A Roadmap for Updating Philippine Election Laws An Overview

Luie Tito F. Guia

Objective of the Roadmap The recent August 11, 2008 election in the Autonomous Region in Muslim Mindanao (ARMM) marked the beginning of an era in Philippine elections. Although it was not the first time that the country adopted and used modern voting technology,1 the ARMM election definitely signaled a new age in Philippine election history. The Commission on Elections (COMELEC), as well as the staunch advocates of computerized elections, regarded the use of automated election system in the ARMM as a resounding success. They were impressed with the performance of the Direct Recording Electronic (DRE) voting system and the Optical Mark Reader (OMR) in the ARMM election and this led to a stronger clamor to automate the crucial upcoming 2010 National Elections nationwide. There are those however, who would rather take an attitude of cautious optimism in the future of automated elections in the Philippines. Many questions were raised about the readiness of the country to adopt and use automated elections. There are concerns that automated elections would instead make cheating more efficient and harder to detect, given the current Philippine context. There are also others who are saying that the country will not be able to afford the cost of automated elections, especially with the current global financial crisis. While these concerns are legitimate, the trend towards modernizing Philippine elections can no longer be halted. One way or another, modern technology will find its way into Philippine electoral processes. Thus, it is important to adopt a policy environment that would allow election managers enough flexibility to choose the most appropriate election system, taking into consideration the present context that the country is in. It is in this regard that a serious review of the existing legal framework which will guide the conduct of elections has become necessary. Towards this end, the following questions are important: Do present election laws provide a legal framework that is in synch with the present socio-political and economic realities of the country? Do present election laws offer sound policy standards that are clear enough to guide COMELEC in choosing the most suitable and appropriate election system and technology for future Philippine elections? Do present election laws offer adequate flexibility to COMELEC to allow it to have a reasonable range of options in how to conduct future Philippine elections in a manner that would achieve the objective of making it free, fair, orderly, honest, and credible? 1

Do present election laws foster credible elections by providing a transparent election process and an accountable and responsive election management body? If the answers to these questions are in the negative, what amendments can be made to update the legal framework? The objective of the roadmap is to provide policy makers, election managers, and electoral reformers from civil society a kind of roadmap to guide them in examining existing election laws, in determining areas in the laws for possible reform and in providing a takeoff point for proposing amendments and modifications to the existing legal framework. It should be clear that this work is not a policy paper. Neither is it an endorsement of a fully automated elections system. Rather, it is a tool or a workbook for those who would initiate and formulate reform proposals for an updated legal framework with the end of achieving free, fair, orderly, honest, and credible elections. The substance of the reform proposals will come from those who would find the need to use this road map. This would include policy makers, election managers, and electoral reform workers. The roadmap is presented in the form of eleven tables, each of which has four columns. Since the basic election statute is still the Omnibus Election Code (OEC or the Code, for brevity), which became law in December 1985, 2 the specific elections laws or provision of laws are presented or arranged in the roadmap following the sequence of the laws as they appear in the Code. Each of the eleven tables covers a particular subject matter, namely: Table 1 - Preliminary Election Laws (Sections 1 to 51 of the Code) Table 2 - Laws on COMELEC Powers and Structure (Sections 52 to 59) Table 3 - Laws on Political Parties and Candidate (Sections 60 to 78) Table 4 - Laws on Campaigning and Campaign Finance (Sections 79 to 112) Table 5 - Laws on Voter Registration and Election Precincts (Sections 113 to 151) Table 6 - Laws relative to Polling Places, Board of Election Inspectors, Watchers, etc. (Sections 152 to 180) Table 7 - Laws on the Conduct of Voting (Sections 181 to 205) Table 8 - Laws on Counting of Votes (Sections 206 to 220) Table 9 - Laws on Canvassing of Election Results (Section 221 to 240) Table 10 - Laws on Election Adjudication (Sections 241 to 260) Table 11 - Laws on Election Offenses (Sections 261 to 269)

As stated, each table has four columns. The first column contains the specific provisions of law as they appear in the Code. The portions that are italicized and bracketed are outdated and may be removed or reworded. The second column contains the subsequent laws modifying, substituting, or updating the laws in the first column. If there are no entries in the second column, it means that the laws in the first column are still in effect. An empty first column but with an entry in the second column implies that the laws in the second column have no counter-part in the Code, or are newly-introduced. The third column contains the substance of pending bills in both houses of Congress (SB for Senate Bill, HB for House Bill) related to the specific provision of laws in the first or second column. The fourth column contains the observations and remarks of the writer (his own, from his research, and from his interview of experts) as regards possible reform legislations.

Looking at all the eleven tables covering the whole breadth of election laws would readily project the enormity of the task of proposing reforms. Thus, those who would be interested in just a particular area or areas of election law can instead use the appropriate Table covering his area of interest and work on it separately. As said, the fourth column contains the observations and remarks of the writer, but the user of the guide can write his own observations or comments thereon as that is what this roadmap project is all about a tool for election stakeholders to guide them in identifying areas of the law the needs updating. Admittedly, the tables viewed together can be quite overwhelming and may require a concise introduction of the work. It would be good to present a brief background of the development of the legal framework beginning with the Omnibus Election Code. The Omnibus Election Code As stated earlier, the basic election statute in the Philippines is still the 1985 vintage Omnibus Election Code (OEC). Although it has already undergone several amendments, the majority of its provisions are still in effect and therefore still reflect the present state of the law on elections in the country. The Code was passed in December of 1985 amidst a critical period in recent Philippine political history. It was the time that the faith and trust of the Filipino people in elections and other democratic processes was at its lowest level. The dictatorial rule of Ferdinand E. Marcos virtually destroyed the countrys gains in a democracy earlier recognized as a model in Asia.3 However, in late 1985, due to pressure brought about by the almost daily street protests calling for him to step down, Marcos was forced to call for snap presidential elections in February of 1986. Faced with only two choices, a peaceful and democratic transition or a bloody revolt, the people opted to give elections another chance. But this assumed and required rules that would ensure the fairness and credibility of the electoral exercise. The highly fraudulent nature of the series of elections in the past and the general lack of trust in the COMELECs capacity to run free and fair elections under the Marcos administration thus produced an Omnibus Election Code that provides very detailed procedures on how elections should be conducted.4 While the Code at that time served a purpose, the same has become outdated as developments unfolded. A new Constitution was adopted in 1987. The pre-1973 presidential form of government, with a bicameral legislature, was re-introduced, and 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 mandates 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 mandates Congress to adopt a system of absentee voting for overseas Filipinos and an anti-political dynasty law. A multiparty system was encouraged, and voting has become optional.5 Political Party representation in the Board of Election Inspectors and in the Boards of Canvassers was prohibited.6 There arose a need to modify the Code. Other election laws.

Several amendatory laws were enacted subsequent to the adoption of the 1987 Constitution7 precisely to update the Code with the developments introduced. Recent advances in technology also demanded that modern methods of managing and conducting elections have to be considered. However, the Code does not provide an adequate legal framework that would allow the use and employment of modern voting concepts and technology by the election managers. The detailed procedures and specification in the Code prevents COMELEC from being flexible enough to adjust.8 A modernized election using computerized voters list and an automated voting and counting process was therefore seen as a solution. However, the statutory regime prevailing at that time provided no sufficient authority for the COMELEC to implement an automated election system. All it had was Section 52 (i) of the Omnibus Election Code, stating that COMELEC may prescribe the use or adoption of the latest technological and electronic devices, taking into account the situation prevailing in the area and the funds available for the purpose.9 Thus, for COMELEC to pursue its plan for a modernized election, a new legal framework has to be in place. The major amendatory laws that amended the Code are as follows:
RA 6646 Electoral Reforms Law of 1987, January 5, 1988 o Limited campaign propaganda to common poster areas and to Comelec space and time o Redefined the composition of the Board of Election Inspectors and Canvassers o Strengthened penal provisions on vote-buying and vote-selling as well as campaign violations RA 7166 Synchronized Election Law, November 26, 1991 o Enabling law for the first synchronized elections in 1992 o Amended procedures for canvass and pre-proclamation controversies o Gun Ban o Decriminalized the failure to file statement of expenditures and contributions of candidates RA 7941 Party-List Election Law RA 8045 and 8173 - Citizens arms right to obtain copies of the election returns. RA 8189 "The Voter's Registration Act of 1996." o Changed the system of registration from a fixed day registration to a system of continuing registration and mandated the computerization of the voters list. RA 8436 - An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National and Local Electoral Exercises, Providing Funds therefor and for other purposes. RA 9006 - The Fair Election Act o Liberalized campaign rules RA 9189 - "The Overseas Absentee Voting Act of 2003." RA 9369 - An Act Amending Republic Act No. 8436 o AES law o DRE system was introduced. o Electronic transmission of results o Election offense: electoral sabotage life imprisonment

Concurrent power with other prosecuting arms of government to do preliminary investigation on election offenses

The Necessity of a New Election Code Despite these 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. With the introduction of the new laws and with the new realities in the present political context, a new election code would be necessary. There are provisions in the 1985 Code that are no longer practical and suited to the current environment. A new code that would bring together the disjointed election laws and would hopefully update the entire legal framework governing elections to allow the country to jump to the modern times would be 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 that would constitute what it calls its Flexible Legal Framework towards achieving a modernized election.10 The proposals were contained in what was then called the proposed 1993 Election Code.11 The Philippine Congress however did not see the wisdom of passing of an entirely new election code in a single piece of legislation. Nevertheless, some of the items contained in the proposed Code became law anyway, but on a piecemeal basis. Among these 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 2003.12 The only reform item that is mandated by the Constitution but has yet to be legislated by Congress is an anti-dynasty law. Nevertheless, even if it would be virtually impossible to have a new election code passed in time for the national elections in May 2010, there is still a chance that some of the more problematic provisions of existing laws can be introduced in Congress by then. Needless to emphasize, the 2010 election is very critical to the country. The need to introduce crucial reforms in our election laws is as imperative now as it was before, and as it will be after the 2010 elections. Even the present COMELEC finds urgency in updating these election laws. The COMELEC, in its strategic plan dubbed Operation MERIT (Modernization with Integrity and Transparency),13 cited three strategies: Strengthening COMELEC as a Constitutional Institution, Rationalization and the Codification of Election laws and Modernization of the Electoral Process, which require the drafting and passage of important election reform legislation. Presently, there are a handful of important bills related to election pending before the Fourteenth Congress. These include those that propose to the reform political party system, the party list system of representation, and the overseas absentee voting system. Other bills proposes anti-political dynasties, anti- turncoatism, voting for detainees and sectors with special needs and increased penalties for electoral fraud offenders, among others. This roadmap is a modest contribution to the advocacy for electoral reforms. It hopes to be of assistance to the efforts of the COMELEC, policymakers, and electoral reform workers among civil society to propose and come up with the much needed reform legislations.

The 1996 ARMM election saw the pilot testing of computerized elections pursuant to Republic Act No. (RA) 8046. The OMR technology was used. The 1998 national elections also saw the use of the OMR technology in the ARMM region, and this was by virtue of RA 8436. 2 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. 3 President Ferdinand E. Marcos had been the Philippine president since 1965. After he served out his first fouryear term, he ran for reelection and won in 1969 in an election that was said to be one of the most fraudulent in Philippine history. His second four-year term was supposed to end in 1973, but after he declared Martial Law in September of 1972, he became a dictator. In 1973, a new Constitution mandating principally a parliamentary form of government took effect, replacing the previous 1935 Constitution. Subsequent amendments to the 1973 Constitution, through a series of plebiscites a few years later, enabled Marcos to legitimize his stay in office as Presidency and his continued exercise of his law making powers. To further give a semblance of democracy in his rule, Marcos called for parliamentary election in 1978, local government election in 1980, and a presidential election in 1981. However, these elections were general considered to have been scripted solely for justifying Marcos continued stay in power. There were pockets of resistance among the above ground opposition forces against the Marcos dictatorship, but Marcoss power was then still too strong. Then came the assassination of opposition leader Benigno Ninoy S. Aquino in August of 1983. The gruesome murder at the airport tarmac of the Manila International Airport finally awakened the long docile middle class. The clamor for putting an end to the Marcos authoritarian rule gained momentum. The Batasang Pambansa elected in 1984 included more opposition personalities than did the rubber stamp 1978 Interim Batasang Pambansa. It was basically in this context that the Omnibus Election Code came about.
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Most of the provisions of the Code however were adopted from previous election laws. The manual procedures in the conduct of elections were provided in their minutest detail in every election code that the country had in the past. The 1937 Election Code (Commonwealth Act No. [CA] 357) prescribed practically the same procedure. The same is true as regards the Revised Election Code of 1947 (RA 180), which replaced CA 357. The Election Code of 1971 (RA 6388) and the 1978 Election Code (Presidential Decree [PD] No. 1296) also provided a detailed manual process of voting, counting and canvassing of votes. The Omnibus Election Code of 1985 (Batas Pambansa [BP] Bilang 881) carried on the long tradition of a manual election process.
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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. 6 Section 6 Article IX-C of the Constitution. 7 Among the initial amendatory laws are: Executive Order Nos. (EO) 134 and 144, which were the enabling laws for the conduct of the first Congressional elections under the 1987 Constitution in 1987; EO 162, which legislated the constitutional mandate that political parties should no longer be represented in the Board of Election Inspectors BEI (the Code provides that two members of the BEI should be from the majority and opposition party, respectively); EO 292, the Administrative Code of 1987, a portion of which partly updated the laws governing the COMELEC structure; Republic Act No. (RA) 6636, which is the enabling law for the first local government elections under the 1987 Constitution in 1988; RA No. 6646, the Electoral Reforms Law of 1987, which was first made applicable in the 1988 local elections; and RA 7166, the enabling law of the first synchronized elections in 1992 under the 1987 Constitution. It must be noted that the Executive Orders issued by then President Corazon C. Aquino before the bicameral Congress was constituted had the force of law by virtue of the Freedom Constitution of 1986, the transition Constitution between the 1973 Charter and the 1987 Basic Law. 8 Former COMELEC Commissioner and election law expert Regalado E. Maambong opined that the highly detailed provisions of the Code were simply because of what he termed as a culture of mistrust that pervaded among election stakeholders. The politicians do not trust each. The people do not trust the politicians. The politicians do not trust the voters. It was hard to trust COMELEC. To illustrate his point further, he added that the design of the ballot box specified in the law made the box look like a war tank the intention being to make sure that the ballots put inside would not be tampered with or replaced with fake ones. However, these precautions did not prevent fraud from taking place. In fact, fraud committed by tampering of election returns and certificates of canvass, produced more serious repercussions. 9 The 1978 Election Code also contained as similar provision in its Section 185 (j). 10 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:
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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 o 1) Coercion of election officials and employees

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o 2) Computer fraud Senate Bill No. 1427 and House Bill No. 10911 in the 9th Congress. Please see previous notes on this matter. Operation MERIT was a product of COMELECs strategic planning workshop conducted in 2006.