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The Supreme Court’s shadow in our elections


More than a year ago, in the lead up to the May 2010 elections, the atmosphere was full of doubt and uncertainty. We were going to have our first-ever fully automated elections. And it was under the watch of a most unpopular and least-trusted president, Gloria Arroyo.

So you can imagine the conspiracy theories that held sway—that GMA was pushing for automation of the elections in order for it to fail so she could extend her stay in office. Two things were key here: the fear of the unknown—how automation worked—and the fear of more of GMA.

Rep Gloria Macapagal Arroyo

Former President (now Pampanga Rep.) Gloria Macapagal Arroyo

Apart from the public’s lack of understanding of the technical details of election automation, news, blogs and columns buzzed that the company that bagged the P7.2-billion peso contract was linked to the First Gentleman Mike Arroyo.

There was intense debate

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in the media on whether we should do partial or full automation or just stay with manual polls. This debate reached the Supreme Court. A group of citizens urged the Court to stop the automation, citing, among others, that the technology did not guarantee protection of the constitutional right to secrecy and sanctity of the votes.

Moreover, the conduct of the elections was being left to the company that was doing the automation rather than the Commission on Elections. We had immense fears of “privatizing” our single biggest exercise in democracy—and to a dubious entity at that.

In a packed courtroom, oral arguments were held and these were closely watched by the media. The May 2010 election was framed as a make or break for Philippine democracy as it came after an unusually long term of the president. Instead of six years, Mrs. Arroyo served for nine years.

Poll automation won. The Court junked the arguments of the citizens’ group. In its decision, the Court said that “it will not venture to say that nothing could go wrong in the conduct of the 2010 nationwide automated elections. Neither will it guarantee, as it is not even equipped with the necessary expertise to guarantee, the effectiveness of the voting machines and
the integrity of the counting and consolidation software embedded in them. That difficult and complex undertaking belongs to the Comelec as part of its mandate to insure orderly and peaceful elections.”

It called on the citizens to assist the Comelec: “After all, peaceful, fair, honest, and credible elections is everyone’s concern.”

Philippine Supreme Court (Newsbreak photo)

The Supreme Court decision paved the way for the country’s first automated elections.

As it turned out, automation brought us the fastest election results ever. And these were credible.

Still, as elections neared, the nervousness over the automated polls continued. This time, another civil-society group went to the Court asking the Justices to compel the Comelec to disclose is preparations for the elections.

Some election watchdogs found Comelec to be opaque. They wanted the technology and all its nuances to be open for public scrutiny.

Like a cliffhanger, the Supreme Court voted for transparency a few days before the May 10, 2010 elections. It cited the Constitution’s provision on the public’s right to know.

The Court ordered the Comelec to disclose the full details of its technical preparations such as the nature and security of all equipment and devices, including their hardware and software components.

The Court was emphatic: “This Court, as the last bulwark of democracy in this country, will spare nothing in its constitutionally granted powers to ensure that the fundamental right of the people to information on matters of public concern especially on matters that directly affect our democratic processes, is fully guaranteed, protected, and implemented.”

Till today, not all of the information, though, had been released to the public.

But two election-related cases blot the Court’s transparency and automation decisions. These show the politicized character of the Court.

Before automation, appointive government officials who were running for office were considered resigned once they declared their candidacies. Such was the law’s requirement, to even the playing field among rivals. Clearly, public officials who were candidates and who continued to hang on to their posts had an advantage: the benefit of a platform or a pulpit and resources.

Two officials from the Department of Environment and Natural Resources who were planning to run for local posts challenged this in the Supreme Court. They argued that the early filing of candidacy was merely to give ample time to print ballots. It didn’t automatically make them candidates, not until the campaign period started. They said they need not leave their government positions.

The Court was sympathetic to the two government officials. In its decision, the Court invoked the equal protection clause, saying that the law “unduly discriminates” against appointive officials because it allows those elected to keep their positions even after they had filed their candidacies. The ruling thus gave appointed officials an extended lease in office. This benefited allies of President Arroyo who ran in the elections.

With this decision in December 2009, the Supreme Court entered the political season.

Later, the Court ruled in a controversial case which clearly favored Mrs. Arroyo’s son.

A new district in the province of Camarines Sur was carved so that her youngest child, Dato, can run for Congress and not deprive their ally of a district. The additional district gave former Budget Secretary Rolando Andaya Jr. a place where he can run. Despite its failure to fulfil the population requirement, the Supreme Court ruled that the new district was constitutional.

The new district in Camarines Sur was created in 2008 in a law signed by President Arroyo.

The Supreme Court decision came as a surprise after it voided in January 2010 a new district in Malolos City in Bulacan province because of its failure to meet the minimum population requirement. The same issue was raised against the creation of the new Camarines Sur district.

The Constitution requires a minimum population of 250,000 for a local government unit (LGU) or clusters of LGUs to be declared a congressional district.

Based on the 2007 census, the population of the new district was 176, 383, which was

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below the minimum population requirement of 250,000 set by the Constitution.

Oops, during elections, even justices’ partiality shows, like a bright stain in their black robes.

These are excerpts from the author’s talk during a panel on Philippine elections at the Association of Asian Studies conference last month in Hawaii.

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  1. “The court as the last bulwark of democracy” — ek-ek!

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