Philippine Report: Election

The Philippine Commission on Elections (COMELEC) is a constitutional body with broad powers designed to make it independent from other government bodies. Statutorily, COMELEC could be one of the most powerful electoral management bodies in the world. COMELEC suffers from a number of serious institutional deficiencies that limit its capacity to administer quality elections. It has limited professional and technical capacity; a weak and poorly resourced field structure; organizational problems including a commissioner-in-charge management approach; and an absence of standard operating procedures required to administer such a large organization.

Because of its numerous shortcomings, COMELEC has relied extensively on support of other government bodies and civil society to administer elections. The 2004 election cycle was particularly flawed. COMELEC’s plans and programs for the May 10 elections were disrupted by the late release of funds by Congress and the Supreme Court’s decisions to stop the automation of polling, counting, and transmission of results from taking place. Given the problems mentioned above, however, it is uncertain that COMELEC would have had the capacity to successfully implement these programs.

Transition to a computerized central voter registry was similarly abandoned only days before the election and election officers reverted to using manual voters’ lists and voter records. Voter education efforts were uncoordinated and poorly implemented. Often, voters were not informed of new precinct information instructing them where to vote. The training of polling officials was done through parallel training programs developed by the Department of Education, COMELEC, and civil society.

Ironically, COMELEC’s training was the least effective of the three and the most poorly organized, relying on broadcast lectures to groups of up to 500 and the distribution of a General Instructions document on polling in lieu of a proper training curriculum. Election Day was marred by numerous logistical, procedural, and organizational problems. Many voters did not know where to vote, precincts and polling stations were poorly organized, and voters’ lists were inaccurate. A poorly designed ballot and crowded polling locations in urban areas made voting difficult and did not protect the secrecy of the vote.

Numerous procedures were not understood or were ignored due to poor training and weak supervision. The counting process was painfully slow due to complicated ballots and unnecessary procedures. Still, voter turnout was respectable at approximately 74%, based on valid votes cast. Boards of Election Inspectors (BEI) did their best to find creative solutions to problems. The tabulation process, known as canvassing, is complex. Despite numerous safeguards, it suffers from the perception of fraud. Congress tabulates presidential and vice-presidential votes.

This leaves excessive room for delay and politicization, as was vividly demonstrated in this election. The complaints and adjudication process contains substantial due process safeguards. However, it is complex, extremely slow, and plagued by frivolous complaints. While Election Day was considered to be relatively peaceful, election-related violence and intimidation still have a negative impact on the overall quality of the electoral process, in particular during the campaign period and especially in relation to local level races. Alleged cheating and fraud is a common feature of Philippine elections.

Some of these allegations are misperceptions of a distrustful public or face saving by losing candidates. At the same time, there is little doubt that some fraud, particularly vote buying and selling, was committed in the 2004 elections and may have influenced some lower level races. To guard against this in the future, electoral reform should be high on the political agenda of the newly elected president and Congress. Key Recommendations What appears below is an overview of the 100+ recommendations that appear in this report. It is intended to acquaint readers with the focus and substance of those key recommendations.

IFES would advise stakeholders interested in electoral reform in the Philippines to thoroughly review the detailed IFES Report: 2004 Philippines National Election 1 findings, conclusions, and recommendations presented in this report to ensure accurate and complete comprehension. It is hoped that these recommendations will contribute to the dialogue among Philippine stakeholders and to the hard and detailed work of reaching consensus on necessary legal, administrative, and institutional reforms prior to the next national election in 2007. 1.

Pass draft laws to strengthen political parties, amend the Party List Law, implement sectoral representation at local levels, and ban “permits to campaign” as soon as possible. 2. Consolidate all relevant electoral laws, other than constitutional provisions, in a new Omnibus Election Code. 3. Open the system of presidential appointment of election commissioners to allow for a nomination system and input from other stakeholders. 4. Conduct an independent review of the structure and professional capacity of COMELEC in order to develop a professionalization program and standard operating procedures.

5. Proceed with implementation of the three-phase modernization program, including voter registration, automation of the count, and canvass and electronic transmission of results. A comprehensive review of the modernization plan would be advisable before moving forward1. 6. Empower COMELEC to remove names from the voter registry provided that voters are duly notified and given the option to appeal. 7. Strengthen rule of law, by holding political parties responsible for acts of violence directed at rival parties and prosecuting all election-related crime through a speedier adjudication process.

8. Revise polling procedures to ensure the secrecy of the vote, thereby minimizing the effectiveness of vote buying and intimidation of voters. 9. Develop a clear official voter education program and leverage resources by forming strategic partnerships between COMELEC and other state entities (Department of Education, Philippine National Police), civil society organizations (NAMFREL and PPCRV), and local government (Barangay captains). 10.

Modernize the COMELEC training program for BEIs and Boards of Canvassers (BOC) by applying adult education techniques, developing training manuals and materials, and planning an effective cascade-training program. 11. Ensure transparency of the election results by publicly posting a copy of the precinct election return outside of the precinct door and on the Internet. 12. If Congress is to continue to canvass presidential results, create a standing set of rules for its canvassing responsibilities. The rules should reflect the ministerial and non-partisan nature of the canvass.

13. In the event of a review of the current Constitution, consider terminating the practice of canvassing by Congress. The count and tabulation process should be the sole responsibility of the election administration and should eventually be fully automated. 14. Support parallel vote tabulation by a third party, regardless of whether or not automation is introduced, as it is essential for electoral credibility in the Philippines. 15. Streamline and consolidate the jurisdiction for dispute resolution. At minimum, COMELEC should be relieved of initial (trial) jurisdiction.

Local or regional courts could take on a greater share of electoral cases. The idea of a specific “electoral court” could be considered. IFES Report: 2004 Philippines National Election 2 16. Introduce measures to penalize or discourage frivolous complainants, including placing on the claimant the burden of demonstrating that there is some cogent evidence to support the claim and that proof of his/her case will materially effect the outcome. 17. Develop a greater range of sanctions to ensure tribunals apply penalties that are proportional to the offence.

This could include fines, loss of media access, campaign restrictions, and public apologies. 2. Introduction Project History In response to an invitation issued by the president of the Republic of the Philippines, IFES and its CEPPS partners deployed a team of representatives in early March to the Philippines to assess the political situation leading up to the May 10 presidential and legislative elections. Funded by the United States Agency for International Development (USAID), the assessment aimed to determine how the respective organizations could contribute to the 10 May elections.

Subsequently, IFES agreed to participate in another joint CEPPS mission to implement the assessment’s short-term recommendations and a program description was submitted. The goals of the project were: • • • • To observe the pre-election, election, and post-election periods and provide technical suggestions to COMELEC and other key players. To host or participate in a post-election roundtable and briefings with CEPPS partners to evaluate the elections and make recommendations for longer-term election strengthening. To support the U. S. Embassy and its observation training event.

To provide support to CEPPS partners’ regarding media monitoring work. Methodology An experienced team of experts gathered the information for this report over a period of three months encompassing the pre-election, polling and counting, canvassing, and post-proclamation periods. Team members conducted well over one hundred interviews with COMELEC officials, civil society organizations, the Department of Education, media representatives, local election experts, security officials, and senior politicians. While much of the work was done in Manila, many interviews and field visits were also conducted in a number of regions.

A list of contacts is annexed. (See attached Annex III: IFES Contact List) Facilitating the working groups and the roundtable event brought together all stakeholders for an informed and constructive discussion of the key changes needed in the Philippine electoral system. It is hoped the production and distribution of this final report, which presents the findings, analysis, conclusions, and recommendations of the program, will further the electoral reform agenda. Content and Target Audience This report is not a description of the May 10, 2004 elections. Rather, it is a thematic analysis of selected aspects of the Philippine electoral process.

It does not attempt to deal with the many complexities in their entirety, but instead focuses on those areas where problems, real or perceived, are most prevalent. IFES Report: 2004 Philippines National Election 3 Sections on political parties, civil society, and the media have not been included in this document, as it is expected these topics will be examined at length in the reports of the other CEPPS partners. The target audience is any stakeholder who has an interest in electoral reform in the Philippines. The reader is assumed therefore to have a basic knowledge of the Philippines and its political and electoral systems.

The report deals with the existing electoral system. The final section of the report includes suggestions for electoral reform under a scenario where constitutional change becomes a reality. The report’s conclusions and recommendations are not intended to be exhaustive, or definitive, but are intended to contribute to the ongoing debate on electoral reform in the Philippines. 3. Legal Framework The legal framework for elections exists largely (in descending order of authority) in the Constitution, the Omnibus Election Code and subsequent laws, resolutions and rules of procedure of COMELEC.

Constitution The Constitution was passed in 1987, after the fall of the Marcos regime. It sets forth the electoral framework and enshrines basic principles of freedom of expression, association, suffrage, and secrecy and sanctity of the ballot. It defines structures of government, terms of office, and sets election dates2. The Constitution mandates a strong Commission on Elections (COMELEC), which is independent from other branches of government. COMELEC is composed of seven members, appointed by the president, with the consent of the Congressional Commission on Appointments.

Commissioners sit for a term of seven years without possibility of reappointment, and can be removed only through impeachment. COMELEC’s mandate is to administer all elections, plebiscites, and referendums, and to inquire into and resolve electoral disputes or controversies. It has very broad executive and judicial authority. Among other things, it can deputize law enforcement agencies and other arms of the government, including the Armed Forces; act as prosecutor in election related criminal cases; and act as a first instance and appellate court in deciding electoral disputes.

As a constitutional body, COMELEC is less accountable to the other branches of government and the public. Nonetheless, there are some checks and balances: • • • • • COMELEC decisions can be overturned by the Supreme Court, but only for jurisdictional excesses and grave breaches of authority. Although Congress cannot limit COMELEC’s constitutional authority, it can pass laws that direct the overall conduct of elections and thus regulate what COMELEC does in practice. Congressional commissions may examine the work of COMELEC, although they cannot directly sanction COMELEC or its members.

The Audit Commission may exercise financial oversight over all government bodies, including COMELEC. Commissioners may be removed by impeachment. The underlying theory of the constitutional framers seems to have been to create a body able to completely shield the electoral process from political interference. Its authority, if realized, could make COMELEC one of the world’s strongest and most independent election commissions. IFES Report: 2004 Philippines National Election 4 Basic Laws The basic election law is the Omnibus Election Code enacted December 3, 1985. substantially amended by the 1987 Constitution, and at least seven major laws.

• • • • • • • • • The Electoral Reforms Law of 1987 (RA 6646) – 1987 Synchronized Elections Law (RA 7166) – 1992 The Party List Law (RA 7941) – 1995 “Mindanao Automation” (RA 8046) – 1995 Voter’s Registration Act of 1996 (RA 8189) – 1996 Electoral Modernization Act (RA 8436) – 1997 Fair Election Act (RA 9006) – 2001 Act Providing for Synchronized Barangay and SK Elections (RA 9164) – 2002 Overseas Voting Act (RA 9189) – 2003 It has been (For more detail, see Annex V: Main Electoral Laws) COMELEC Resolutions COMELEC issues “resolutions” to exercise its administrative functions and implement the election laws.

Resolutions are not just administrative edicts; they have the same force as laws made in Congress3. Breach of a COMELEC resolution can carry criminal sanctions, with a minimum penalty of one year in jail. COMELEC’s practice is to issue resolutions on an ad hoc basis; a completely new set of resolutions is issued for each election. In principle, election laws and COMELEC resolutions are widely available. They are extensively debated in the media and other public fora, and amendments must be published in newspapers of general circulation before they become effective.

Laws and resolutions are in English, a language understood by the majority (but not all) Filipinos. In practice, however, the plethora of laws, lack of consolidation, and an ad hoc approach to COMELEC resolutions is confusing, even for election practitioners, giving rise to an extraordinarily high number of electoral lawyers in the Philippines. Not all COMELEC resolutions are issued in a timely fashion. For example, Resolution no. 7213, the main resolution on electoral contributions and expenditures, was passed on 31 May 2004, three weeks after the elections were held.

Pending or Proposed Laws The Omnibus Election Code and subsequent laws provide a comprehensive framework that is largely in line with international standards. Nonetheless, there are serious problems and gaps in certain areas, which should be addressed as part of an electoral reform agenda for the newly convened 13th Congress. Law to Strengthen the Political Party System* Most reformers consider this to be the most essential pending law. The intent is to encourage the development of parties based on platforms and programs, rather than on individuals and influence.

Its most salient provisions include: * Draft considered by 12th Congress. 5 IFES Report: 2004 Philippines National Election • • • • Regulation of conduct of political parties, including selection of leaders by party congress. Minimum funding by the state to duly registered national parties. Regulation of campaign financing and spending, including restricting individual campaign contributions. Banning so called “turncoatism” (the rampant practice of switching political affiliation, which weakens party structures, confuses voters, and undermines the concept of a viable opposition).

Amendments to the Party List Law* The Constitution requires that up to 20% of the members of the House of Representatives be “elected through a party-list system of registered national, regional, and sectoral parties and organizations”. The Supreme Court has determined that the current Party List Law is flawed in two major ways: The existing 2% threshold is prohibitive such that congressional seats remain vacant; and the law does not clearly define eligibility criteria to run under the party-list system.

The proposed amendments would clarify eligibility, and lower the threshold from 2. 0 to 1. 8 %.would increase the maximum number of seats per party from three to six. Implementing Law On Local Sectoral Representation* This law is designed to ensure greater representation of marginalized or underrepresented groups at the local level, by initiating mandatory set aside seats for sectoral representation in local legislatures. Law Banning “Permits to Campaign”* In some areas, particularly those under lesser control of the central authorities, it has become practice for local strongmen or armed groups to ask money from candidates for the right to campaign in the area. The draft law would specifically outlaw this practice.

Political Dynasties The Constitution bans “political dynasties,” i. e. , monopolies of political power by a limited number of families. Although the Constitution has been in force since 1987, members of Congress, many of whom come from long lines of political families, have failed to enact the laws necessary to implement the ban. Other The 2002 National Electoral Reform Summit, which brought together stakeholders from COMELEC, government, and NGOs, recommended passage of a law to broaden the knowledge of citizens and eligible voters of the electoral process, and a law mandating structural reforms in COMELEC.

Recommendations Passage of Priority Laws • Draft laws to strengthen political parties, amend the Party List Law, implement sectoral representation at local levels, and ban “permits to campaign” should be passed as soon as The law * Draft considered by 12th Congress. IFES Report: 2004 Philippines National Election 6 possible. It is well past time that Congress met its constitutional obligation to ban political dynasties, despite the obvious difficulty of the political debate. • The Consortium on Electoral Reforms (CER) is planning a summit in September 2004 to follow up on the successful 2002 Electoral Reform Summit.

Lawmakers, administrators, and activists should take advantage of this and similar opportunities to help define the electoral reform agenda for the new Congress. Consolidation of Electoral Laws • All relevant electoral laws, other than constitutional provisions, should be consolidated in a new Omnibus Election Code. If this is not politically possible, then at the least an official, userfriendly compilation of current laws and COMELEC resolutions should be produced and widely disseminated.

COMELEC or the government should develop user-friendly and accessible public information packages on important elements of the electoral system. Greater Uniformity and Consistency in COMELEC Resolutions • It is imperative that the administrative and procedural framework laid down in COMELEC resolutions be flexible and responsive to changing circumstances. However, the current practice of re-doing the framework each election cycle creates uncertainty, and hinders efficiency and transparency. COMELEC resolutions should be a standing body of law, updated and amended as circumstances require.

Resolutions should be passed well before elections. Congress should reconsider whether it is proper or desirable that an electoral body, even one with such broad constitutionally mandated powers, should have authority to issue de facto criminal laws. • 4. COMELEC The quality and credibility of the Filipino election process depends on a number of factors, one of the most important being COMELEC’s performance. Numerous stakeholders across Filipino society and even staff of COMELEC itself were highly critical of the performance of COMELEC in the May 10 elections.

While the performance of an election commission can and should be measured objectively, the subjective perceptions are equally as important when it comes to acceptance of election results. When examining how COMELEC could perform better as an institution, it is necessary to look at both improving the actual operational capacity of the organization as well as addressing factors contributing to its poor public perception. COMELEC’s Operational Capacity COMELEC’s chief responsibility is to deliver an effective electoral operation.

The May 10, 2004 election was widely and justifiably criticized for its technical flaws. The principal cause was the failure to implement the three phases of modernization, namely: 1) full implementation of the biometric capturing system / re-establishing a functional voters’ list; 2) automation of count and canvass; and 3) implementation of the VSAT results transmission system / COMELEC quick count. Serious flaws in the voters’ list potentially disenfranchised numerous voters, and the absence of an automated count and canvass meant a repeat of the controversial and convoluted manual counting process.

These technical flaws are symptoms of a wider problem, namely, COMELEC has not evolved to meet emerging needs and is entrenched in an organizationally antiquated state. The drive to modernize COMELEC has been recognized, but has narrowly focused on implementation of some discrete technologies. The push for “modernization” has overlooked the need to modernize management and operations as well. IFES Report: 2004 Philippines National Election 7 Management Structure COMELEC staff members acknowledge the management structure at the top of the organization is seriously flawed.

Originally, the Commission was designed to be the “board” of the organization providing policy direction through its resolutions. The implementation of these policies and the daily running of the operation were to be done by civil servants headed by the executive director. This approach, which is technically sound, has been eroded by the evolution of the Commissioner in Charge (CIC) system. Commissioners have divided all areas of responsibility among them. These responsibilities could include a specific subject, such as ballot printing, a headquarters, department, or even the field operations of a region.

As a result, different regions have fallen under different commissioners with little coordination on operational issues. COMELEC effectively has seven department directors with each commissioner taking operational control over his/her area and managing them directly. The executive director position has lost authority and central control over the operation. The commissioners have widened their influence, expanded their staff, and increased spheres of control and power. (See Annex IV: Organizational Structure of COMELEC) The CIC system has proven to be inefficient and ineffective.

Operational management duties belong with the executive director and his/her staff, not the Commission. If commissioners were further removed from management responsibilities, they would be better able to focus on providing sorely needed oversight and policy guidance. With commissioners being replaced periodically and long term civil servants having lost managerial control, COMELEC has little continuity in its handling of the organization. The fundamental problems in top management manifest themselves throughout the organization.

As a result, COMELEC is limited when it comes to planning, coordinating, and implementing its activities in an effective manner. Staffing COMELEC has 2,000 permanent headquarters staff and 3,000 permanent field staff in more than 1,600 municipal, provincial, and regional election offices, placing it among the largest election management bodies in the world. Despite this large body of professional election administrators, COMELEC routinely has difficulty organizing basic activities such as training of polling officials, printing of ballots, updating of the voters’ list, and the dissemination of voter education materials.

Recruitment appears to be based on civil service qualifications without defined job descriptions. Standard operating procedures do not exist and there is no staff development program in COMELEC. The director of personnel said there was no time for professional development training although he agreed, “many staff would benefit from office management training. ” Staff training is conducted when necessary and not as a matter of policy. The lack of clear job responsibilities and poor management is evident to anyone visiting COMELEC offices, which are either quite busy with tasks of questionable priority, or completely idle.

The need to professionalize COMELEC staff was consistently cited by stakeholders, COMELEC staff, and commissioners as a priority for improving the administration of elections in the Philippines. Professional development programs for COMELEC staff could be developed as a part of a broader reform package that addresses the overall structure, operation, and funding of COMELEC. Specific areas to be targeted for reform could include staffing (recruitment, training, and performance evaluations), organizational structure, and operations.

Field Structure For the 2004 elections it was generally observed that COMELEC field staff played an important role in rescuing a poorly conceived and implemented operation by COMELEC headquarters, especially concerning the voters’ list. Successes were achieved, despite the fact that COMELEC field offices are critically under-resourced and in need of improved administrative capacity and infrastructure. IFES Report: 2004 Philippines National Election 8 Another capacity problem is the absence of reliable communication inside headquarters and with the field in general.

There are visibly few computers in the organization and no on-line capacity. E-mail is rarely available and few field offices have facsimile capability. Supplies are often so scarce that offices sometimes cease to function. For example, an absence of ink and paper resulted in no voters’ lists printed and displayed in many areas. In the absence of support from headquarters, field offices resorted to seeking support from the elected officials, an obvious and serious conflict of interest. One field station visited had become dependent on a car and printer made available by the incumbent mayor.

There is a weak relationship between the field election offices and both provincial offices and the headquarters of COMELEC. Election officers do not have confidence in the ability of provincial and headquarters staff to support them; instead they fear they will be reprimanded for asking for assistance. Conversely, election officers do not have the opportunity to give input into planning and program development. Election operational processes can only be strengthened when field personnel are integrated into the planning process.

Team building between the differing areas within COMELEC is nonexistent, though it would greatly improve the relationship between field and HQ. Creating opportunities through which election officers can share experiences and provide mutual support would improve communication and strengthen professional capacities. Budget COMELEC had no budget allocated from state funds for elections in 2004, as the general rule for disbursements in a given year is based on activities the previous year (there were no elections in 2003).

COMELEC therefore had to request 4.7 billion Philippine pesos for elections from the incumbent president to be released from her special allowance. It is not an optimal situation to be “dependent” on a sitting president or competing candidate for an election budget. At the time of the election only a fraction of the budget had been released. The late release of funds had a debilitating effect on COMELEC’s operations. The dependency on the current government negatively impacted the public’s perception of their impartiality. COMELEC’s Credibility Impartiality To be effective, an election administration must be politically neutral, both in practice and in perception.

Participants in the electoral process question COMELEC’s impartiality. While it is difficult to evaluate the real nature of this alleged bias, negative perceptions are nearly as damaging to its credibility as proven bias. 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 process4.

President Arroyo appointed five of the current seven commissioners. This includes the current COMELEC chairman, 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 recent public survey, 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