The Manila Times – Time to change our laws on election protests

By Antonio P. Contreras | The Manila Times

SEN. Imee Marcos, chairman of the Senate Committee on Electoral Reforms, should begin the process to change the laws covering election protests. It’s about time we overhauled a system that favors the commission of election fraud, which is treated as an administrative matter requiring a mere administrative procedure instead of court proceedings with penal consequences.

It is simply a travesty that electoral protests take a long time to settle, and that they impose an enormous financial burden on protesting candidates. We have seen real winners proclaimed just months or weeks, even days, before the terms of office of the post they are contesting expire. There are even cases in which the terms have expired but the controversy had yet to be settled. In effect, we have a system that is stacked against a protestant, structured in a way that, if one were to apply game theory, it pays to win by cheating since the chances of being unseated is lower.

What makes this equation more favorable to cheating candidates is the fact that under our laws there is no penalty for someone who is proven to have cheated. There is no prison term, no fines and no serious consequences such as perpetual disqualification from holding public office. Cheating candidates are not even required to return the salaries and benefits that they received while occupying a post they are eventually proven not to have deserved. And their names will not even be expunged from the roll of persons holding such position.

It’s about time we hold automatic recounts when the margins are below a certain threshold. Machine recounts, where ballots are again fed into the vote counting machines, should be mandatory when the margin is less than 2 percent of the votes cast. A manual recount should be automatic when the margin is less than 1 percent. And this should be done without any petition filed, and should at the state’s expense. Any petition for recount for higher margins, however, can be filed but with the petitioner paying for the cost. This process of ballot recount can be considered an administrative procedure and can be handled by the Commission on Elections and the electoral tribunals, for which no punitive consequence is imposed on the candidate and the party that benefited from a flawed ballot count.

However, considering the fact that election fraud goes beyond the ballot, and would therefore not be revealed by a machine or manual recount, it is important to have another venue by which the integrity of our elections can be protected. Filing cases of vote buying, ballot box and ballot tampering, pre-shading of ballots, and electronic tampering of the automated election system, in addition to those acts now treated as violation of election laws, should be an option that should be given losing candidates. This can be filed as a separate action from a mere recounting of ballots, and should be treated as a criminal case handled by special election courts.

In this way, a cheating candidate who engages in electronic manipulation, or in a massive pre-shading of ballots operation, will not be allowed to get away with the crime. Thus, they can no longer exploit the outdated system of relying mainly on ballot recounts for settling election-related cases.

What would be more important in this system is that cheating candidate will now be held accountable for his actions, or for benefiting from illegal acts. At present, elected officials have been unseated for violating election laws such as exceeding the allowed expenses set by law, or by not having the qualifications. But what the system provides is that these candidates are not criminally penalized, and they are allowed to run again in the next election cycle. Furthermore, the vacated seat is given to the next in the line of succession, and not to the candidate with the next highest votes.

It’s about time we change this system. The cheating candidate should be perpetually disqualified from holding public office, and should be fined and/or imprisoned. Those who enabled or participated in the cheating should be punished, and if these are incumbent officials, then they should also suffer the penalty of perpetual disqualification from holding public office. In Thailand, the leaders of a political party found to have engaged in an election offense are also penalized. We need to adopt a similar policy.

And since the offense was committed during the elections, and denied the people their rightful leaders, it is but just that the system should not award the vacated seats to the next in line, or call for an election to fill the vacancy. It is only fair that the seat should be given to the person who garnered the next highest number of votes.

Thus, we would be spared from a system where ballot tampering happens, or elections are not actually held and instead the ballot boxes are filled with pre-shaded ballots, or that massive vote buying, or voter intimidation occur. These are things that will never be caught or detected by a mere ballot recount. After all, the machine or manual recounts will still count ballots, even if these are products of fraudulent acts.

Electoral tribunals are not mandated to address the criminal aspect of election controversies. Hence, there is a need to create special election courts since the determination of the existence of election fraud, unlike a recount, is not a mechanical, administrative matter. It would be evidentiary in nature, and would require the presentation and testimony of witnesses and experts.

Many have been pushing for the reinstatement of the death penalty for heinous crimes. We are having debates on lowering the minimum age of criminal responsibility. If there is one act that should warrant our collective disgust, it should be election fraud since it assaults the very core of our political community.

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