[ANALYSIS] Attempts to retain power and the election system

This is the first half of the speech delivered by lawyer Christian Monsod during Rappler’s #PHVote Dialogue on June 5, 2021. You may read the second half here.

The context of today’s forum is the coming 2022 elections. Since free, fair, and regular elections is the basic building block of democracy, we want to know about the quality of our election system, especially with the automated system adopted in 2010 and the state of our democracy. 

The 2022 elections is a regular constitutional process when we vote as a sovereign people on who will be our agents to carry out the functions of government. Sometimes we forget that we the people are the principals and government officials are our agents, and not the other way around, as some government officials seem to think by the way they govern.

The power to vote may be the only right in our democracy where everyone is absolutely equal and the power of one vote when protected, collected and respected is the essence of democracy. Of course, democracy is more than about elections, and we will talk about those factors as well. 

First, let’s talk about the current political landscape. In the constitutional design, the outgoing president would be preparing to step down by now by fast-tracking unfinished promises, unworried about being held to accountability and committed to a peaceful transfer of power. 

Unfortunately, not every president since 1972 has respected that design – Marcos by Martial Law and a new Constitution with authoritarian powers, Ramos by Pirma to amend the Constitution to extend his term, and Arroyo by a revision of the Constitution to shift to a federal parliamentary system and by a last resort attempt to a constituent assembly under a joint vote of the two legislative chambers. Estrada, Arroyo, and the Congress with JR-1 also proposed amendments to the economic provisions that would allow unrestricted foreign ownership in six areas of investment – land, natural resources, public utilities, media, advertising, and education. 

All six attempts after EDSA failed, two by decisions of the Supreme Court (Pirma and Sigaw ng Bayan) and the others withdrawn for lack of public support. Charter change after the 1987 Constitution were all perceived as a smokescreen for self-serving moves for more power and more opportunities for more money, whether by pork barrel or transactional legislation, at which the Congress and big business are most adept.

What about President Duterte? It should be clear by now that his concept and practice of governance involve authoritarian powers. As early as 2015, Davao City Mayor Rodrigo Duterte already mentioned, among other plans, his plan for a revolutionary government. He said he would padlock Congress and the judiciary through extra-constitutional means. The RevGov, he said, is meant to fix government and the Constitution because “the wellspring of corruption is the Constitution itself.”  

And from all accounts, his Filipino audiences whether here or abroad reacted positively to his statements, even the outrageous with the foul language. Why that reaction? Was it because they saw the authentic representation of the real change they have been waiting for in him?

In 2016, many voters deserted the mainstream because, as an observer said: “most voters hungered for politicians who can make a rousing argument for drastic solutions.” 

And if many of us are increasingly frustrated about a system that can’t seem to find its bearings, can you imagine the frustration of the poor amidst a first-world culture of consumerism and of shameless self-promotion by those in power to preserve their entitlements and domination of national policies?

In other words, Duterte the Mayor got it right in 2016 on the deeper yearnings of the people and was elected by a huge plurality. Whether a RevGov was a trial balloon or not is irrelevant. We can only ignore the sentiment behind the vote for him at the peril of undertaking the wrong solutions.

What are the options of the President to keep power or ensure a successor that will protect him from accountabilities while in office? 

The RevGov option is no longer on the table. The military, as early as 2016, already said that it is outside the four corners of the Constitution and would not support it. 

The shift to a federal-parliamentary system appears to be dead in the water. And the latest House proposal (JR-2) is limited to amendments to provisions on foreign investments in the same six provisions mentioned earlier. If JR-2 is a trojan horse, then additional amendments can be inserted in a ConAss, which can be done by the plenary body, such as amendments to allow the President to stay in power beyond his constitutional term, 

I believe that the administration cannot get the 18 votes (2/3 of 24) in the Senate needed to approve it. 

However, the political game can drastically change depending on whether or not the Supreme Court (SC) will live up to its role in the system of checks and balances.  Since 2016, the SC has tended to defer to the President such as  on the issue of the “sufficiency of factual basis” for the proclamation of martial law, which can now be declared anytime anywhere by the President, the burial of Marcos in the Libingan ng mga Bayani, the detention of Senator Leila de Lima on the testimonies of convicted felons, the removal of Chief Justice Maria Lourdes Sereno by Quo Warranto proceedings, and the denial of a petition allowed by the Constitution on the people’s right to know the state of the President’s health. 

There may be another issue for the SC. On charter change, there is a separate or joint vote on amendments or revisions by the Constituent Assemby (ConAss). The latest proposal by the House is to amend six economic provisions on foreign ownership. Speaker Lord Allan Velasco has stated that the House agrees with the Senate on a separate vote. But the issue might be brought up to the SC if he reneges on that position or if a petition is filed anyway by anybody like Solicitor General Jose Calida asking the SC to interpret the constitutional provision that says that revisions or amendments may be proposed by “the Congress upon a three-fourths vote by all the members.”

The framers, including me, have admitted that there was an oversight in the wording because the Article on Amendments was approved before the vote for a bicameral legislative department but that the intent was for a separate vote, primarily based on the hierarchy of laws and the bicameral nature of the legislative department. If the SC rules that the provision should be interpreted literally to mean a joint vote, it will be open season for all kinds of proposals for revision or amendments and subjected to a plebiscite within 60-90 days after the approval by the ConAss or even simultaneously with the May 2022 elections. It could include “constitutional authoritarianism,” a federal-parliamentary system with an open-ended transition period, replacing social justice as the heart of the Constitution by the agenda of business as offered by the PDP-Laban version other changes and costs too many to discuss today. 

And lately, the issue will certainly reach the SC: whether the President can run for VP. A jurist I respect justifies it this way. There is no express prohibition on a president running for vice president, and “restrictions on the choice of the people should be strictly construed as undemocratic.” 

My position: clearly, it is an ingenious and insidious move to circumvent the constitutional prohibition on re-election. During the deliberations of the constitutional commission the six-year term without re-election was a compromise to the four years plus another four years provision, and elections can be held every three years instead of two years. Moreover, I might add that two years of the first term are usually spent preparing for re-election. That is the intent of the no re-election provision. To allow a president to run as VP would open the door to a term in office even longer than the replaced provision of a maximum of eight years.

Does that make sense? The no re-election provision should be interpreted as also a prohibition against holding the presidential office for more than six years, with only one exception as expressly provided in the Constitution –  the case of a vice president succeeding to the presidency being qualified to run for president if she has not served more than 4 years as president, like Arroyo. If she serves for more than four years, she is prohibited from running for president even if it is not a case of “re-election.”

And finally, there is the Anti-Terrorism Act (ATA). If the SC rules that it is lawful, it would be a deadly weapon for “lawfare,” defined as the misuse of the law for self-serving purposes such as suppressing the opposition and the will of the voters in the 2022 elections. The ATA is a proxy for martial law, with even broader authoritarian powers of detention, designation, or red-tagging, surveillance, and freezing of bank accounts of political targets. Hence, the independence of the SC will be tested again in the pending Anti-Terrorism Act case. 

The question is: how will the SC vote on these cases?  I will come back to this later.

Where are we on the election system?

My answer – despite reservations on the lack of a “private count,” despite warnings of potential massive fraud and examples of poor governance in its implementation: automated elections has generally worked and the results accepted by the people from its introduction in 2010 and in the 2013, 2016 and 2019 elections. The people liked the ease of voting and the quick posting of the results. 

As planned in 1992 during my watch, the original purpose of automation was to address the problem of massive cheating at the canvassing level – municipal, city, provincial levels.

The system adopted in 2010 included an automated count even at the precinct level. However, it still involved a paper ballot (compared with computer voting) which is still the best evidence in election protests. A copy of the precinct count is distributed to watchers before the electronic copy is transmitted to the canvassing points, as another safeguard against fraud. And then, there is the Random Manual Audit of ballots at the precinct level as another safeguard. It was not handled well in 2010 by PPCRV, and Namfrel handled it in 2013. We have with us today the Executive Director of Lente Ona Caritos which handled it in 2016 and 2019, when former Commissioner Luie Guia was the supervising Commissioner on the task.  I will ask her to say something about it later. Both Ona and Luie are members of the Executive Committee of Koalisyon.  

In the coming elections, the Comelec is saddled with the consequences of the pandemic such as managing political campaigning, the logistics, the “assembly line” nature of canvassing and by the bad decision of a previous Comelec to buy the Smartmatic machines and at a high price and the fact that many machines have to be “refurbished” and may not function property as already happened in 2019. 

But there is a need for reforms to address the perennial question: are our elections really democratic when warlordism and the so-called “command votes” are still present in many places and when money, especially government money, is used to influence the vote? Vote buying is even harder to control now with more sophisticated means of transferring money with GCash and online banking. Then there is the failure of the Comelec and the Congress to address the problems and abuses of the Party-list elections arising from deficiencies in the law, questionable decisions of the Supreme Court and its poor implementation by the Comelec? And the potential for poor governance at the Comelec is the tendency of the appointing power to choose commissioners who will do their bidding. This has happened often in the past. 

By February 2022, the chairman and two other commissioners are stepping down. And with the present vacancy, the President will be appointing four commissioners including a chairman. The present Comelec has not exhibited any partisanship and I believe will not engage in or allow any manipulation of the election results. So the new appointees should be closely watched especially since the Comelec may be tested soon on the issue of the President running for Vice President.  – Rappler.com

Christian Monsod served as chairman of the Commission on Elections during the Corazon Aquino administration. He founded the Legal Network for Truthful Elections and served as the honorary chairman of the coalition, and became a pioneer for National Citizens’ Movement for Free Elections (NAMFREL). Monsod was also one of the framers of the 1987 Philippine Constitution.