Election Cases: Waste of Time and Money

"It will only be a waste of time and money," observes Pampanga Gov. Ed Panlilio's election lawyer Romulo Macalintal, when asked for his reaction to the Supreme Court's recent ruling allowing the recount of votes cast during the Pampanga gubernatorial elections in 2007. Former Lubao, Pampanga Mayor Lilia Pineda filed an election protest against Governor Panlilio by claiming that the erstwhile priest and his followers committed various electoral frauds.

This statement, coming no less from a veteran election lawyer, speaks a mouthful about the state of election cases in our country. It pains me to say this, but election cases in general do nothing except line the pockets of election lawyers, for in most cases the winners end up with empty victories, no to mention empty purses, because the favorable verdicts come in only after they have become moot. With the 2010 elections just less than a year to go, the election protest against Governor Panlilio is yet another example of an exercise in futility. The recounting of votes, while every protestant's dream, takes the longest and is the most contentious and tedious process in an election protest. The protestee's lawyer interposes every imaginable objection from the custody and handling of the ballot boxes to be re-opened to the reading and inclusion of ballots prejudicial to his client. Take it from Macalintal, who must've handled thousands of election cases (both high-profile and low-key) already, when he said that the recount against Panlilio is futile at this point in time.

With the slew of cases being filed every three years, the Philippines probably has the richest jurisprudence when it comes to election cases. A lot of defeated candidates with money to spare, perhaps excesses from the huge campaign war chests, cry they have been cheated after every elections even when the margins are huge. Many factors can be attributed to this phenomenon - which a visiting Canadian lawyer I once met during a legal forum found unbelieveable because he has never heard of election cases in his country. For one, our electoral system is prone to cheating and election officials are bribe-susceptible. Not only can election officials in charge of counting and canvassing of votes be bribed to guarantee victory for one candidate, but election judges to assure favorable judgments in election cases. Another equally strong, if not more powerful, reason is the insatiable quest for power, with all its illegitimate perquisites that promise luxury and indulgence to the holder. Politicians with such devious motivation (and there are lots of them unfortunately!) will have no qualms bribing their way to victory, both at the polls and courtroom.

If it's any consolation, law students and lawyers won't find a shortage of jurisprudence illuminating the election code and its companion laws that makes for interesting studies and provides guidance to our courts in disposing election cases before them. At least we would not be groping in the dark as US courts did in the wake of the 2000 US presidential elections between George W. Bush and Al Gore, when confronted with thin jurisprudence in trying to make sense of their varied election laws. But then again the dispatch with which these courts came out with a decision in the Bush v. Gore case (decided in less than a month) and the recently concluded legal contest between Norm Coleman and Al Franken for a Minnesota US Senate seat (completed in eight months) would make us weep.

The exceedingly slow pace at which election cases are resolved in the Philippines has turned election law litigation into a big joke. Although election cases are given preferences before regular courts and the election code directs their resolutions with dispatch, our legal system - with its loophole-ridden appeals process - makes it possible for parties on the losing end to prolong the litigation with the end goal of getting them through their terms before a decision is finally handed. More often than not election cases are resolved after the contested terms have expired or elections for the next terms have passed.

In my home town of Mabalacat, Pampanga, for example, when in 2001 the election protest against Mayor Marino "Boking" Morales was resolved declaring his long-time rival Anthony Dee the winner, Morales already completed his term of office. Then again in the 2007 case of Rivera III, et al. v. Comelec, et al., G.R. No. 167591 (May 9, 2007) - originally a petition to cancel the certificate of candidacy of Morales where I was one of the petitioners and counsels - the Supreme Court declared the ineligibility of Morales to run for Mayor in the 2004 elections. But this decision came only less than two months before the term for which he was found ineligible expired. There are tons of other cases bearing similar backdrops which i'm sure most of you can relate to that we need not cite them here for convenience.

Despite this sad reality, however, the Supreme Court, which is empowered by the Constitution to not only give meaning to the law but to promulgate rules of procedure in matters of litigation, has done nothing to put a stop to this abhorrence. Worse, it even sustains it by, for example, allowing wrongdoers to profit from their misdeeds by allowing "elected" candidates found to have lost the elections to keep their salaries, however miniscule they are compared to the illegitimate perquisites of their office, under the de facto officer doctrine. Would it not be more just that a usurper of public office be penalized by returning all the salaries he drew during his unlawful tenancy? The Supreme Court has also the penchant for entertaining petitions that do not establish new law and are clearly covered by established jurisprudence. Instead of declining jurisdiction and deferring to the Comelec or lower courts' rulings in cases squarely adhering to established jurisprudence, it proceeds to hear and publish full decisions in cases that could otherwise be disposed of by minute resolutions, thus adding to the delay in disposition of election cases.

Election litigations should not only be a lawyer's or politician's concern, but of every voter because it is an extension of the electoral process of choosing our leaders. They are designed - supposedly - to protect the voters' choice at the polls and ensure that those who court our votes are only those who are legally qualified to do so. But when they drag on indefinitely and are decided only when they can no longer serve their purpose or worse, when they are manipulated to the advantage of the unworthy, they subvert, and become an affront to, our sovereign will.

Ignorant and Ignoble

"While the Court has taken an increasingly liberal approach to the rule of Locus Standi, it is not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but their cerebral deficit.” These are the harsh words of Chief Justice Reynato Puno in dismissing the consolidated petitions - filed by lawyer Oliver Lozano and his daughter Evangeline Lozano, who is also a lawyer, and one Louis "Barok" Biraogo - that seek to nullify HR 1109.

To receive such a strong rebuke, from the chief justice no less coupled by the near unanimous approval of a court of 13, is indicative not only of the brimming legal errors attending the Lozano petition, but also of something even more despicable. To be sure, the Lozano petition is not the first to land on the doorsteps of the High Court to be thrown out for lack of a justiciable controversy. The petition recently filed by the youthful Bohol Congressman Adam Relson Jala, asking a ruling on joint voting by Congress on Charter change, easily comes to mind. That petition was dismissed by the Supreme Court in a minute resolution for prematurity also.

And there are several other cases dismissed on similar grounds, or, if not dismissed, the issues of justiciable controversy and standing are contentious, which goes to show that they are not really easily grasped concepts even among some legal practitioners specializing in constitutional law litigations.

So what made the Supreme Court, Chief Justice Puno in particular, revile at the Lozanos by indirectly calling them ignorant, ignoble and suffering from cerebral deficit? What is it that previous suitors of the court, who were equally unlearned in the fine art of engaging its attention, did not do or have to incur the court's displeasure? Is it the personality of Oliver Lozano himself - a man who has long been associated with the Marcoses - that struck a discordant note in the mind of the chief? Is it because it was Oliver Lozano, the man who has filed four defective impeachment complaints in succession against President Macapagal-Arroyo, with no conceivable purpose but to get ahead of the flock in unseating an unpopular president to gain media mileage or for defeating legally sound impeachment complaints by playing around the one-year bar on impeachment?

Chief Justice Puno did not merely content himself in stating the usual, although seemingly arcane, legal principles that are too often involved in constitutional law litigations in disposing the Lozano petition. He went as far as question the fitness of father-and-daughter Lozanos as members of the legal profession. He branded them as ignorant, presumably of the law - which could be a ground for administrative discipline for lawyers and judges alike - and ignoble, which refers to baseness of character that would make one unfit as a lawyer. Now I am not suggesting that lawyers are angels, but if one is found wanting in the qualities required by the rules of professional responsibility his or her license may be taken away.

Perhaps Chief Justice Puno was also aggravated by the possibility that Lozano's petition could be trying to add a stamp of validity to the much-hated HR 1109 by forcing the Supreme Court to indirectly declare it legal, given that the Lower House has yet to encroach on the powers of the Senate. Indeed, the chief has said in his ponencia, maybe grudgingly, that no "usurpation of power or gross abuse of discretion has yet taken place.” This somehow undercuts the public outcry against the congressmen who have been called various distasteful names, chiefly flouters of the Constitution, in approving HR 1109. With Lozano's petition out and the High Court's ruling, these congressmen can now tell their detractors with even greater defiance that they did nothing illegal. What the Lozano petition purported to accomplish - to declare HR 1109 illegal - in effect made the Supreme Court give a stamp of validity to HR 1109. The quintessential Lozano at work!

TO VOTE JOINTLY, OR SEPARATELY, THAT IS THE QUESTION

Congressmen who have been assiduously pushing for Charter change (Cha-cha) via Congress acting as a Constituent Assembly have firmly set their sights on forcing a joint voting by all members of Congress, thus removing the distinction between senators and representatives. This intention, which has long been made public, has finally been formalized by the majority in the House of Representatives with the haphazard adoption of House Resolution 1109 last Tuesday.

But the trigger, if you will, cannot as yet be pulled since the bullet that will hit the target is still unavailable. The mere passage of HR 1109, although feared by many as a prelude to the railroading of amendments to the Constitution, is not enough to achieve the House's objective of creating a justiciable controversy that will bring the Supreme Court in for the purpose of ruling on the methodology of voting. As everyone who understands how our system of government functions already knows, the House alone cannot convene Congress in joint session because the Senate, which is equally a part of Congress, must concur.

The issue on joint or separate voting can only arise when the Senate agrees to sit with the House in joint session. Unfortunately for the House, the majority and minority blocs in the Senate have already signified their unanimity to oppose the House's efforts; in fact, even before HR 1109 there is already that disinterest to join by the Senate in apparent awareness of the House's dark scheme to outvote the senators in a joint session. But time is running out for the ruling party since elections are just around the corner so, despite the impediments and the expected firestorm of public outrage, the House proceeded with the plan and adopted HR 1109 in the hope that someone, like lawyer Oliver Lozano, will file a petition before the Supreme Court to thresh out the voting issue. But this petition is expected to fail for prematurity.

A reading of HR 1109, particularly its whereas clauses, clearly shows that voting jointly or seprately is what the majority in the House want to be settled. And the majority's position, of course, is that voting should be done jointly, which they justify by saying that the non-inclusion in Article XVII, Section 1 of the 1987 Constitution of the phrases "in joint session assembled" and "the Senate and the House of Representatives voting separately," as found in the 1935 Constitution, conveys the intention that voting on the amendments should now be undertaken jointly. More on this in subsequent postings.

So why the obsession on this mode of voting? The number of representatives is clearly superior to that of the senators. If the numbers are correct, there are reported 275 representatives and 23 senators. Lumping them together under one roof we have a total of 298 legislators. Three-fourths vote is necessary to approve any amendment, so if the mode of voting be joint then all that is needed is 224. Since there are 275 representatives they can very well outvote all 23 senators, assuming only 51 representatives do not follow suit. Fr. Joaquin Bernas calls this drowning senators in a sea of House votes.

But what assurance does the House have in getting a favorable decision from the Supreme Court, if and when it is finally able to bring the issue to the Court? The administration hopes to fill all the vacancies in the High Court, that will be created with the retirement of a number of justices before President Arroyo's term expires, with appointees who will render a favorable decision. With the retirement of Justices Dante Tigna and Alicia Austria-Martinez, allegations are already flying high that Malacañang's unseen hand is working for the appointment of lawyer Rodolfo Robles, who is said to have close ties with the Macapagals. Another aspirant who is seen as a Malacañang favorite is Solicitor General Agnes Devanadera who, like Robles, favors joint voting.

After having said all these, House Speaker Prospero Nograles and company will still have to devise more creative ways on how to properly bring the issue of joint or separate voting before the Supreme Court. With opposition from a Senate that is afraid to ride against the storm of public criticism on Cha-cha, the vehicle - a joint session of both Houses under the nomenclature Constituent Assembly - is still elusive. We will see how Nograles convinces his colleagues in the Senate when he meets with them about HR 1109.