same uncertainty attends the party-list election, with no party-list organization being declared winner (as of this writing). The announced COMELEC decision to use the Supreme Court-decided “Panganiban formula”25 in ascertaining the party-list seats each winning party-list group is entitled is also facing opposition from some of them. Bantay-Eleksyon 2007 recorded 295 incidents of various irregularities in the electoral process and violations of electoral laws in the areas it monitored. Of these, 119 are election law violations, 74 are cases of electoral fraud, 64 are cases of election personnel inefficiency, 43 are cases of electoral violence, 34 are cases of intimidation, 18 are cases of harassment, and 7 are cases of violation of non-election laws. As a sample, these figures support the projection of much higher incidents of irregularities and violations of election laws. The figures are generally uniform throughout the country, pointing to the deficiencies of the electoral system itself, including the administration of election. The manual system of election that was implemented in the 2007 elections has failed to stem the tide of electoral fraud and other irregularities. The COMELEC has a big contributing responsibility in its laid-back attitude to prosecution of offenders. The credibility of the entire electoral process is thus compromised.

25

The Panganiban formula is named after retired Chief Justice Artemio Panganiban who came up with it when he was then an Associate Justice of the Supreme Court. Under the formula, a group that gets at least 2 percent of party-list votes win one seat but only the top vote-getter among party-list groups gets the maximum three seats in the House of Representatives. The additional numbers of seats are computed by dividing each group's total votes by the number of votes received by the "first party," or the top vote-getter in the party-list race. The quotient is then multiplied by the additional numbers of seats gained by the "first party" beyond the 2 percent minimum. Previously, party-list seats were allocated under the "2-4-6" formula. Then, a group that gets 2 percent of party-list votes wins one seat; a group with 4 percent, two seats; and a group with 6 percent or more, the maximum three seats.

Election Administration The COMELEC, in so far as it undertook the preparations for and supervision of actual electoral processes, did its job adequately. Unfortunately, this is overshadowed by its failings in terms of transparency, implementation of election laws, independence and non-partisanship, and efficiency. Its various immediate attempts at institutional reforms so far have not produced any significant improvement. This basically guarantees that its problem of credibility will not be solved nor alleviated by its conduct in these elections. From the start of the 2007 election period, the COMELEC labored under a very low level of public trust. The last published survey of the 2006 SWS Enterprises Survey conducted from February-April 2006, indicated that the COMELEC suffers a -59% net sincerity rating in fighting corruption. Its refusal to conduct an investigation into the Garcillano affair has also led to many calls for the resignation of COMELEC commissioners, and questions on its fitness to administer elections. To its credit, the COMELEC initiated some reform measures in connection with the 2007 elections, including a code of conduct for its personnel, training seminars, and modules for guidance of the voters and the Board of Inspectors. To a certain extent, it also opened its doors to the public with new websites and accreditation of various monitors and media people. In relation to its work, the whole organization worked successfully to prepare for and conduct the elections as scheduled in the vast majority of areas nationwide. The overseas absentee voting registration and voting were conducted without a hitch. However, there are areas where the COMELEC failed miserably. The most visible of these is in the areas of enforcement of election laws. Across the archipelago, candidates and their campaign people brazenly posted their campaign materials wherever they see fit, often before blind eyes of local COMELEC officials. Whatever grandstanding of COMELEC officials regarding the common poster areas, it is a fact that no one has ever been prosecuted, much less convicted, on this particular violation. The use of media was also supposed to be regulated. Minutes allowed for television and radio had been limited by the Fair Elections Act. COMELEC reinterpreted this law in the 2007 elections as on a per region basis, effectively expanding the allowed time. Although this is a more restrictive policy than the one in the 2004 election which was on a per station basis, still it permitted senatorial candidates to splurge on TV ads, endangering the violation of another law on restrictions on campaign spending. The latter also earned the dubious distinction of another unenforced law by the COMELEC. The COMELEC defended its inaction on election law enforcement even as it recognized its authority to act motu propio on cases of violations. Its spokespersons reason that they require complainants even in motu propio cases. This laid-back attitude basically points to a lack of political will on the part of the COMELEC and contributes in a decisive manner to the proliferation of electoral fraud, electoral violence and other electoral anomalies that degrade the

free and fair character of the Philippine electoral process and Philippine democracy itself. Yet, it is a fact that, in the 2007 elections, many cases of protests over electoral fraud involve COMELEC officials and personnel. This also contributes in a big way to the minimal credibility of the institution in many areas. This also points to the possible partisanship of COMELEC personnel in the actual conduct of the elections, including canvassing. A case in point is the proliferation of “honest mistakes” in the various election documents when questions were raised on their correlation with election documents from precincts and municipal or city canvass. In many cases, it was only the vigilance of the citizenry that prevented electoral fraud. The COMELEC unfortunately did not perform this function in the main and in fact became a target for watchdogs itself.

IV.

The call for electoral reforms

We have to acknowledge the fact that he whole political system in the Philippines needs to be reformed. We have to eradicate graft and corruptions, dominance of political dynasties, patronage or clientilist politics, personality politics, turncoatism, and all the evils of what we call traditional politics or “trapo”, if we want real democracy to be realized by the Filipino people. Reforming political system or political reform as a whole is a heavy task and will take a long period of time to be fully accomplished.26 But within this heavy task, we can accomplish an urgent task which is electoral reform, and electoral reform is a part, a very important part, of political reform. As a matter of fact, electoral reform can serve as an opening door or a catalyst for political reform as a whole. In our call for electoral reform, we have to be specific and exact in our target. We have to pinpoint objectives that are achievable at least up to the next coming elections (2010) and, for the meantime set aside those objectives that can be accomplished only for the long term. Aside from the government, there are many organizations and institutions that are calling for electoral reforms. Each of them has a list of recommendations of what are to be reform in our electoral system. The following came from the lists we gathered: 1. The COMELEC needs to be revamped from top to bottom as the vital first step in bringing back the credibility of the institution and reform the electoral system. Among the first steps here is the weeding out of political appointees who do not have the necessary impartiality or skill competency for the work of the COMELEC and the appointment of new competent commissioners with reputation for integrity, have management skills, and capability for undertaking reforms. The appointments from the President and requiring approval from the Commission on Appointments would need “the collective responsibility of the people, especially the civil 26

As a matter of fact, radical activists believed that political reform in the Philippines is impossible without the fundamental change of society as a whole.

society, to monitor the process of selection, appointment and confirmation” for “serious efforts to de-politicize and professionalize the bureaucracy.” It is also crucial to delimit the powers of the Presidency, which have proven capable of abusing electoral institutions, rules and processes for partisan interests. 2. Election modernization should be implemented. This means the implementation of an automated election system in time for the 2010 elections, modernization of Comelec infrastructure, and training of Comelec personnel and public education on the modernized system. There should be broad-based and transparent discussions on what type of poll automation is appropriate and how it is to be piloted and implemented. At the same time, a trouble-free, fully transparent and acceptable bidding process must be in place. By automating the country's electoral system, we hope that the usual problems that come with elections such as the difficulty in finding one's precinct, stressed out teachers, electoral fraud and "a predictable aftermath of a slow count" can be solved, once and for all. 3. Cleansing and publication of the voters’ list long before the day of election. 4. The dirty conduct of elections, as (vote) buying, padding and selling, as well as election violence have embarrassingly become systematic and threaten to become a cultural element of our elections. The COMELEC should be given the necessary capability to enforce election laws and prosecute election violators. If possible, the government should hold those responsible for anomalies in past elections and the recently concluded ones accountable to the people. Good career people in the COMELEC can be the catalyst for the renewal of the institution. 5. The government should immediately confront the problems of anomalous election practices in ARMM and elsewhere, the problem of warlordism and the phenomenon of massive and organized cheating, because it is of the scale that can affect the national elections. 5. A review of laws affecting the electoral system. The party-list law should be amended in the light of lessons learned not only in the 2007 elections but in earlier elections. The political party reform bill should be passed by congress immediately so as to strengthen the political party system. The overseas absentee voting law needs to be revisited to ensure its full implementation in the next elections. Measures to educate overseas Filipinos should also be devised and carried out. Other laws that need urgent attention are laws on political dynasties, the “legal” entry of nuisance candidates, and the formulation of an agenda for institutional reform. The Omnibus Election code should be amended to reflect the requirements of election modernization as well as to address the weaknesses and loopholes of the present electoral laws.

6. The development of mechanisms for deepening the political education of voters (e.g. Pinoy Voter’s Academy and Gabay Halalan), fostering public accountability of politicians to the electorate (e.g. Bantay Pangako) and sustaining coordinated political engagement especially among the youth, the citizens’ groups, and Church-based organizations (e.g. VforCE). 8. Citizen participation in the electoral process should be heightened and made on a continuing basis in order to make effective Philippine democracy.

VI.

The Reform Movement

The COMELEC, as the constitutional body tasked with administering elections is expected to put electoral reforms on the agenda (besides Congress) as one of its institutional functions. But COMELEC has no credibility as an initiator of reforms because its own officials have been implicated in several failures and anomalies. As pointed above, the COMELEC needs first to be revamp. In the first place, COMELEC has to answer many questions like, for example, why the factfinding investigation of the Hello Garci scandal was not pursued by the Commission and why a new Commissioner (Sarmiento) had to take it upon himself to ask the Commission to carry on with its own self-assigned investigative task? Is the inefficiency of the COMELEC in the recent election – the usual consequence of an institutional flaw or was this all feigned and planned? Were the anomalies in the printing of election materials a result of inefficiency or of a plan -- this appears to have been a prerequisite to the selling of ballots and election returns on the day of elections and during the canvassing of votes. Were the delays in the public release of the Computerized Voters' List that resulted in the massive sale of CVLs without COMELEC receipts a result of institutional inefficiency or of a plan; and what of the numerous double-entries of registered voters in the project of precincts, etcetera. The power to appoint the Chairman and members of the Commission rests on the President with concurrence from the Congressional Committee on Appointments. After the Garci scandal this presidential power should at best be seen as an anachronism. Expect that issues against the mechanism and process of appointment will add fuel to the discourse for electoral reform. It is critical to pose two questions: can electoral reformers intervene in making the mechanism and process of appointment transparent, consultative and criteria-based, in the immediate term? How far can substantial electoral reforms be pushed in the long term? Without the necessary pressure from the civil society, chances are nil that Congress, Malacañang and Comelec can seriously initiate and push the realization of substantial electoral reforms. These institutions may finally come out and implement a computerized voting and counting system in 2010 but fundamental problems in election rules, conduct and supervision remain. The disposition and capacities of political parties; popular political formations; the academe, media, business, church and organized reform groups are decisive in the aggressive push for electoral reforms. It seems that the impetus will come from nowhere else. There is an urgent and

important need for electoral reforms but the reform base and constituency appear to be very thin. We have seen how electoral reform movements become prominent during elections. Most of these, however, demobilize after that. There is a need for various electoral reform movements to weave the threads of their different initiatives into a coherent movement; come out with comprehensive and concrete reform proposals and shape various forms of campaigns and lobbies until reforms are realized. Congress stays as the bailiwick of anti-reformers but there is that potential working with “electoral reform blocs” among legislators – whether of the opposition or not. It is important and it might be possible, that local politicians with hard-earned wisdom concerning our problematic electoral rules can be drawn into the electoral reform movement. The likes of Governor Grace Padaca, Governor Ed Panlilio, Mayor Jesse Rebredo, among others can contribute to invigorating the advocacy for reform. As early as April 2002, in fact, a summit of electoral-reform stakeholders had been convened jointly by the Comelec; the Senate Committee on Constitutional Amendments, Revision of Codes and Laws, and Electoral Reforms; the House Committee on Suffrage and Electoral Reforms; and the Consortium on Electoral Reforms, a civil-society coalition of 42 national organizations. The summit produced a legislative and action agenda of electoral reforms. Among these was the passage of bills on political-party reform and campaign financing, overseas absentee voting, local sectoral representation, amendments to the party-list law, and a ban on "turncoatism." The summit participants also agreed on structural reforms of the Comelec, citizen-voter education, constitutional reforms through a constitutional convention, and strengthening of the electoralreform network of civil society. A month later, the first national conference of Philippine political parties adopted the summit's resolutions in its own declaration. This positive response by the major political parties led to the rapid processing of electoral-reform bills through both houses of the 12th Congress. By 2003, there was already an overseas absentee voting law, while other pieces of legislation aimed at similar reforms were in plenary deliberations or had gone through committee deliberations. Since Philippine elections were re-introduced in 1987, aspiration for genuine and substantial electoral democracy has always been a fool's hope. The policy environment for electoral reform remains dim and complicated but there is no other recourse but to steadfastly hope and push. -o0o-

_______________________________ References: 1. Electoral Politics in the Philippines; by Julio Teehankee 2. Electoral Systems and Processes; United Nations Development Programme (UNDP); January 2004 3. Report on the 2004 Philippine Elections; by National Democratic Institute for International Affairs; August 2004 4. CEPPS Philippines Election Observation Program Strengthening the Electoral Process; IFES Final Report; August 2004; Authors: Peter Erben, Beverly Hagerdon, Thakur, Craig Jenness, Ian Smith 5. Final Report on the 2007 Elections; by Bantay Eleksyon 2007; July 3, 2007 6. After the Elections, Before Electoral Reforms; by Patrick Patiño; Institute for Popular Democracy; 25 June 2007 7. CBCP Calls for Electoral Reforms and Revamp; Melo Acuña; CBCP News Online; July 9, 2007 8. Philippines Presses For Automated Elections In 2010; by Komfie Manalo - AHN Correspondent; AHN Media Corp; May 20, 2007 9. CBCP Pastoral Statement on the 2007 National Elections; ANGEL N. LAGDAMEO, D.D.; Archbishop of Jaro; CBCP President; CBCP Documents; July 8, 2007 10. Restarting the Political and Electoral Reforms Train; by RAMON CASIPLE; i Report; Philippine Center for Investigative Journalism; 2010 political predictions 11. Wikipedia, the free encyclopedia