Thursday, June 16, 2016

Notes on the Comelec Omnibus Rules on Campaign Finance or Why do we love to make rules we can't follow?

When Heaven Torres, my partner in the IT firm Aceron and Torres Automated Circuits, Inc., (ATAC), and I first read the Comelec's Omnibus Rules on Campaign Finance which was promulgated in October 2015,  we knew it would be controversial. Section 2 Rule 10 of the same rules declared in clear and unequivocal terms that the filing of the Statement of Contributions and Expenses (SOCE) thirty (30) days from election day (May 19, 2016) was non-extendible. This would be a big change from the past elections in which extensions were granted. 

Further, amendments were not allowed, and filings which contained errors would be considered as not filed. Already, I thought the Comelec was even stricter than the BIR, which allowed amendments within three (3) years from filing of a tax return or before a BIR audit takes place whichever came first. But the Comelec in promulgating these rules appeared to be trying to exercise its plenary powers in a grand manner (shades of Malcolm fans in there probably), and cared not for precedents of filings from other agencies like the BIR and the SEC, such that it ignored the possibility of anyone missing the deadline or filing an erroneous SOCE.

This became the premise of our software project,  Fearless Election Finance Software (EFS) that we designed (actually Heaven did the design by longhand and passed  it on to a programmer) -- to help candidates hurdle the rigid requirements of the rules and submit their reports within the deadline. To market the software, we embarked on a seminar roadshow in Luzon and Cebu,  and we realized that the rules had more serious problems than just the deadline and its prohibition on amendments.

First, the spending limits were too low. A candidate was only allowed to spend three pesos per registered voter. Yet, the average town had about 15,000 voters, so a Mayor, for example, could only spend Php 45,000 for the entire campaign. Anyone who would dare follow it would never win. For those without political parties, the limit was five pesos, and political parties had an additional five pesos. Still, the amount could hardly even cover the cost of gasoline or cellphone load for the entire campaign. 

Second, some provisions were impossible to enforce. Section  4 of Rule 6 provided that all campaign materials even those donated by voters should be authorized by the candidiate and would be counted against the expenditure limit. This was the offshoot from Ejercito vs Comelec GR No. 212398 (http://www.chanrobles.com/cralaw/2014novemberdecisions.php?id=977) in which a campaign donor of the Laguna governor   bought   airtime from a TV network amounting to more than five times the  expenditure  limit, thereby causing the ouster of Ejercito from the seat of the Province of Laguna. While clearly media expenditure was severely limited by the rules, other campaign propaganda like billboards, stickers, posters, and give-aways would be impossible to monitor not just for the candidate but also for the Comelec. How could they be counted against the expenditure limit then? Further, with the advent of social media (which carried the Duterte campaign), how could the Comelec quantify the money being spent on status messages, memes, tweets, and comments? And we're not even talking about illegal expenditures, such as money used to buy votes. The Comelec hardly spent time monitoring and catching vote-buying, which was a more serious and prevalent election offense, why would it spend time counting election expenses? Indeed, the Comelec was setting itself up for failure by raising the bar so high on this aspect of campaign finance.

Third, a lot of candidates did not care. They would do their reports the old way, cram, falsify, and challenge the Comelec's resolve to enforce its rules. While the Ejercito case set an unusual precedent of unseating an incumbent governor for violation of a Comelec rule, nothing else came out of the 785 cases on election finance pending with the Comelec from the 2013 elections. We wrote the Campaign Finance Office to clarify some matters on rules and we never got an answer, because none of its lawyers were available. It seemed, therefore, that Comelec's posturing on this grand rules to govern campaign finance would be melted by the realities of governance, the tyranny of the urgent and the overbearing demands of duty and the scarcity of time and resources to fulfill these duties. No wonder old time politicians would be the least bothered by the rules.

Thus, when the news broke out that the Liberal Party (LP), the party of the outgoing President, missed the deadline and asked for an extension, we were aghast at the incompetence of the LP leadership,  which jeopardized all its winning candidates as the same rules provided that the failure of the winning candidate or the party which nominated the winning candidate would result in the candidate not being allowed to assume office. The implications were disastrous: the Vice-President, five senators, hundreds of congressmen and local officials were LP candidates. If the Comelec rule would be followed, they would be barred from assuming office; and following the Maquiling ruling, their runner-ups would assume their offices. 

Yet, Romulo Makalintal and Sixto Brilliantes, two of the leading election lawyers in the country who should take credit (or be blamed) for the quality of elected officials we have, dismissed this view on the ground that the rules of the Comelec were unconstitutional. I told my friends that we got to hand it to these guys for playing with the hand dealt to their clients. To say it in the vernacular, "kung baga sa pusoy, buhaw na akala mo naka full house pa." (If this were poker, they have bad cards, but they're playing it as if they have full houses.) If the rules didn't work for their clients, the Constitution did. Well, these statements should have been uttered in October when the rules came out. The two gentlemen were just using the Constitution as an afterthought. 

But today, the Comelec blinked. Voting 3-4, the Comelec extended the deadline to June 30, 2016 and disregarded Section 2 of Rule 10 of their own Omnibus Rules on Campaign Finance, which stated, 

"Section 2. When and how to file the SOCE and its supporting documents. - Not later than thirty (30) days after the day of election, or by 08 June 2016, Wednesday, all candidates and parties who participated in the 09 May 2016 National and Local Elections, regardless of whether they won or lost, must file their Statements of Contributions and Expenditures (SOCEs) and the relevant Schedules and supporting documents. Filing of these campaign finance disclosure reports and statements must be done in person, whether by the candidates and/or party treasurers personally, or through their duly authorized representatives, before the offices listed in Section 3 of this Rules. Duly authorized representatives of candidates and parties must present a written authorization from their principals, using Form SPA-C in the case of candidates and Form SPA-P in the case of parties, before they can submit the campaign finance disclosure statements and reports of their principals. Submissions via registered mail, courier or messenger services shall not be accepted.

"The 08 June 2016 deadline shall be final and non-extendible. Submissions beyond this period shall not be accepted. COMELEC Resolutions Nos. 9849 and 9873, Minute Resolutions Nos. 13-0775 and 13-0823 are hereby repealed, insofar as they allowed the belated submission, amendmentand/or correction of campaign finance disclosure statements and reports and the imposition of late penalties for the 2013 National and Local Elections. [n]"

The Commissioners who voted to grant the extension might as well have eaten the paper on which their rules were printed. The question is which other provisions of this rule could be changed? The no amendment rule? The spending limit rule? They should change them now before another case lands on their desk that would force them to amend the rules again. 

I think it was President-elect Duterte who declared that the laws in this country are mere suggestions. He might as well be talking about the Comelec rules which governed the elections that he won. This might not be the first time that the Comelec reversed itself, especially in the enforcement of its own rules. And they could not be faulted or be singled out as the only agency which did  (think  of the Supreme Court and its flip-flopping in the cityhood cases) but the other question is why did they have to make their rules so hard in the first place? They only made it difficult for those who complied and submitted on time, and made it easy for those who failed, crammed, and challenged the Comelec's resolve to enforce its own rules. It's like being up early for the plane only to find out that some children of god who partied all night would be late and make everyone wait, the pilot gladly obliging a reprieve. Somehow one imagines those who benefitted from Comelec's reversal of their own rules are mocking everyone concerned about this fiasco of the SOCE,  and are saying to themselves, "What are we in power for?".

The Commissioners who voted for the extension claimed that they did not want their rules to have absurd consequences such that those voted in office would not be able to assume their functions. And I gave a deep bass guffaw as I heard the quote from the radio. Tell that to ER Ejercito,  I said. And I decided that all is well in this corrupt republic.

1 comment:

Heaven Torres said...

I hope we and our children remember their names: (1) Andres D. Bautiosta, (2) Christian Robert S. Lim, (3) Al A. ParreƱo, (4) Luie Tito F. Guia , (5) Arthur D. Lim, (6) Ma. Rowena Amelia V. Guanzon, 7) Sheriff M. Abas.