Wednesday, July 22, 2009

Election Cases: Waste of Time and Money

"It will only be a waste of time and money," observes Pampanga Gov. Ed Panlilio's election lawyer Romulo Macalintal, when asked for his reaction to the Supreme Court's recent ruling allowing the recount of votes cast during the Pampanga gubernatorial elections in 2007. Former Lubao, Pampanga Mayor Lilia Pineda filed an election protest against Governor Panlilio by claiming that the erstwhile priest and his followers committed various electoral frauds.

This statement, coming no less from a veteran election lawyer, speaks a mouthful about the state of election cases in our country. It pains me to say this, but election cases in general do nothing except line the pockets of election lawyers, for in most cases the winners end up with empty victories, no to mention empty purses, because the favorable verdicts come in only after they have become moot. With the 2010 elections just less than a year to go, the election protest against Governor Panlilio is yet another example of an exercise in futility. The recounting of votes, while every protestant's dream, takes the longest and is the most contentious and tedious process in an election protest. The protestee's lawyer interposes every imaginable objection from the custody and handling of the ballot boxes to be re-opened to the reading and inclusion of ballots prejudicial to his client. Take it from Macalintal, who must've handled thousands of election cases (both high-profile and low-key) already, when he said that the recount against Panlilio is futile at this point in time.

With the slew of cases being filed every three years, the Philippines probably has the richest jurisprudence when it comes to election cases. A lot of defeated candidates with money to spare, perhaps excesses from the huge campaign war chests, cry they have been cheated after every elections even when the margins are huge. Many factors can be attributed to this phenomenon - which a visiting Canadian lawyer I once met during a legal forum found unbelieveable because he has never heard of election cases in his country. For one, our electoral system is prone to cheating and election officials are bribe-susceptible. Not only can election officials in charge of counting and canvassing of votes be bribed to guarantee victory for one candidate, but election judges to assure favorable judgments in election cases. Another equally strong, if not more powerful, reason is the insatiable quest for power, with all its illegitimate perquisites that promise luxury and indulgence to the holder. Politicians with such devious motivation (and there are lots of them unfortunately!) will have no qualms bribing their way to victory, both at the polls and courtroom.

If it's any consolation, law students and lawyers won't find a shortage of jurisprudence illuminating the election code and its companion laws that makes for interesting studies and provides guidance to our courts in disposing election cases before them. At least we would not be groping in the dark as US courts did in the wake of the 2000 US presidential elections between George W. Bush and Al Gore, when confronted with thin jurisprudence in trying to make sense of their varied election laws. But then again the dispatch with which these courts came out with a decision in the Bush v. Gore case (decided in less than a month) and the recently concluded legal contest between Norm Coleman and Al Franken for a Minnesota US Senate seat (completed in eight months) would make us weep.

The exceedingly slow pace at which election cases are resolved in the Philippines has turned election law litigation into a big joke. Although election cases are given preferences before regular courts and the election code directs their resolutions with dispatch, our legal system - with its loophole-ridden appeals process - makes it possible for parties on the losing end to prolong the litigation with the end goal of getting them through their terms before a decision is finally handed. More often than not election cases are resolved after the contested terms have expired or elections for the next terms have passed.

In my home town of Mabalacat, Pampanga, for example, when in 2001 the election protest against Mayor Marino "Boking" Morales was resolved declaring his long-time rival Anthony Dee the winner, Morales already completed his term of office. Then again in the 2007 case of Rivera III, et al. v. Comelec, et al., G.R. No. 167591 (May 9, 2007) - originally a petition to cancel the certificate of candidacy of Morales where I was one of the petitioners and counsels - the Supreme Court declared the ineligibility of Morales to run for Mayor in the 2004 elections. But this decision came only less than two months before the term for which he was found ineligible expired. There are tons of other cases bearing similar backdrops which i'm sure most of you can relate to that we need not cite them here for convenience.

Despite this sad reality, however, the Supreme Court, which is empowered by the Constitution to not only give meaning to the law but to promulgate rules of procedure in matters of litigation, has done nothing to put a stop to this abhorrence. Worse, it even sustains it by, for example, allowing wrongdoers to profit from their misdeeds by allowing "elected" candidates found to have lost the elections to keep their salaries, however miniscule they are compared to the illegitimate perquisites of their office, under the de facto officer doctrine. Would it not be more just that a usurper of public office be penalized by returning all the salaries he drew during his unlawful tenancy? The Supreme Court has also the penchant for entertaining petitions that do not establish new law and are clearly covered by established jurisprudence. Instead of declining jurisdiction and deferring to the Comelec or lower courts' rulings in cases squarely adhering to established jurisprudence, it proceeds to hear and publish full decisions in cases that could otherwise be disposed of by minute resolutions, thus adding to the delay in disposition of election cases.

Election litigations should not only be a lawyer's or politician's concern, but of every voter because it is an extension of the electoral process of choosing our leaders. They are designed - supposedly - to protect the voters' choice at the polls and ensure that those who court our votes are only those who are legally qualified to do so. But when they drag on indefinitely and are decided only when they can no longer serve their purpose or worse, when they are manipulated to the advantage of the unworthy, they subvert, and become an affront to, our sovereign will.

SOURCE: Philippine Commentary

4 comments:

Harley said...

I am re posting the comments I made to Dean's Facebook account.

This article is asking too much of our legal and electoral system. It also failed to consider a lot of factors in between.

Canada and the US has full electronic voting mechanism. (The US also has an electoral college/district that determines the winning candidates in the national level).

Furthermore, the legal system here does not allow much postponements and piece meal hearing. The cases are typically divided to 2 steps. Determination of probable cause by judge or jury and the trial. There is a period for the parties to prepare then a trial to completion within a week. In the Philippines, I can ask for postponement as long as I have "reasonable grounds". Plus, the recount has to be done by hand - all of them. (So if you have 5 tabulators for 2 million votes, guess how long will that take you to finish.)...

We are just experiencing what the system can offer. We can ask Congress to change the law.. but I guess they will be singing Tinman's song."ONLY IF THE HAVE THE BRAINS"

Jun Bautista said...

Harley,

While it is true that our electoral system is not automated (at least for now), computerization will still not guarantee the swift disposition of election cases. When questions arise on the integrity of voting machines in an automated election, the issue can only be resolved by reverting to manual counting of the votes involved - which would bring the point you raised regarding the length of time it will take to finish the recount. As I have pointed in my article, it is not only the manual counting itself that delays the process in a recount but the myriad objections counsels can raise, not to mention the intermediate appeals that can be interposed for every adverse ruling to the objections. The Norm Coleman-Al Franken case which involved manual recount took only a few months. So did the recounts in Florida during the 2000 presidential elections.

Regarding disposition of election cases, next only to habeas corpus cases, election cases are given high priority for resolution in regular courts. So it is not asking too much for the courts to stick to what the law tells them to do. As regards postponement, judges have the discretion to grant or deny them. In my experience, most judges are too accomodating when it comes to postponement. As the administrators of their courts, they have the complete discretion to steer the resolution of cases before them to speedy resolution. I know a judge in Angeles City who is a stickler for rules and she has just in fact recently disposed of an election case involving the Mayor of Magalang, Pampanga with dispatch. Sadly, this is an exception rather than the rule.

The procedure you outlined in the US regarding trial proceedings also exists in the Philippines, with the exception of juries. But you must be referring to criminal cases, because probable cause determination applies only to criminal cases - both in the US and Philippines.

goodbyegarci said...

Cesar Flores, Smartmatic's spokesman admitted in an article in the Philippine Center for Investigative Journalism (http://www.pcij.org/stories/2009/election-automation2.html) that Smartmatic accessed the transmission servers during a regional election in the Philippines in 2008 to unblock election results. Was this the same method used by Smartmatic in the February 2009 referendum in Venezuela where the Yes votes won lifting the term limits of President Hugo Chavez?

Jun Bautista said...

goodbyegarci,

This information has some relevance to the ongoing case in the Supreme Court, filed by Harry Roque and Concerned Citizens Mov't., to nix the poll automation contract of Comelec with Smartmatic. One of the key issues is that whether the contract entrusts control of the elections to Smartmatic, in violation of the Constitutional mandate of Comelec. Obviously, if, as you say, Smartmatic was able to "unblock" the election results by accessing transmission servers in past electionis, this constitutes control of the electoral process which is not only illegal but scary.