Agra's Disregard of Evidentiary Standards

DOJ Secretary Alberto Agra has found himself in the middle of a storm for dismissing the murder charges against two Ampatuan clan members in connection with the gruesome massacre of Mangudadatu supporters and journalists in Maguindanao. The besieged justice secretary reversed the preliminary investigation findings of his prosecutors, claiming there is not enough credible evidence to warrant the filing of murder charges against the two Ampatuans.

The prosecutors, however, who recommended the filing of the murder charges based their conclusion on the testimony of an unbiased eyewitness, as against the alibi foisted by the Ampatuans. Historically considered as a weak defense, the Ampatuans' alibi should have been left for consideration during the trial proper and not during the preliminary investigation, especially that there is an eyewitness to support the filing of charges.

It bears noting that during the preliminary investigation stage, what the investigating prosecutor needs to determine only is whether or not a crime has been committed, and if so whether or not the person being investigated is probably guilty thereof. "Probable cause" is the key phrase. As the name implies, the probability of guilt only is what needs to be determined, and not the certainty of guilt - a standard applied during the trial proper only.

There is no doubt that the massacre did occur. There is also evidence that the Ampatuans may have been involved, as testified to by the eyewitness who claims he knew first-hand of the Ampatuans' participation in the planning of the massacre. These are facts and circumstances which would engender a well-founded belief that a crime has been committed and that the Ampatuans are probably guilty of the crime charged. Under our rules of criminal procedure, this is sufficient for the prosecutor to indict the Ampatuans. Take note, the purpose of the investigation is not to find guilt but a cause for filing the charges. Accusation is not synonymous with guilt. The Ampatuans will still get their day in court to refute these charges, and that will be the time for them to scrutinize the truthfulness of the eyewitness testimony, question his motive, test the veracity of this statements or refute them with contradictory evidence, such as alibi.

It is therefore no wonder that even Agra's chief state prosecutor went public against his decision to drop the charges against the two Ampatuans. He clearly disregard the evidentiary requirement in preliminary investigation, by wrongly applying the much higher standard of proof beyond reasonable doubt that should only be made during the trial proper.

Dimensions of a Failed Election and What GMA Needs to Do

As the May 10 elections near the failure of elections anxiety grows even stronger. This fear acquires special significance because for the first time in Philippine history the elections will be automated - at least on a nationwide basis, since we already had a taste of computerized polls during the ARMM elections. In this coming elections, however, the stakes are high as all positions, from president down to the councilor of the smallest municipality, will be voted for.

Failure of elections is not something new in our electoral lexicon. Losing candidates have at various times in the past utilized this as a legal tool to annul the proclamation of their rivals. More often than not, however, this legal argument has been met with disapprobation from the Supreme Court. The High Court has sustained this claim only in the clearest cases of electoral frauds.

Section 6 of the Omnibus Election Code identifies the instances under which the Commission on Elections (Comelec) can declare a failure of elections, which the Supreme Court in Soliva v. Comelec, G.R. No. 141723 (April 20, 2001) has enumerated in the following manner:

Section 6 of the Omnibus Election Code contemplates three instances when the COMELEC may declare a failure of election and call for the holding of a special election. First, when the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous cases. Second, when the election in any polling place had been suspended before the hour fixed by law for the closing of the voting. And third, after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect.

In the context of automated polls, many fear failure of elections with computers breaking down or not transmitting election results. The glitches experienced in the recent absentee voting in Hong Kong have only served to heighten this fear. In Roque v. Comelec, however, the Supreme Court dismissed this fear in denying the petition to declare the automation illegal. The Supreme Court said the automation law provides manual voting as a contingency measure in the event computers break down. The problem with this, however, is that if manual voting is resorted to in case of computer glitches, elections in affected precincts may take unusually longer and pass the closing of voting, especially so that precincts are now clustered with registered voters numbering as many as 1,000 in a precinct. Many voters will end up not being able to cast their votes.

Another scenario is the ever-looming threat of electoral fraud. Opponents of automation claim the resurgence of Garci-type cheating, wherein Comelec insiders will rig the PCOS machines by configuring them to make the favored candidates win. Inquirer columnist Amando Doronilla, however, refuses to accept this possibility in his February 16 article Who Will be the Evil Genius? According to him, there is none among the current presidential candidates (except perhaps Gilbert Teodoro via Pres. Gloria Macapagal-Arroyo) who is in a position of authority to direct the manipulation by Comelec. Teodoro and Comelec chair Jose Melo, he says, would not do it. Doronilla argues that President Macapagal-Arroyo has clearly no need for this to further her congressional bid, considering her almost guaranteed victory among her town mates.

If elections fail - because of massive cheating or breakdown of voting machines or both - and the problem is not resolved before the term of office of the president and her constitutional successors ends on June 30, there would clearly be no one legally authorized to lead the country after this date. Since GMA would be the last person to hold the reins of power before the crisis begins, I would suppose she would stay at the helm in the mentime. Now, whether or not she will do so for good remains to be seen.

Although most GMA critics would conclude that she will take this opportunity to remain in power for good, I humbly believe otherwise. If GMA were to perpetuate herself in power she would certainly meet stiff opposition both domestically and internationally, not least of which is the US. With all the military exercises the US has been conducting in the Philippines and the millions of dollars it pours into them, the Philippines is still much within the radar of US global interests. With all its worries on terrorism, the need to check an ever expanding China, and an adventurous North Korea, the last thing the US needs is a failed or weakened Philippine state.

On the local front, a permanent GMA tenancy in Malacañang would elicit thunderous protests from the opposition and civil society groups. Coups are not farfetched. In short what will happen will be nothing short of a civil unrest; even worse, an uprising that could throw the whole country into a bloody revolution. This very gruesome scenario is something that will make Washington even more vigilant in preventing a Marcosian reprise by GMA. With all her faults, I don't think GMA is ready to take this dangerous path.

GMA can, however, do one last thing that will mark her legacy. She could remain in power - a sort of hold-over president - in the event of a failed election. But in doing so, she must assure the public that it will only be temporary until the elections are re-held and completed. By law, the Comelec is mandated to re-hold elections in the event of failure at the first instance. This would entail huge expense and effort, but this is the only way that chaos can be averted.

The alternative of her not staying and vacating office when no successor has been proclaimed and sworn would be more dangerous. Power grabbers from all stripes will try to outdo each other to succeed in power. There can be no illusion that this will happen peacefully. To be sure it will be a violent race to the top. On the other hand, if GMA were to hold-over, it will simply be a case of status quo. What will save the day is the assurance that she will give to the public that she will only be doing so to pave the way for a smooth transition of power.

Fair Elections Act Trumps Celebrities' Free Speech

The entertainment industry recently rose up in arms against the Comelec for making known its intention to strictly enforce a resolution implementing the Fair Elections Act (R.A. 9006), which requires celebrities to resign or take a leave of absence from their work during the campaign period if they campaign for or against a candidate in the May 2010 elections. Although the Comelec ruled to make the requirement optional, some quarters, like the PPCRV, still appear poise to have the law implemented.

It is well known that many movie and television personalities have endorsed or campaigned for candidates, especially those vying for national elective positions, by appearing in political ads or campaign sorties. The Comelec and proponents of the law argue that candidates who employ celebrities derive undue advantage over other candidates due to the influence these celebrities wield over their massive viewers and followers.

Celebrities, on the other hand, counter that the strict enforcement of the law violates their free speech rights and rights as citizens to support the candidates they like, not to mention their right to earn a living. There is also argument that the law unduly singles them out.

Section 6, paragraph 6.6. of the Fair Elections Act provides that "[a]ny mass media columnist, commentator, announcer, reporter, on-air correspondent or personality who is a candidate for any elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or political party shall be deemed resigned, if so required by their employer, or shall take a leave of absence from his/her work as such during the campaign period . . ."

The above-quoted provision clearly requires the enumerated persons, which include movie and TV personalities, to either resign or take a leave of absence from work during the campaign period if they are (1) candidates (2) campaign volunteers (3) employed or retained in any capacity by any candidate or political parties, including coalitions and party-list groups.

The State's interest in allowing equal opportunities for candidates in reaching out to voters by leveling the playing field - achieved through regulation of the time, place and manner of communicating political or campaign messages - has long been recognized since National Press Club v. Comelec. In fact, the Supreme Court has justified legislations of this nature under the Constitution's social justice provisions guaranteeing equal access to opportunities for public service to everyone.

While there is no question on the rule prohibiting mass media personalities, such as actors and newscasters, who are candidates, from working as such during the campaign period, a similar restriction on others who are not candidates but merely supporters or workers of candidates is unreasonable. A celebrity candidate who continues to do his or her high profile work clearly gives undue advantage over other candidates who are not similarly situated; the constant exposure allows him or her to become well acquainted with voters. Not only that, it makes the regulatory limits on broadcast time and print space useless as against these candidates. The same is true of non-candidate celebrities and other media personalities who actively campaign for or against a candidate during their shows.

Requiring non-candidate celebrities or media personalities to resign or abstain from work under pain of penal sanctions for campaigning for or against a candidate, other than through their movie or television programs, invades the realm of constitutionally protected speech. The strictures of Section 6, par. 6.6. of the Fair Elections Act, as implemented by Sec. 36 of Comelec Resolution 8758, suffers from overbreath for stifling more speech than is necessary. When a celebrity endorses a candidate in a legitimate political ad or performs any act to generate support for such candidate, he or she engages in political speech protected by the Constitution. The law in question, however, in effect penalizes that speech by barring the celebrity from engaging in his or her means of livelihood, even though for a limited period only. Failure to resign or take a leave of absence from work would constitute an election offense punishable by fine and imprisonment of up to six years.

The law does not only regulate the time, place and manner of the speech involved, but targets the content itself. It in effect restricts political speech by celebrities because it forces them to choose between engaging in political speech or their means of livelihood. To pass constitutional muster, the law must be justified by a compelling or overriding government purpose and the means employed must be necessary to achieve that purpose. As previously mentioned, it is now settled that the State has vital interest in having fair or level playing field among candidates in reaching out to voters, but the manner the questioned law seeks to achieve its objective does not appear to be necessary for it is not the least restrictive means of doing it.

The equalization of political speech and opportunities for reaching out to voters is no longer served here because the celebrity cannot be said to be still furthering a candidate's campaign by simply engaging in his or her normal work. True, the celebrity, by expressing support for a candidate, would henceforth be identified with that candidate, but identification or association cannot be justified as furtherance of a candidate's campaign anymore than a candidate choosing a certain network or newspaper for broadcast or publication of his or her political ads constitutes furtherance by that network or newspaper of the candidate's campaign.

What makes the questioned provision even more unreasonable is the fact that it applies as well to celebrities and media personalities who work for a candidate in capacities that do not necessarily expose them to the public, such as being a political or legal adviser, a consultant or a speech writer, since the law covers those who work in any capacity. The law is also vague as to what the term "campaign volunteer" means. If a celebrity cooks for the staff of a candidate or hosts meetings in his mansion, could he be considered a campaign volunteer? If so, how will that possibly obscure role, although performed by a well-known personality, give a candidate undue advantage over others, as does the adviser and consultant?

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.