AS we close in on the 2019 national and local elections, the weaknesses of electoral system’s legal infrastructure are coming into sharper and sharper focus. To be perfectly frank, there are only so many variations to dura lex sed lex, that a person can say before it gets depressing. In any case, I am not a fan of the defeatism implicit in that old saw. If the law is harsh—or in some cases, hopelessly behind the times—one shouldn’t have to simply accept it as a given. Laws can be changed; election laws are no exception, and these three suggestions—which are my own, not the Commission on Elections’s (Comelec)—are as good a place as any to start a discussion on possible legislative solutions.
First, on the matter of premature campaigning, isn’t it high time to amend how the laws define the concept of “candidacy”?
In the landmark Peñera decision, the Supreme Court pointed out that the laws in force explicitly say that a person can only be considered a candidate—and thus be subject to campaign rules—at the start of the campaign period. By amending the definition of “candidate,” to clarify exactly when a person becomes a candidate in the eyes of the law, campaign rules can be made to apply to persons from the moment they file their certificates of candidacy (COC). This would close the absurd loophole that allows premature campaigning to be committed only during the campaign period.
Second, it occurs to me that it is equally timely to craft laws that can be used to bar patently unqualified people from becoming candidates in the first place.
Admittedly, this is going to be tricky. The current rule is that the Comelec has to accept certificates of candidacy, regardless of the filer’s obvious lack of eligibility. The task is, in legalese, ministerial. This rule has led to some ridiculous outcomes, such as a 40-year-old person running for Sangguniang Kabataan. Nevertheless the rule is, in fact, grounded on sound democratic principles, i.e., the Comelec cannot decide on a person’s right to vote and, by necessary implication, the right to be voted for (it’s in the 1987 Constitution); it can only determine compliance with statutorily declared requirements for eligibility. Since a person filing the COC is simply expected to swear an oath that he is eligible—and there is no practical means for the Comelec receiving officer to determine the veracity of that assertion—validation is put off for a later date, after the COCs have been filed.
Thus, although the mechanism to weed out ineligible persons does exist, it clearly comes into play too late. And with the administrative gears not exactly turning at a blistering pace, the most likely result is that the ineligible person actually gets to campaign and be voted on; in some cases, even win.
As I see it, corrective legislative action need not be premised on giving the Comelec a power expressly denied to it by the Charter, but to simply enable it to prevent abuse. One way to do this is by mandating a sort of prefiling period where individuals who intend to run for office are required to submit documentary proof of their eligibility. The receiving Comelec officer will then have the means and the opportunity to reliably determine compliance with eligibility requirements before the actual filing of candidacy; and if proof of noncompliance is available at that early stage, there ought to be no reason to accept the COC being filed in the first place. At the very least, the time needed to deny due course to the certificate of candidacy would be cut down drastically. As they say, a stitch in time saves nine.
Third and finally, we need to ask: If there’s a viable legislative solution that will curb vote buying? Up to now, the only reliable way to address this is to wait for vote-buying to actually be committed. Law enforcement then swoops in to arrest the perpetrators. So we need to ask, is there a way to keep vote buying operations from getting off the ground in the first place? In 2013 the Comelec posited a solution, which, unfortunately, got stuck with the grotesque label “money ban.”
That proposal was based on the fact that most vote-buying operations are cash transactions where amounts ranging from P20 to a few thousand are distributed with “sample ballots” or other campaign swag, like t-shirts. The solution, therefore, was to impose strict regulations—not a “ban” per se—on the possession of large amounts of cash during the period immediately prior to an election. In essence, the regulation creates a sort of disputable presumption that a person who is found holding, without clear justification, large sums of money, intends to use it to buy votes. This would potentially nip vote-buying operations in the bud, making elections that much cleaner and fairer.