____________________________________ ISSUES AND CHALLENGES TO DISPUTE RESOLUTION UNDER THE PCOS AUTOMATED ELECTION SYSTEM ____________________________________ Any opinions, findings, conclusions or recommendations expressed in this publication are those of Libertás and do not necessarily reflect the views of the International Foundation for Electoral Systems (IFES) or of the United States Agency for International Development (USAID).! ! Issues and Challenges to Dispute Resolution Under the PCOS Automated Election System © 2011Libertás. All rights reserved. Lawyers’ League for Liberty, Inc. Unit 1603-B West Trade Center Bldg. No. 132 West Ave., Quezon City, Philippines Cover design by: Rabelais Medina ! ! PREFACE “Electoral justice” is a relatively new concept, albeit its underlying principles lie at the very core of the ideals of democratic elections. Essentially, “electoral justice” involves the means and mechanisms “for insuring that each action, procedure and decision related to the electoral process is in line with the law,” and “for protecting or restoring the enjoyment of electoral rights, giving people who believe their electoral rights have been violated the ability to make a complaint, get a hearing and receive an adjudication.” 1 Simply stated, “electoral justice” insures, on the one hand, that the electoral processes conform to the normative standards of free, fair, accessible, credible, and honest elections as provided in the constitution, the statutes and international instruments and treaties. On the other hand, it also guarantees that mechanisms, whether formal or informal, are in place to prevent or resolve electoral disputes arising from any irregularity in the electoral process.2 A sound system of election dispute resolution (EDR) plays a significant role in the attainment of the second objective of “electoral justice.” Acknowledging the importance of a well-functioning EDR system in the ensuring the credibility of the electoral process and in attaining “electoral justice,” Libertás began its advocacy for legal and policy reforms in this area in 2006. It surveyed the laws, processes and procedures relating to EDR in the Philippines and assessed the effectiveness of the EDR system using the following key indicators: (1) the independence and impartiality of the adjudicative bodies; (2) the accessibility of the proceedings, records and processes; (3) the efficiency of the bodies in resolving electoral disputes; (4) the acceptability and soundness of the decisions; (5) the transparency of the proceedings and of the records; and (6) the preservation of the integrity of evidence. With the support of the International Foundation for Electoral Systems (IFES) and the United States Agency for International Development (USAID), this ground-breaking initiative led to the publication in 2008, of the BASELINE STUDY ON THE STUDY ON THE !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 Jesus Orozco-Henriquez, Electoral Justice: the IDEA Handbook (2010), p.1. 2 Ibid. i! ! SYSTEM OF ELECTION ADJUDICATION IN THE PHILIPPINES.3 Building upon this initiative, Libertás conducted a more focused and in depth study of the EDR processes in the trial courts and published its findings in the early 2009.4 Libertás then scrutinized the other types of electoral disputes such as pre-proclamation controversies, disqualification cases and election offense cases. The present study explores the impact of the adopted technology for the first nationwide automated election held on 10 May 2010 on EDR issues. The study illustrates the need to holistically view the electoral processes, as some seemingly innocuous changes may actually require corresponding policy shifts. Thus, while focusing on the inadequacies of the present legal framework to meet the issues pertaining to election protest under the automated election system, the study also shows that should the COMELEC decide to adopt the same system for the next election, there ought to be some changes on how it plans and resolves issues pertaining to qualification of candidates, substitution of candidates and other disputes. Some of the needed changes might also need appropriate amendments to the existing laws. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 3 Ibid. 4 LIBERTAS (2009), ADJUDICATION OF ELECTION CONTESTS BEFORE THE TRIAL COURTS: A SECOND LOOK AT A.M. NO. 07-4-15-SC AND THE DESIGNATION OF ELECTION COURTS. ii! ! ! ! ABOUT LIBERTÁS Libertás is an organization of lawyers and legal professionals devoted to the protection of civil liberties and the advancement of sustainable democratic reforms in the Philippines. It was founded on February 2, 2002 by a group of lawyers dedicated to put their best efforts in the protection of civil liberties and human rights, the promotion of the rule of law and access to justice, the advancement of democratic reform, and the advocacy for a transparent and accountable government. Libertás is currently receiving institutional support from the National Endowment for Democracy (NED). In the eight years since its founding, Libertás has partnered with, or obtained support from, government agencies and development institutions, such as the Supreme Court of the Philippines, the Department of Education, the Philippine Judicial Academy, the Commission on Human Rights in the Philippines, the Commission on Elections, the United Nations Development Programme (UNDP), United States Agency for International Development (USAID), the British Council, the Asian Development Bank (ADB), the World Bank, the Friedrich Naumann Foundation, the American Bar Association, the International Foundation for Electoral Systems (IFES), and The Asia Foundation (TAF), in pursuit of its goal of increasing awareness of citizens’ rights and responsibilities, as well as in promoting adherence to democratic processes, good governance, and the rule of law. In December 2005, Libertás was given the Chief Justice Hilario Davide Judicial Reform Award for its efforts in the promotion of the Rule of Law. In November 2006, Libertás was given recognition by the Integrated Bar of the Philippines for its invaluable contribution to the protection of basic civil liberties in the country. Libertás is based in Quezon City, Philippines and is made up of 80 members who are in the legal and allied law professions, including law students. Its Executive Director is Roberto Eugenio T. Cadiz. iii! ! Libertás Board of Trustees includes Luie Tito F. Guia, Edwin M. Carillo, Arthur F. Tantuan, Racquel T. Ruiz-Dimalanta, Leah Veronica Olores, Geronimo L. Sy, and Jose Luis Martin “Chito” C. Gascon. Libertás was registered with the Philippine Securities and Exchange Commission as a non-stock and non-profit corporation on January 16, 2003. THE PROJECT TEAM ATTY. VINCENT PEPITO F. YAMBAO, JR. Project Director ATTY. LUIE TITO F. GUIA Resident Consultant MS. ELIZABETH REVEREZA Admin/Finance ATTY. MA. EMELYN GERTRUDES W. CORPUS-MARTINEZ Head Writer Research Team: ATTY. ISOBEL T. SOLIS ANGIE UMBAC PORTIA FRANDO-DAUZ RICKY SABORNAY AILEEN TANGONAN JACKIELEEN KATE ABIS ATTY. APRIL ROSE S. MABANES Proofreader ! JUSTICE TERESITA DY LLIACCO FLORES Consultant/Adviser iv! ! ! ! ACKNOWLEDGEMENTS Libertás extends its gratitude the judges, lawyers, and other individuals from different organizations and institutions who participated and shared their insights and expertise in the focused group discussions. Libertás specifically acknowledges all the RTC judges who generously gave their valuable time answering the survey questionnaires Libertás also appreciates the help extended by the following offices in the gathering of data for this study: the Court Management Office (CMO) of the Office of the Court Administrator (OCA); the Election Contests Adjudication Division (ECAD) and Office of the Clerk of the Commission on Elections (COMELEC); the Office of the Tribunal Secretary of the House of Representatives Electoral Tribunal (HRET); the Senate Electoral Tribunal (SET); and the Presidential Electoral Tribunal (PET). Libertas would like to particularly thank Atty. Leah Abad of COMELEC ECAD; Atty. Baby Ringol of the Office of the Clerk of Court, Supreme Court; Atty. Girlie I. Salarda, Tribunal Secretary of the HRET and her predecessor, Atty. Daisy Panga- Vega; and Atty. Irene P. Guevarra, Tribunal Secretary of the SET. Lastly, Libertás acknowledges the generous support given by the International Foundation for Electoral Systems (IFES) and technical support extended by the United Stated Agency for International Development (USAID) for this study. This marks the fifth year of the partnership between the Libertás and IFES in the advancement of reforms in the area of election dispute resolution (EDR). v! ! vi! ! ! ! TABLE OF CONTENTS PREFACE i ABOUT LIBERTÁS ii THE PROJECT TEAM iv ACKNOWLEDGEMENTS v CHAPTER I. INTRODUCTION 1 A. Background of the Study 1 B. Purposes of the Study 3 C. Methodology 4 D. Scope and Limitations 5 E. Organization of the Study 5 CHAPTER II. PHILIPPINE EDR SYSTEM THE 2010 AUTOMATED ELECTION 7 A. The Philippine Election System 7 B. The Commission on Elections (COMELEC) 8 C. The Philippine EDR Mechanisms 9 1. Types of Election Disputes in the Philippines 9 a. Disputes Relating to the Right to Vote 9 b. Disputes relating to Candidate Qualification and Political Party Registration 10 c. Disputes Relating to the Certification Process 11 d. Disputes Relating to Criminal Violation of Election Laws 12 e. Disputes Relating to the Integrity of the Election Results 12 2. Adjudicative Bodies Involving Election Contests