The Manila Times – Amending the Constitution? Consider reengineering the Comelec

By Nelson Celis | The Manila Times

LAST week, the House of Representatives passed certain amendments to the provisions of the 1987 Constitution in an executive session, and the Senate argued that there was no resolution passed by both chambers about Charter change. In the same week, our column talked about “Reengineering the automated election system.”

In line with this, should the Charter change proposals push through, the Center for People Empowerment in Governance (CenPEG) and its allies in the Automated Election System Watch like the National Movement for Free Elections (Namfrel) wish to respectfully recommend the reengineering of the Commission on Elections (Comelec) and the conduct of public counting of votes in the precincts. The latter has been discussed at length in this column, with emphasis on the use of hybrid technologies; that is, pure manual counting or through computer-aided systems and the usual electronic transmission of election results.

On the other hand, “Reengineering the Comelec” is a featured article in the book of CenPEG, Was Your Vote Counted? Unveiling the Myths of PH Automated Elections (see also article with the same title published in this column some weeks ago). It was authored by former Comelec commissioner Gus Lagman, our co-writer of this column. Let me share his piece as detailed below:

“In August 2002, the Namfrel and other civil society organizations filed an impeachment complaint against then Comelec Commissioner Luzviminda Tancangco for alleged graft and corruption, betrayal of public trust, and culpable violation of the Constitution. The complaint was endorsed by then Rep. Monico Puentevella. Not long after the complaint was filed, CBCP-NASSA (Catholic Bishops’ Conference of the Philippines-National Secretariat for Social Action) and Namfrel launched the People versus Tancangco Movement, a multisectoral group that pushed for her impeachment. But despite all their efforts, they only managed to convince 57 congressmen to vote in favor of the impeachment — about a dozen or so votes short of the required number, which is one-third of the House. Congress dismissed the complaint on Feb. 3, 2003, finding it ‘not sufficient in substance.’

“Needless to say, all those organizations supporting the impeachment were stunned and they wondered why, with all the evidence submitted, so few of the congressmen sided with the complainants. Inquiries were made and one explanation stood out — many congressmen were worried of possible retaliation from the Comelec, considering that they and/or their supporters and partymates among the city/municipality mayors and councilors were facing election cases. Plausible.

“Namfrel’s legal counsel commented thus: ‘This is one strong argument for separating the two functions of the Comelec into two distinct agencies.’

“Let’s analyze that. Comelec has basically two functions: a) administer all elections for national and local positions and all referendums; and b) adjudicate election cases.

“What qualifications should the election officials executing the two functions possess? Function ‘a’ needs men and women who have management expertise and strong system orientation, while function ‘b’ needs legal minds and a strong sense of fairness.

“It is extremely difficult to find people who possess expertise in both functions. In 2010, seven lawyers composed the Comelec — no management man, no systems man. That’s why the automation technology chosen for the May 2010 elections was inappropriate. That’s why the commission faced so many problems during the implementation. That’s why the CF cards had to be replaced just one week before the elections. That’s why vote counting was not transparent and therefore the results especially in local contests, were questionable. That’s why there were long queues during election day. That’s why the random manual audit resulted in an accuracy level way below the required 99.995 percent.

“The Comelec abdicated its responsibility for managing the electoral process to Smartmatic, in effect subcontracting the whole process to a private company. One of my colleagues said, ‘The Comelec subcontracted our democracy to a foreign company.’ Not even to a reputable one at that, if we are to believe half of the materials on Smartmatic that’s available in the internet.

“Even the manual barangay (village) and Sangguniang Kabataan (Youth Council) elections in October 2010, with only one level of consolidation, had a major problem, for which the Comelec had to issue an apology. Printing and delivery of the ballots were not completed, resulting in some 2,000 barangay not being able to hold elections on that day.

“I have nothing against lawyers, but their education, experience, and expertise are not what are required to run an efficient electoral process. In the almost three decades that I have been working with, or against, the Comelec, I have only encountered one (and only one) past chairman and maybe one or two commissioners who met the required qualifications for both functions. Obviously, searching for the right candidates is not an easy task. Add to this, the political influences that enter the picture during the selection process and we get what we get today — a far-from-ideal commission.

“On the other hand, it is difficult for a non-lawyer to handle the Comelec’s quasi-judicial function. During the 10 months and 19 days (May 3, 2011 to March 22, 2012) that I was a Comelec commissioner, I reviewed and signed a total of 443 resolutions of election cases assigned to the other commissioners, plus 87 of my own decision, including 70 that have been promulgated and 17, pending promulgation. I also issued 16 separate opinions (dissenting, concurring, separate). But to accomplish these, I had to conduct an average of two ‘case conferences’ with the six lawyers in my staff, every week! Considering my more than 50 years of IT and systems experience, I could have better spent this time on the two committees that were assigned to me — election administration and technological capability — and deferred the adjudication of cases to those with legal experience.

“If we seriously want to improve the electoral process, it really doesn’t make sense to continue on with this kind of setup. The administration of elections and the adjudication of election protests should ideally be separated into two agencies. In fact, were it not for the clogged dockets of our judges, the latter function could even be passed on to the regular courts. Or perhaps, a special ‘election court’ could be established, much like the tax court.

“Many countries have their election commissions functioning solely for the administration of elections. And some of them do not even have a single lawyer among the commissioners.

“But there’s a major obstacle. This change will require an amendment to the Constitution. So, we’ll have to wait. Unless… we try to simulate the ideal situation as early as now.

“If the President starts appointing into the Comelec, professionals with management and/or system expertise, as I believe he should, and if the Comelec en banc would pass a resolution voluntarily dividing themselves into two groups — the four lawyers (minimum number, according to our Constitution) to take care of the adjudication of election protests and the other three, to take care of the administration of elections — then the country would experience better-run automated electoral exercises from 2013 onwards, even as we wait for the Constitution to be amended.

“I hope that the commission considers the proposition, even if it comes from one of their most ancient critics — me!”

This article in the book is very timely if our legislators are seriously thinking about Charter change.

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