CIVIL SOCIETY AND ELECTORAL EVILS


I have been getting flak lately for a statement which I indeed wrote but has since been taken out of context. In an earlier column, I did say that I was “thrilled to be wrong” because the county’s first ever automated elections did not result in an automated failure of elections. It was foremost in my mind that a regime already suffering from sleepless nights for the mere possibility of being prosecuted not just for graft and corruption, but also for the unresolved extra-judicial killings and enforced disappearances, may be tempted to opt for an automated failure of elections scenario just to desperately hang on to power. The fact that the elections did not altogether fail was indeed a reason to be jubilant and thankful and hence, my oft-quoted “thrilled to be wrong”.

The thrill begins and ends, though, with the fact that there was no failure. All the issues that are now being raised by many of those who lost in the elections are the exact same issues that we brought to court as grounds to halt the conduct of the automated elections. Take for instance the belated decision of the Commission on Elections to do away with digital signatures. Under the rules on electronic evidence, a party litigant in court could not use electronic documents unless they are properly authenticated, And how does one authenticate electronic evidence? By presenting digital signatures. Obviously, the Comelec’s decision to altogether do away with digital signatures has made it impossible to use any of the automated documents utilized in the last automated elections. Moreover, without digital signatures, results could be sent to the canvassing servers even by precinct count optical scan machines that were not used during Election Day. There was simply no way that parties and the Comelec could find out where all these data were coming from in the absence of these signatures. This was why the discovery of PCOS machines in the residence of a Smartmatic technician in Antipolo generated shouts of protests and gasps of disbelief. It could very well be that these machines were used to transmit spurious results to canvassing units not just in Antipolo, but in other places as well.

We also argued that unless Comelec allowed uninhibited review of the source code, one would not have the assurance that the now famous CF cards read the votes correctly. It did not help at all that Comelec not only denied parties and watchdogs alike their statutory right to examine the source code, but acknowledged before a shocked nation that there was error in these memory cards and that almost all of them had to be replaced at the very last minute. The fact that these cards were changed in such a jiffy further gave rise to the suspicions that they may already contain pre-programmed results. Couple this with the snail pace by which the manual random audits are proceeding, you have all the basic ingredients for election fraud.

And yet, what is it now that those who criticize me and civil society want?

Many, I believe, want civil society groups like the Concerned Citizens Movement, the group that petitioned twice to halt the conduct of the automated elections, to go beyond our advocacy against the system. To all those who adhere to this view, I beg to differ for the following reasons: one, this is no longer the role of civil society groups such as the CCM. It is my belief that civil society exists to guard against excesses of government and to ensure that the social contract is complied with: that is, the agreement by the people to be governed by the state in exchange for governance that is responsible to their needs as a people. Our duty as civil society was to inform the public about the possible pitfalls that automation may bring forth against our democracy. Our role was to identify weakness in the hope that government would introduce safeguards to protect our sacred right of suffrage. The fact that the Comelec obviously failed to address all our concerns does not detract from the fact that by highlighting the vulnerabilities of the system in not one, but two petitions before the Supreme Court, we not only fulfilled our role to inform, but also ensured, through our vigilance, that those in the Comelec and Smartmatic exerted the kind of effort that they did. And yes, I do believe that had not it been for this vigilance, we would not have what we just had: an imperfect, but not a totally failed exercise. This is an accomplishment by itself.

Second, it is no longer the role of civil society to espouse the views of those who lost and are today crying fraud. Not when many of them were so viciously critical against our concerns about the vulnerabilities of the automated system. I personally opted not to attend any of the hearings of the Joint Congressional Oversight Committee on Automated Elections precisely because of one of its leading members was calling me names for warning against the pitfalls of the system. The fact that this same person is now one of those crying fraud is the ultimate irony.

The system is obviously imperfect and yes, almost all that we warned against, except for absolute failure, did happen. Do we completely stop our advocacy? Certainly not. If only because there is bound to be another automated elections three years from now, we should not relent in our efforts to implement further safeguard to secure our right to sanctity of the ballot. But this role is so different from what the lawyers for those who lost are currently doing; theirs is part of adversarial litigation, ours is pure advocacy. While civil society and these losers can certainly cooperate, I think it would be too much for the losers to expect civil society to fight their battles for them.

FIGHTING IMPUNITY


Another judge was killed. The story was all too familiar: as Judge Andres Cipriano of the Regional Trial Court of Aparri, Cagayan was about to return to his rented room, one of two motorcycle-riding gunmen shot him at close range and in cold blood. Judge Cipriano thus became the latest victim of extra-judicial killings in the Philippines. Like the thousands of killings before him, Judge Cipriano’s death will form part of an ever-increasing number of extralegal killings that will remain unsolved. Meanwhile, his family will join the thousands of other victims who will bewail the lack of justice in this country. His killers, on the other hand, will remain scot-free and unpunished. This will further embolden them to commit other killings even for a miniscule fee. Hence, the culture of impunity continues, and worsens.

It is perhaps the problem of impunity that will become Noynoy Aquino’s Achilles heel. His family is also a victim of extralegal killings—they still do not know who killed his father despite the lapse of 30 years.

Meanwhile, the regime of Mrs. Arroyo has destroyed all vital institutions that the State normally utilizes in upholding the rule of law. She has appointed magistrates who themselves violate the Constitution, rather than uphold its supremacy. She has appointed Secretaries of Justice that have made the Department, ironically, into the ultimate tool for perpetrating injustice. Who will forget, for instance, one Secretary’s dismissal of the Alston report, confirming that these killings are happening and that the Philippines is in breach of its obligation on the right to life, as a report of a mere “muchacho” of the United Nations? Another demanded the dismissal of the petition filed by the victims of the Maguindanao massacre with the Asean Inter-Governmental Commission as a pre-condition for their continued participation in the murder proceedings pending before local courts. Most recently, another Secretary dismissed criminal charges against two Ampatuans accused of multiple murder on the weakest legal basis, that of an alibi.

Couple these with actual situations on the ground: The police is ordered to look for suspects for these killings even before they even start gathering physical evidence in the crime scene. Prosecutors, on the other hand, who otherwise could advice the police on how to process evidence in a manner that would be accepted in court, refuse to extend this cooperation, believing that investigation does not form part of their mandate. Many prosecutors also say they are precluded from participating in the investigations of these killings because they perform “quasi-judicial” functions in the determination of probable cause, the evidentiary threshold for the filing of criminal charges in court. Never mind if in the meantime, many of the cases they have filed in court are dismissed, precisely because of the failure of the police to process evidence correctly.

Witnesses, meanwhile, refuse to take the witness stand mistrusting the same State that accuses its agents of the commission of these crimes. Courts, on the hand, contribute to this culture of impunity, with the sheer length of time it takes to hear these cases. A study has found that the average time it takes our courts to finally conclude a case in the Philippines is five years. There is also the perception that when the accused killers are rich and powerful, as they often are, the victims face an uphill climb before the courts with many believing that some of our Judges are corrupt and inept.

This is not to say that all is lost. The Supreme Court, declaring that all other branches in government are in breach of their duty to protect and promote the right to life, has utilized its rule making powers to promulgate the special writs of amparo and habeas data. Amparo is Spanish word for “to protect”. Under the writ, individuals who have proven a genuine fear of a threat on their right to life, liberty and security may petition the court for special protection orders, as well as special inspection or production orders. The writ of habeas data, on the other hand, entitles a person to compel government entities acting as repository of information kept on individuals to divulge, destroy or amend these information where it would affect a person’s right to life. Admirable as these initiatives have been, regrettably, and as observed by no less than Constitutional Law expert former Justice Vicente V. Mendoza, these writs have had a more “symbolic’ effect rather than a real and effective deterrent effect on extra-judicial killings.

How Senator Aquino will rebuild the five pillars of our criminal justice system to put an end to this culture of impunity will ultimately determine the success or failure of his administration. The problems are systemic and require painful, incisive and difficult decisions. It entails a top-to-bottom overhaul of the Justice Department and will require, as a minimum, the appointment of a Justice Secretary not just with the necessary trial experience to know why cases are being lost, but also the managerial abilities to overhaul both systems and the culture currently embedded in the department. It would entail prosecuting the rich and powerful, many of whom supported him, and the political will to improve the credibility and capacity of our investigators.

Daunting as the task may be, I believe the task of restoring the rule of law in this country is possible because of Aquino. It helps that he has an overwhelming mandate to effect painful changes in this country. It helps that he himself has something to gain from the restoration of the rule of law in this country. Who knows, under his administration, he may well solve the puzzle of “Whodunnit?” to his father.

ON THE CJ ISSUE: A Breach of the Mandate


Presumptive President-elect Noynoy Aquino has been emphatic: he will not recognize an Arroyo appointed Chief Justice. Arroyo supporters have made this a casus belli against the presumptive President-Elect.

Can the presumptive Chief Executive ignore an issue that has been ruled upon by the highest court of the land? His critics say this would be an impeachable offense for culpable violation of the Constitution. Why? Under our scheme of government, the Judiciary is a co-equal branch of government and ignoring an Arroyo-appointed Chief justice would be equivalent to an infringement of judicial power.

I submit however, that the real issue is what happens when the ultimate defender of the Constitution is itself in breach of its own mandate. Under this circumstance, should it be allowed a monopoly in upholding constitutional supremacy?

The court set aside  the principle of stare decisis when it overturned Valenzuela, an earlier decision that ruled that the midnight ban on appointments covers the judiciary, without changed circumstances. It did this purportedly on the basis of  constitutional construction.  The language however, of Section 15, Article 7 of the Constitution is so clear that it precludes the need for construction: “Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.”

The Constitution is written for the benefit of ordinary persons and not just magistrates. Where the fundamental law provides for a prohibition with specified exceptions, all other appointments are equally, fundamentally prohibited. This includes appointments to the judiciary.

De Castro versus Judicial Bar Council invokes alleged intent, as mentioned by then Commissioner Florence Regalado during the proceedings of the Constitutional Commission. He however did not indicate where he derived this alleged intent aside from personal recollection. In contrast, the lone dissenting opinion of Justice Conchita Morales specifically quoted then Commissioner Hilario Davide from the proceedings of the Constitutional Commission: Section 15 of Article VII covers appointments to the judiciary.

If what the majority did was the correct way of proving intent, I shudder to think what will happen to jurisprudence when the drafters of the Constitution are no longer around. That may mean, following the technique of the majority, an eventual impossibility to prove constitutional intent in the future.

The issue is not the jurisprudence but the breach of the mandate. The fact that the court is referred to as “Supreme” is not a guarantee that it is infallible and will never abdicate its constitutional mandate. This happened in our recent history on two occasions: in Javellana when the Marcos Supreme Court sought refuge in the political question doctrine and abdicated its all-important tasks as guardian of constitutional supremacy, and in Aquino, which eventually inspired People Power 1.

The Presumptive President-Elect must keep his promise not to recognize the legitimacy of an Arroyo appointed Chief Justice for two reasons. First, he must honor the mandate of the sovereign people when they ratified the 1987 Constitution. Second, this has become a political issue already decided by the people when they gave the Presumptive President–Elect an overwhelming mandate.

Does the majority of the members of the high court believe that their rulings can be etched in stone without any political context? I submit that the High Court’s role is to uphold the supremacy of the constitution so that despots may be prevented from rewriting or interpreting the fundamental law to suit their personal and selfish interests. It should however, not be exercised to thwart the true intent of the people who gave their mandate to the constitution. And certainly, judicial power cannot and should not be used to thwart popular will of the sovereign who only now, chose Noynoy Aquino as their true leader based on a promise not to recognize the legitimacy of an Arroyo midnight apointee.#30#.

ABSOLUTELY THRILLED TO BE WRONG


When we argued against COMELEC-Smartmatic-TIM’s automated election system before the Supreme Court last year, we started our arguments by highlighting logistical nightmares that will surely mar an untested automated system. We likened this year’s automated system to the Automated Teller Machines. We said that unlike COMELEC’s overnight implementation of a nationwide Automated Election System (AES), commercial banks did not lay out their ATM’s overnight. Some of them took 18 long years to lay them out. And yet, the scope of the bank’s networks still dwarfed that of the COMELEC’s PCOS. We highlighted that the banks   took very long to lay out their ATM’s because of the accepted reality that all untested systems are bound to suffer from computer glitches. Unless you try out the system in a limited scope, the systems operator would not know what these glitches are and what the corresponding remedies should be.

We then quoted Senator Richard Gordon who, in parrying various concerns against the AES, said that all the Senators’ concerns should be noted, but meanwhile, the body should approve the law so that  “pilot testing could proceed”. It was clearly the intention of Congress to follow the footsteps of the banks in implementing their ATM’s: a limited pilot before full nationwide automation.

We then argued that outside of the dire consequences of not complying with what we said was a “condition precedent” for the holding of a full blown nationwide election system, other logistical nightmares would surely mar this year’s automated election. For instance, we cited the reclustering of 250,000 precincts with an average of 250-300 voters per precinct into only 76,000 precincts consisting of at least 1000 voters. We said that there would be massive disenfranchisement because one, voters would not know where to vote since only one in four will vote in same precinct that he has habitually voted; and two, the sheer time it would take for each voter to fill up and cast the automated ballot. Our objection then was that while voting hours were indeed extended to 11 hours, there was no time motion study undertaken to determine exactly how much time it would take 1000 voters to fill out and cast their ballots.  Later studies would conclude that only about half of all registered voters could vote during the eleven hour period.

There were also very important constitutional issues that we raised. There is the cherished principle of secrecy of voting. We asked how this secrecy could be implemented given the sheer length of the ballot and the fact that first time voters would inevitably have to ask assistance in feeding their ballot into the PCOS machines. Further, we cited a decision of the German Constitutional Court that declared that an AES that did not enable the voters to verify how their voters were actually counted, without the intervention of a highly trained specialist, is unconstitutional. We then concluded that for these reasons, we might be headed into our first automated failure of elections.

Fortunately, the worse did not happen. But did the experience prove critics of the Smartmatic AES completely false? Well, perhaps not. For while we as a nation were elated that results were known even “before we could say Garci “, the reality is that the President Elect himself, Noynoy Aquino, experienced first hand what the Concerned Citizens Movement warned against. First, there were the incredible delays in voting due to our single most major reclustering of precincts. Then there were PCOS machines that did not work and replacements that took hours to arrive. Until now, there are five million votes that still have to be canvassed due to transmission problems.  The glitches in fact were so prevalent that by midday, of Election Day, the nation was rightfully alarmed about the possibility of failure of elections.

In hindsight, failure was averted because of the timely intervention of our public school teachers and the media. In precincts where the PCOS machines did not work and a replacement was not immediately forthcoming, the teachers proceeded with the voting sans the machines anticipating that a replacement would arrive by end of the polling day. Media, on the other hand, played the role of a supportive cheerleader exhorting the electorate to be patient as at stake is the future of democracy in the country.  It helped too that Noynoy Aquino’s win was by a landslide since his closest opponent could no longer complaint about possible cheating. Ultimately, it is perhaps the dire prospect of GMA forever, should the elections fail, that prompted the electorate to withstand the torturous conditions of voting that took an average of two and a half hours when in the past, it took only twenty minutes.

The fact that results were known almost instantly bolsters CCM’s contention that we should automate only the canvassing and transmission of our electoral exercise. We argued then, as we still do now, that voting, which remained manual, and counting, in line with the mantra of public counting, should remain manual. The fact that   voting took  four hours longer than manual voting compensated for the speed by which results were counted by the machine. Had it been a tightly fought race, it would have been difficult for the losers to concede defeat since no one saw how the counting of votes was done.

But fair is fair. The elections, despite our worse apprehensions, did not fail. Credit should be given to both the COMELEC and Smartmatic-TIM for this triumph of democracy. As we have repeatedly stated, we would be more than happy if history were to prove us wrong. And by God: we’re absolutely thrilled#30#

CCM’S RESPONSE TO SMARTMATIC’S OFFER: “GIVE US YOUR PASSPORTS”


The Concerned Citizens Movement accepted the offer of Cesar Flores of Smartmatic to turn over his passport as proof that they will not escape from the country. “We are calling in your bluff. Give us all your passports and we will turn them over to Archbishop Oscar Cruz for safekeeping”, declared UP Law Prof. Harry Roque, Co-convenor of the CCM.

CCM yesterday filed anew a Petition with the Supreme Court to restraint the holding of what it describes as the country’s “first automated failure of elections”. It also asked the high court to order return to manual voting, counting and canvassing of votes for the May 10 election.

Betina Legarda, another CCM Co-Convenor said that the Church maybe relied upon by Smartmatic to return their passports should the Smartmatic PCOS machines actually work” “The Venezuelans behind Smartmatic, like us Filipinos, are predominantly Catholics. Surely, they can trust Archbishop Cruz to return their passports should there be no reason later to ensure their stay in the country”.

CCM asked all foreigners behind Smartmatic to deliver their passports to Archbishop Oscar V. Cruz at CBCP, 470 Gen. Luna St., Intramuros, Manila They also offered to pick them up should they desire

Why Agra should be happy



The recent decision of Acting Justice Secretary Alberto Agra reversing his earlier decision to absolve Zaldy and Akmad Ampatuan from multiple charges filed against them for the Maguindanao massacre is a reason for Agra himself to celebrate. Until the reversal, he came close to beating Gloria Macapagal Arroyo’s notoriety as the most hated public officer of the land. His decision will at least ensure that he will now be a distant second to his boss.
But even in his effort to recover from the flak that he has received, Agra is still full of misrepresentation and half-truths. For instance, he now claims that his reversal of his ruling is not because it was flawed, but because of new witnesses that attested to the fact that both Ampatuans were present during the planning of the massacre. This is the ultimate in palusot.

Truth to tell, the testimony of two mother witnesses to this effect are wholly unnecessary because from the very beginning, there was at least one witness that already said this. Surely, for determination of probable cause, which is only defined as the likelihood that a crime was committed and probably by the accused, that lone testimony would have sufficed. In any case, Agra still has to overhaul our jurisprudence that alibi is the weakest defense and cannot prevail as against positive testimony.

Then there is the matter of P55 million in assistance to the victims. As a pragmatist, I will advise my clients to go ahead and accept assistance freely given by well-meaning private individuals and by the state lottery office. The fact needs to be highlighted, though, that the victims are entitled to compensation from the state as a consequence of the commission of an internationally wrongful act. Here, the breach is that of the duty to protect and promote the right to life since all 197 persons accused of the massacre are all state organs: police, military, auxiliaries, and elected local officials. Money should hence be paid to them as compensation for the state’s breach and not by way of charity.

The timing of the financial assistance is also suspect. It is as if Secretary Agra is paying for the trust of the victims and public. That trust, of course, was lost when he issued that earlier resolution. Perhaps, he should be reminded that trust is earned and cannot be bought.

What about the pending disbarment case against Secretary Agra? It is in the nature of these complaints that they should not be terminated regardless of a compromise between the parties. The rationale for this is that a person who does not deserve to be a member of the most noble legal profession should not be in it even for a minute if he is undeserving.

Reversal or not, the reality remains that Agra nearly absolved two of the principal suspects in the country’s most heinous atrocity without even the benefit of hearing some of the victims, who were not furnished either copies of the petitions for review filed by the two Ampatuans, the right to be heard. This smacks of a blatant disregard of the single most important right of any citizen, that of due process. Lawyers took an oath to uphold and not to violate the constitution that provided for this right.

Moreover, the victims have made up their minds: full speed ahead.