Dismal Lack of Campaign Finance Reform in the Philippines

While the United States is still abuzz with the US Supreme Court's recent ruling in Citizens United v. Federal Elections Commission - which removed the prohibition on campaign spending by corporations and unions directly from their coffers, in a latest round of more than a century of debate to reform campaign finance - campaign finance laws in the Philippines have remained unchanged for decades.

Money, as an essential component of politics, needs to be regulated for its corrupting influence and, peculiarly in the Philippines, to level the playing field between moneyed and cash-strapped candidates. It is a given that one cannot successfully wage a decent and successful campaign without sufficient funding, for reaching out to voters and getting one's message across, not to mention the logistics needed in maintaining a political campaign, necessitates money. But when campaign finance is not regulated - as to source, extent and manner of spending - it becomes a problem.

The most pernicious effect of loose or unregulated campaign funds is the corrupting influence huge contributors exert on candidates once elected into office. Debt of gratitude becomes a factor in the grateful official's conduct in office, whether expected or not. More often than not, however, the generous donor expects a quid pro quo; a return on investment, if you will.

A simple illustration will show how unregulated campaign funds factor into the public functionary's conduct. A person who is elected mayor in a city, for example, is the beneficiary of huge campaign contributions from businessmen. When these businessmen-contributors apply for a license in setting up new business or when legislative measures are considered in the city council that will affect their pocketbooks - such as the imposition of new or higher taxes - the mayor-beneficiary will certainly be clouded in his judgment as payback time beckons.

Even in the unlikely scenario that the contributors expect nothing in return, the grateful official will likely protect the interests of his benefactors for fear of a backlash, by displeasing them or deterring others from making huge donations to his campaign in the future.

The other problem of unregulated campaign funds is the inequitous situation it creates between the moneyed and cash-strapped candidates. While the affluent has access to unlimited resources in reaching out to voters, the candidate of small means struggles to get his or her message across, which makes politics in the Philippines largely an affair for the wealthy few.

Finally, even if it were to be assumed that a candidate spends his or her own money in the campaign, there is that danger of him or her recouping the expenses once elected into office by pursuing nefarious "under-the-table" transactions and other corrupt practices.

Ever since Batas Pambansa Bilang 881 (Omnibus Election Code), the country's basic election law, came into effect in 1985, there has only been one legislation that introduced changes to campaign finance in the Philippines, which is Republic Act No. 7166 or the Electoral Reform Law. Even then the only reform introduced, aside from the penalties imposable for violation thereof, is the increase in the amount of campaign expenditures that may be incurred by a candidate, by increasing it from P1.50 for every registered voter in the constitutency for which a candidate filed a certificate of candidacy to P10.00 for the president and vice president, P3.00 for other candidates with a party, P5.00 for other candidates without a party, and P5.00 for political parties.

A bill introduced in the House of Representatives in 2007, which seeks to punish political turncoatism and impose limits on donations and expenditures by individuals and corporations, and in the Senate in 2004 by former Senator Ralph Recto (also deals with political turncoatism, creation of a state subsidy fund to augment the campaign activities of accredited political parties, and imposes limits on contributions), never saw the light of day.

Interestingly, the target of regulation in our existing laws is the spending aspect only. Our election laws are notoriously silent on any limit on contributions which go to the core of corrupting elected officials. Any person or business entity not disqualified by law may contribute any amount to a candidate's coffers. Although the law imposes limits on the amount and type of campaign expenditures, and candidates are required to report all contributions, there is nothing that regulates the excess contributions. After the elections are over the excess pretty much becomes discretionary funds of the candidates. It is no wonder then that Congressman Mikey Arroyo could say with a straight face that campaign contributions are among the sources of his increased net worth when questioned about his Statement of Assets and Liabilities.

Even with the existing limits on expenditures, however, it is no secret that candidates have always conveniently and flagrantly ignored them. Based on Comelec's election statistics for the 2007 national and local elections, there are about 45,294,430 registered voters nationwide. At a limit of Php 10.00 per registered voter, presidential and vice presidential candidates for that election should have spent only a maximum of P450,294,430.00 - a far cry from the P5 billion that one needs to be elected president, according to a 2008 report by the Pera't Politika Working Group, which is a consortium of public interest organizations formed to monitor election spending. The same report states that the expenditure for senatorial races ranges between P150 million and P500 million, P10 million for mayor, and P15-150 million for governor. It should be noted that these figures go way beyond the limits imposed by law.

As if lack of campaign finance reform is not enough, existing regulations are rendered meaningless for want of effective enforcement. Not one candidate has yet been penalized for violating spending limits. Not that I find pleasure in seeing someone punished, I'd be happy to know if Comelec can point to particualr cases. And even if it can, such cases would surely be dismally few and involve largely unknown candidates, compared to the hundreds of candidates who routinely violate the strictures on campaign spending. According to a 2004 article by Glenda M. Gloria, entitled "Selling a Candidate," cited in Pera't Pulitika's report, the media earned more than a billion pesos from political ads for the 2004 elections in just a span of four months. This is a tell-tale sign that spending limits have been violated, yet the Comelec has not taken any action against those responsible.

This early, presidential candidate Sen. Manny Villar has already reportedly spent P543 million in political ads on TV, putting him among the top 20 television advertisers. There's no telling how much he would spend more come formal campaign period. What is certain, however, is that we would see the same deluge of television, radio, and newspaper advertisements which would gobble up huge sums of money. But after elections are over, candidates will once again doctor the contribution and spending reports they will submit to Comelec, and the latter will simply file them away and pretend that the law has not been violated.

Comelec's Flawed Reasoning

In a 26-page decision, the Commission on Elections’ (Comelec) Second Division junked the disqualification case filed against Erap Estrada by ruling that the constitutional prohibition on reelection to the presidency found in Article VII, Section 4 applies only to the incumbent president.

According to Commissioner Nicodemo Ferrer, who penned the decision, “respondent Joseph 'Erap' Estrada no longer holds a public office; more importantly, he is no longer the president and wields none of the vast powers of this position. He poses no danger to anyone. Because of this prevailing status, a simple application of the rule will lead any reasonable and logical person to conclude that the prohibition against the reelection of 'The President' does not apply to Joseph Estrada.”

The constitutional provision in question is as follows: “Section 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter. The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.”

While it is true that Estrada is no longer president and the phrase “the president” on the second sentence of section 4 seems not applicable to him, the decision conveniently disregarded the adjective “any” before the word reelection on the same sentence. Any reelection clearly means election again either immediately after the expiration of one’s term or after an interval.

If it were the intention of the framers of the Constitution that the prohibition applies only to the sitting president, then the phrase “any reelection” would not have been used for in that case the adjective “any” would be useless. In contrast, the use of the definite article “the” before “president” presents no anomaly or tension with the interpretation of an absolute ban on reelection. The second sentence of section 4 would simply mean that once someone is elected as president an ineligibility to run for president again attaches during his or her incumbency and in the future, that is when he or she is no longer president. According to former Comelec Chairman and Constitutional Commissioner Christian Monsod, a person elected as president only gets one shot at the presidency.

In defending his bid for reelection, Estrada insists that it is the third sentence of section 4 that applies to him, rather than the second sentence. Recall that the third sentence disqualifies any one who has succeeded as president and has served as such for more than four years from being elected as president at any time. Estrada claims that he served the presidency for less than four years and, therefore, not ineligible to be elected as president. The third sentence, however, applies only to one who became president not by election but by the operation of the rule on presidential succession for two reasons, viz: first, the provision speaks of one who has “succeeded” as president; second, in prohibiting such person from becoming president again, it uses the phrase “shall [not] be qualified for election” instead of “shall [not] be qualified for reelection” simply because not having assumed the presidency via election, it would not be correct to use the word “reelection.”

The second division further justified the decision to allow Estrada to run for president by saying that “in the end, it is the Filipino people who would act as the final arbiter on whether they would have Estrada sit again as president. It is the electorate’s choice of who their president should be. The better policy approach is to let the people decide who will be the next president.”

This reasoning disregards the fact that the Constitution is an embodiment of the people’s will. While the people did not directly draft the Constitution it is the people that ultimately gave it life and binding force when they ratified it in a plebiscite. Thus, when the Constitution imposes disabilities on certain persons from becoming public officials, it is simply expressing the people’s will on who they want to run for public office. So what will is Ferrer talking about?

Besides, following Ferrer’s reasoning, if indeed it is a better policy approach to let the people decide who will be the next president then why not apply the same reasoning to other candidates that they have unilaterally disqualified for being nuisance candidates? It should be noted that these candidates meet the minimum qualifications, and do not suffer any disability, under the Constitution. To say that a person should be allowed to continue his or her candidacy and let he people decide is like saying never mind if that person is disqualified, just let the people decide if they want to elect him or her to public office.

Such a flawed and dangerous proposition, not to mention double standard as far as other candidates are concerned, disregards the basic principles of republicanism where the people’s will is expressed not only at the polls, but equally important in the institutions of democracy it created.

FVR's Mistaken View of Constitutional Violation

While I was scanning the news, I came across a statement from former President Fidel V. Ramos claiming that the Catholic Bishops Conference of the Philippines (CBCP) violated the Constitution in issuing a call not to vote for candidates who support the controversial Reproductive Health (RH) Bill. According to Ramos, the CBCP's campaign violates the people's right to freedom of conscience and belief by imposing its view on them.

Conceivably, FVR was referring to freedom of religion or the free exercise clause under Article III, Section 5 of the Constitution, which prohibits the enactment of a law or any governmental act that prevents the free exercise of religion. An elementary principle in constitutional law, however, will show that Ramos's statement is incorrect.

The fundamental rights enumerated in Article III of the Constitution (Bill of Rights) can only be violated when State action or governmental conduct is involved. The Bill of Rights is meant as a check against exercise by the government of its immense powers; as a balance between individual liberty and governmental power. Thus, one will see that the enumeration of rights in Article III are directed against the enactment of laws, law enforcement functions, criminal prosecutions, imposition of penalties, etc., which are within the domain of governmental functions.

The CBCP's statement urging voters not to vote for candidates in favor of the RH Bill does not constitute action by the State. On the contrary, it should be viewed as an exercise by its members of their religious freedom and free speech rights, which are guaranteed in Article III. The very constitutional provision that FVR says the CBCP is violating in fact grants the latter and its members the right to adhere to a particular religious belief (about the claimed immorality of artificial birth control) under the free exercise clause and to express such belief under the free speech clause.

The CBCP, or any other religious group for that matter, has every right to campaign for or against a particular legislation, candidate or governmental action that it deems contrary to the tenets of its religion. The free exercise of religion clause under the Constitution guarantees this right.

Why Pacquiao Should Not Give In

Manny Pacquiao has proven himself on the ring many times already that a fight with Floyd Mayweather, Jr. - although it would certainly add more laurels to his cap, not to mention money to his already bulging pockets, if he were to win and there's a big chance that he just might - is not really something to crave for, especially so in the face of the harassment, denigration and character assassination he is now taking from the Mayweather camp.

Some people are wondering why Pacquiao would not want a miniscule amount of blood taken from him close to the scheduled fight on March 13 if he is not taking any steroids or other performance enhancing drugs. In fact this is the line being drumbeaten by Golden Boy Promotion's Oscar Dela Hoya in his blog. The easy answer is that Pacquiao need not give in to each and every demand by Mayweather, especially so if Pacquiao has complied with and passed with flying colors each and every testing requirement of the Nevada Athletic Commission in (NAC) determining if boxers are clean before being issued their licenses.

Nevertheless, despite his unquestioned record since turning pro - that is until Mayweather decided to blemish it with baseless accusations - Pacquiao is willing to submit to blood tests on three occasions, viz: in January when the supposed match will be announced, earlier than 30 days before the fight, and in the locker room immediately after the fight. As observed by one sports writer, what could not be detected by a blood test done immediately after the fight that a test done before it would reveal if indeed Pacquiao were using steroids? Mayweather's refusal to this condition, as a compromise to his unreasonable demand, would only show that his only intention is to harass and subject Pacquiao to humiliation.

It is true that urine tests alone cannot detect some performance enhancing drugs, such as human growth hormone (HGH) injections, but then the testing protocols of the US Anti-Doping Agency (USADA) being proposed by Mayweather are not the tests being administered for boxers by the NAC. Lest I be mistaken, the NAC also administers blood testing and Pacquiao has always submitted to such tests before in securing and renewing his license. If the NAC's testing protocols are being challenged as insufficient or unreliable in determining whether a boxer is clean, is the Mayweather camp then saying that a whole line of other boxers who have shone on the ring, Dela Hoya included, also have questionable successes?

There is no question that Manny Pacquiao has already achieved sterling success as a boxer. He is the reigning pound for pound boxer in the world, ranking number one in many boxing magazines, including the prestigious Ring Magazine; he has been featured several times in Time magazine, among them are when he was included among the top 100 persons of the year and when he was featured on the cover of its Asia edition. He is now considered as a boxing all-time-great by boxing's respectable commentators and analysts and is even being compared with the likes of boxing legend Muhammad Ali and Sugar Ray Leonard, among others.

Floyd Mayweather, Jr., on the other hand, has not had such recognition. It is true that he remains undefeated, but that only speaks of the selectiveness of his bouts. Unlike Pacquiao, Mayweather has been known to pick only fighters that he can take. And unlike Pacquiao, he fights dull matches and preys only on his opponents' unguarded moments. In other words he plays it safe. Pacquiao, on the other hand, has taken on seemingly tough fighters for his built, size and weight. He has ventured into the unimaginable by competing in matches that boxing analysts thought were ridiculous and lopsided against Pacquiao, only to find themselves proven devastatingly wrong as each and every fight turned out completely the opposite with Pacquiao demolishing his opponents. Unlike Mayweather, Pacquiao charges even when his opponent is on the guard and ready for him, prevailing in the end as a true testament to his mettle and skills.

So what has Pacquiao to prove more? Nothing. He has done boxing a great service. He has revived a dying sport, when fans have moved on to the more violent mixed martial arts genre. As the recognized and reigning best pound for pound fighter and the welterweight champion, it is not up to him to give in to unreasonable and unnecessary demands. If Mayweather really wants to face Pacquiao, he should do it in accordance with the prevailing rules of professional boxing. In fact, if there is anyone who should dictate terms, it is Pacquiao and not the other way around.

Just Lynch Ampatuan, Jr.

The National Press Club (NPC) has decried lawyer Sigfried Fortun's decision to defend Datu Unsay Mayor Andal Ampatuan, Jr., suspect on the Maguindanao massacre that claimed the lives of 57 people, including 30 journalists. It is even reportedly contemplating on declaring Fortun as a persona non grata and banning him from attending all media events.

While the Maguindanao massacre should be condemned in the strongest possible terms, we must not let our emotions get the better part of us. However strong the evidence may be against Ampatuan, Jr., no less than our Constitution presumes his innocence until evidence to the contrary is proven. Due process requires that he be given his day in court, accorded a fair trial and only after evidence for or against his innocence is presented that he may validly be judged either innocent or guilty.

In the midst of all these substantive and procedural safeguards, Ampatuan, Jr. is entitled to competent legal representation. Fortun is merely performing his legal duty as an officer of the court whose oath requires him to defend any person accused of a crime. Instead of being condemned, Fortun should even be lauded for helping make the judicial system work and go about its business of dispensing justice. Imagine if no one would represent Ampatuan, Jr. Given the seriousness of the charges against him, it is highly unlikely that the court will proceed without him being represented by a lawyer, especially so that he has preferred to be represented by one. This will definitely not be good as trial will be postponed indefintely and consequently delay the victims' relatives' - including the NPC's - plea for justice.

What alternatives do the NPC and those people who condemn Fortun for defending Ampatuan, Jr. have? If Fortun is taken out of the picture, most assuredly someone will take his position if the trial against Ampatuan, Jr. were to proceed. If no one will voluntarily represent Ampatuan, Jr., the court trying the case will be forced to appoint someone. Now, will the NPC also decry and declare as persona non grata the person who will be appointed as new defense counsel? How about the judge who will appoint the lawyer, will she also be condemned considering that she will be instrumental in giving Ampatuan, Jr. someone who will defend him?

Perhaps we should just lynch Ampatuan, Jr. and strike-off from our Constitution and statutes book due process protections and abolish our courts altogether. I am not saying this is what the NPC wants as well as those oppose to Fortun and lawyers defending undesirable people, but come to think of it this is precisely the implication of not wanting accused people to be given their day in court and accorded competent legal representation.

Were the court to deny Ampatuan, Jr. his right to legal representation and force him to defend himself, aside from violating his constitutional right to have a counsel of his own choice, the court would be prejudging his guilt already, for why would the court refuse to deny such representation if not dictated by the conviction that he is guilty of the crimes charged against him? This is not the kind of court we would like to dispense justice for us.

To be sure, there is someone out there crying how could Fortun, or any lawyer for that matter, defend a monster like Ampatuan, Jr? Some people may not buy it, but it is not for the lawyer to judge his or her client; that is a matter for the court to decide. Unless we want to go back to the age of trial by ordeal - where a person's guilt or innocence is decided in strange ways, such as being pronounced innocent if a person submerged in water does not drown or guilty if he does, or innocent if the accused's hands heal within certain days after suffering injuries from being dipped in boiling water or being pronounced guilty if the accused loses in a duel - we have to settle to the fact that we now have a judicial system that allocates responsibilities to different participants for the purpose of painstakingly ascertaining the facts and circumstances of a case to determine who is innocent or guilty.

A criminal defense lawyer, like Fortun, performs the essential function of ensuring that a person is not unjustly accused and that only after proof beyond reasonable doubt is established may an accused person be adjudged guilty and penalized. In essence he represents the criminal justice system, as much as the public prosecutor does.

If justice were to be dispensed, Andal Ampatuan, Jr. - like any other suspect and without regard to his guilt or innocence - deserves to be represented by a competent counsel of his own choice. To borrow the words of US President Obama, there is no incompatibility between our safety and ideals. We must not throw away the legal protections provided by the Constitution in our quest for justice, however reprehensible the charges against an accused person are.

Having said the foregoing, it is hoped that Atty. Fortun will stand only by what is just, ethical and proper in proceeding with the defense of his client. While he is expected to exercise utmost zeal and dedication in the defense of his client, his oath also dictates that he should not delay the cause of justice and defend his client using only fair, honest and legally permissible means.

The Evil of GMA's Congressional Bid

Post-presidential involvement in politics is not something new. We know, for example, that the late Coazon Aquino continued to involve herself in politics long after she ceased being president, as did Fidel Ramos and Joseph "Erap" Estrada. In the US, from which we copied our presidential system of government, many former US Presidents continued to be active in politics long after they have stepped down from office.

It is also not a new phenomenon for a former president to run for or be appointed to a public office after completing his term. John Quincy Adams, after serving as the 6th president of the US, was elected as a member of the US House of Representatives. Now contrary to what the critics say, this would not necessarily cheapen or demean the presidency. John Quincy Adams's incumbency as congressman for 17 years was served well in championing civil and political rights that eventually led to the removal of the prohibition on introducing legislations against slavery.

Of course GMA's candidacy for Congress is unprecedented in the Philippines. What leaves a bad taste in the mouth about it, as described by Sen. Chiz Escudero, has something to do less with demeaning the presidency than with GMA's nine years of presidency being characterized by corruption and abuse of power, and a nagging question about the legitimacy of her ascendancy to power. During her incumbency, GMA's admininstration has been beset by scandal after scandal, such as the $329-million NBN-ZTE broadband network deal, $14-million IMPSA power plant project, P728-million feritlizer fund scam, P321-million Jose Pidal accounts, and, not least of all, the "Hello Garci" scandal - our very own version of Watergate which should have brought down GMA's presidency as it did Nixon's. To this day, however, not one has been put behind bars despite these egregious scandals of brobdingnagian proportion.

The opposition have raised fears of GMA manuevering her way into power again in running for a congressional seat. The theories range from her gaining the House Speakership, directing a charter change toward a parliamentary government that would make her prime minister, to acquiring immunity from prosecution. But the message that should be stressed is the evil of electing someone whose governance has been tainted with corruption, official wrongdoing, scandals, abuses of power and electoral fraud.

To be sure, GMA being back at the helm is a distasteful proposition. Reprehensible even. But for now this is conjectural and may not happen at all. The opposition should come out strong and emphasize the evils that lurked under GMA's tenure in decrying her return to politics, instead of harping on conjectures about her return odyssey to power. While it is true that none of the charges against GMA have yet been proven - at least in a court of law - there is no denying, however, that these scandals and official malfeasances did take place. And they took place under her watch, which speaks volumes about her competence and effectiveness as a leader. Even worse, the public have yet to see the hand of the law reaching the guilty, while GMA thwarted, under the guise of executive privilege, every effort to bring to light the facts and circumstances surrounding these scandals.

The candidacy of GMA will ultimately be a referendum on her presidency. Her election as a Pampanga representative come May 2010 will put a stamp of approval on all that she represented under her nine years of incumbency as president - something every Pampangueño should seriously ponder before doing.