The marginalized overseas absentee non-voters

Telltale Signs
By Rodel Rodis

“Half a loaf is better than no loaf at all” was the argument presented to us in January of 2003 as we were furiously lobbying the Philippine Congress to pass the Overseas Absentee Voting (OAV) bill. Makati Rep. “Teddy Boy” Locsin had enough votes to guarantee the defeat of the OAV but expressed willingness to support itf it included what I then called the “poison pill” provision. We were asked to accept his offer of compromise.

The “poison pill” provision required overseas Filipinos who are categorized as immigrants and permanent residents (numbering close to 4 million) to execute an affidavit declaring that they shall resume actual, physical, permanent residence in the Philippines not later than 3 years from approval of their applications for registration under the OAV law or face perpetual exclusion from the voters’ rolls and possible imprisonment for up to a year.

Rep. Locsin contended that failure to include this provision would render the OAV bill unconstitutional as it would be in violation of the “residence” requirement in the 1987 Philippine Constitution (Section 1 Article V) which requires that the voter “shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election.”

We argued that Section 2 of Article V of the Constitution gave Congress the explicit power to provide “a system for absentee voting by qualified Filipinos abroad” that overrides the residence requirement of Section 1.

If the Constitution provided Congress with the power to provide a mechanism for excusing the “residence” requirement of Article 1 by the simple execution of an affidavit to return within 3 years, then Congress has the power to set the time period for the affidavit to return within 10 years or 20 years or to set none at all. There was no restriction provided by the Constitution on whatever system of absentee voting abroad that Congress would create.

In the end, however, the “half a loaf” compromisers in our lobby group prevailed and the Overseas Absentee Voting bill, with the “poison pill” provision, passed on February 13, 2003.

In 2004, the Department of Foreign Affairs (DFA) spent P112.71 million pesos ($2.68M) to set up 89 registration centers across the globe along with 44 posts in 154 areas designated for field overseas voter registration.

Out of an estimated pool of 8 million overseas Filipinos in 2004, only 364,187 registered to vote, out of which barely 233,092 went on to actually vote.
The low turn-out prompted the Philippine Senate to conduct an investigation. On December 13, 2004, the Senate Committee chaired by Sen. Rodolfo Biazon determined that six factors caused the dismal showing. Included in the list was “immigrant disqualification”.

Not mentioned in the Biazon list of those unable to vote in the 2004 elections were dual citizens who were not allowed to register to vote as a result of a COMELEC ruling on September 23, 2003 which declared that dual citizens have no right to vote in such elections owing to their lack of the one-year residence requirement prescribed by the Constitution.

On April 1, 2004, Loida Nicolas-Lewis and 10 other dual citizens filed suit of mandamus in the Philippine Supreme Court to compel the COMELEC to allow them to register and vote in the May 2004 presidential elections. Although the issue was moot and academic by then, the Supreme Court nonetheless decided to consider it because of the “transcendental” issue involved: the propriety of allowing “duals” to participate and vote as absentee voters in future elections.

On August 4, 2006, in a decision penned by Chief Justice Artemio Panganiban, a unanimous Supreme Court ruled that dual citizens “must be entitled to exercise the right of suffrage and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the framers of the Constitution to mandate Congress to establish a system for absentee voting.”

Chief Justice Panganiban added: “As may be noted, there is no provision in the dual citizenship law – R.A. 9225 – requiring “duals” to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote. On the contrary, R.A. 9225, in implicit acknowledgment that “duals” are most likely non-residents, grants under its Section 5(1) the same right of suffrage as that granted an absentee voter under R.A. 9189.”

In fact, the Supreme Court went further and ruled that even the foreign-born children of those “duals” who reacquired their Philippine citizenship before the children turn 18 are entitled to Philippine citizenship and the right to vote in Philippine elections even if they had never ever set foot in the Philippines.

“Now then, if the next generation of “duals” may nonetheless avail themselves the right to enjoy full civil and political rights under Section 5 of the Act, then there is neither no rhyme nor reason why the petitioners and other present day “duals” …be denied the right of suffrage as an overseas absentee voter,” the court noted.

There is certainly also “no rhyme nor reason” why permanent residents abroad, who spent most of their lives in the Philippines and who carry only Philippine passports, should have less rights to enjoy full civil and political rights as Philippine citizens than foreign-born dual citizens who have never set foot on Philippine soil. As the Supreme Court noted about duals, “Congress could not have plausibly intended such absurd situation.”

When Rep. Locsin met with the Filipino community at the Philippine Consulate in San Francisco in November of 2008, he asked why there was such a low turn-out of registered voters among overseas Filipinos. I told him point-blank it was all thanks to him. I blamed his “poison pill” provision for discouraging so many otherwise eligible overseas Filipinos from registering to vote.

Amazingly, Rep. Locsin admitted that in light of the Supreme Court decision in Nicolas-Lewis vs. Comelec, it was foolish to deny permanent residents abroad the right to vote in Philippine elections. He publicly promised that he would work to amend the law to remove the covenant to return in three years provision in the law. Unfortunately, term limits barred Rep. Locsin from running for re-election to the Batasan so that he could work to remove the onerous provision he authored.

On December 1, 2010, Akbayan Party-list Rep. Walden Bello delivered a speech in the Batasan supporting his sponsorship of House Bill 3201 amending the Overseas Voting Act of 2003. He explained that in the May 2010 elections, only 589,830 overseas Filipinos registered to vote, meaning “that more than 90% of Filipino citizens abroad were unable to participate in the election of our nation’s leaders. Our kababayans abroad were unable to exercise their right to select the decision-makers who will determine their welfare and the lives and livelihood of the families they left behind.”

“The inaccessibility of elections, their inability to exercise this intrinsic democratic right to vote is the height of political marginalization,” Bello added.

At the top of the list of “fundamental corrective legislative measures in the OAV”, according to Bello, is the “deletion of the provision that requires overseas Filipinos, numbering close to 4 million, who are categorized as immigrants and permanent residents to execute an affidavit declaring that they shall resume actual, physical permanent residence in the Philippines not later than 3 years from approval of their applications for registration under the OAV law.”

Finally, a full loaf, I thought. I eagerly sought to read House Bill 3201. The “Explanatory Note” at the preface of the bill sounded promising as it declared the intention of the bill to “delete” the offensive affidavit to return provision. I then read the bill and read it again and again. I just could not believe my eyes. The affidavit provision is intact in this bill! House Bill 3201 does not contain any provision deleting the affidavit requirement for permanent residents or immigrants abroad.It was so disappointing.

In his December 2010 HB 3201 sponsorship speech, Rep. Bello said: “As representatives of the people, it is our duty to seek out our constituents and ensure their democratic right to vote. It is our duty to expand democratic space for the people at the margins. By fulfilling this duty, we are making a big step towards the improvement of Philippine democracy.”

Unfortunately, more than 8 years later, the OAV law is still half a loaf and the marginalized non-voters then are still marginalized now.

(There will be a Batasan hearing on the amendments to the OAV law on Monday, Sept. 26, at 9:00 AM. Send comments to Rodel50@aol.com or mail them to the Law Offices of Rodel Rodis at 2429 Ocean Avenue, San Francisco, CA 4127 or call             415.334.7800      ).

NBN again?

View from Malcolm

By Atty. Harry Roque Jr.
Manila Standard Today

When then-candidate Noynoy Aquino was courting the electorate, he vowed to annul the anomalous contracts of Arroyo and to hold her and her minions liable for their deeds. Primary of these sins was the scandal about the national broadband network contract with ZTE, which brought a little-known “Jun” Lozada into the limelight. It was Lozada’s foiled abduction and his contribution to modern lingo of “tongpats”, a moniker for pay-offs, that are best remembered of this scandal. Add to this the phrase “moderate your greed’ and what you have is a classic case study on how the past administration raided the public coffers for their purely private interests. The NBN-ZTE scandal, together with election fraud arising from the “Hello Garci” controversy, would also be mainstays in three impeachment complaints which I filed on behalf of civil society against then-President Gloria Macapagal-Arroyo. Two of these complaints were to be endorsed by then-Rep. and now President Aquino.

But what a difference a year and a half could make. Now that PNoy has been in power, not only has he failed to file even a single case in court against Arroyo. He also now appears to have “legitimized” some of these anomalous contracts, notably the national broadband network scandal. While he affixed his signature in the past on two impeachment complaints, alleging that Arroyo was liable to be impeached for her complacency in approving the NBN-ZTE contract despite her knowledge of bribery that attended the approval of the project, PNoy today is resurrecting the same dirty project and adopting it as his own.

The justification is that unlike Arroyo, President Aquino will not allow an overprice of the project to enable the project proponent to make pay-offs to government officials. This presupposes that the only objection against the NBN-ZTE is the mater of the “tongpats”. Nothing can be farther from the truth!

What PNoy has again completely forgotten, in addition to the fact that we had more than ample evidence to prove election fraud in the three impeachment complaints sans the self-serving and hearsay declarations of Zaldy Ampatuan, is that the overprice of the NBN-ZTE project was only one reason why it was infirmed. There were other equally important infirmities of the contract, primary of which is that observed by CCM’s co-convenor, the late Josie Lichauco, herself a former Secretary of the DOTC.

Lichauco testified in the Senate that our telecoms law and the e-commerce act prohibit government from competing with the private sector in e-commerce infrastructure projects. Furthermore, as observed by the UP School of Economics, the establishment of a national broadband network was by itself not feasible, since government will simply not be in a position to catch up with developments in the IT sector. It even remarked that by the time the network is set-up, the technology availed of would already be obsolete. Hence, while the overprice made the controversy colorful—especially since there were whistleblowers, Jun Lozada and Joey de Venecia, the original objections to the project revolved around its legality and its feasibility. How dare now this Secretary Mario Montejo resurrect a patently illegal project? The bigger question is: How could PNoy have forgotten so soon?

Part of the problem is Mr. Aquino’s reliance on either recycled figures from the Arroyo administration or his appointment of people like Montejo who did not take a stand against evil in the past dispensation. Not having risked life and limbs against an evil regime, it is indeed very easy for the likes of Montejo to literally forget the past.

***

I was in the Supreme Court Tuesday for the oral arguments in the case to retrain the reclamation for an expanded jetty port in Caticlan. At the end of the oral arguments, I was conferring with Solicitor -General Jose Anselmo Cadiz when he received a telephone call confirming if the Court had in fact restrained the process of choosing officers-in-charge for the Autonomous Region in Muslim Mindanao. While the SolGen himself had no comment on the now-confirmed temporary restraining order, PNoy’s miscommunication agent said a mouthful (again) against the Court.

While I have been critical of the Arroyo-appointed appointed Corona court, particularly on the issue of the legality of the appointment of Chief Justice Renato Corona, I think the administration cannot blame the composition of the Court for all of its legal setbacks. Even non-lawyers should know that while the Court has not ruled on the legality of the postponement of the ARMM elections, the Executive should at the very least, show courtesy to a co-equal branch and not proceed as if it had already won in the unresolved case. And certainly, proceeding with the process of choosing OIC’s in the ARMM assumes that a decision in Malacañang’s favor is already in the bag.

Apparently, the miscommunication agents in Malacañang and the small-time politico in the Department of the Interior and Local Government have no appreciation that those who took a stand against an Arroyo-dominated Judiciary did so because of the conviction that the Judiciary, as the guardian of the Constitution, should be truly independent and free from partisan politics. But apparently, by conducting themselves in a manner as if they are privy to how the Court will decide in an unresolved case, PNoy’s minions are now proving that they are no different from PGMA’s cronies. This is truly sad.

http://www.manilastandardtoday.com/insideOpinion.htm?f=2011/september/15/harryroque.isx&d=2011/september/15

GMA corruption weakened RP Spratlys policy —WikiLeaks

By Michaela P. del Callar
The Daily Tribune

The United States government had cited corruption as a key factor behind the Philippines’ weak position in the disputed Spratly Islands in the South China Sea during the Arroyo administration.

An Aug. 1, 2008 confidential US Em-bassy report released by online whistle-blower WikiLeaks took note of allegations that the Arroyo government had agreed to a joint maritime seismic undertaking (JMSU) deal with China in exchange for bribe-tainted loans.

The inclusion of Reed Bank and a large portion of Philippine waters in the coverage area of exploration under the JMSU emboldened China to assert control over the territories long claimed by Manila.

It also cited the former government’s attempts to get Congress

to back off on inclusion of the Spratlys in the Philippine baselines, a position “similarly motivated by illicit Chinese influence.”

“There is widespread suspicion that corruption may influence Philippine policy,” the cable said.

The South China Sea — an international waterway where more than 50 percent of the world’s merchant fleet tonnage passes each year – had been a source of conflict among claimants China, the Philippines, Vietnam, Malaysia, Brunei and Taiwan.

The territorial disputes have also drawn in the US, a key defense and security ally of the Philippines, saying it has vital national interest in ensuring freedom of navigation in the waters believed to be rich in oil and natural gas and coveted for its rich fishing grounds.

In previous months, the Philippines and Vietnam traded diplomatic protests and verbal barbs with China over allegations of incursions, sabotaging oil exploration and harassing fishermen within both countries’ territories in the Spratlys.

China, which maintained historical claim over the entire South China Sea, has ignored the protests and even warned claimants against conducting oil exploration in the area referred to by the Philippines as West Philippine Sea.

“Fearing that the inclusion of the Spratlys in Philippine territorial baselines would provoke China, inflame tensions in the South China Sea, and upset the delicate status quo, the Arroyo administration pursued a third approach, pressing Congress to revisit the baselines issue and include only the main archipelago, leaving the Spratlys and Scarborough classed as ‘regimes of islands,’” the cable said.

In March 2009, Arroyo signed into law Republic Act 9522 or the baseline act which reaffirms the country’s claim over the more than 7,100 islands in its archipelago, including outlying territories in the disputed Spratlys. The law treats Kalayaan Island Group and Scarborough Shoal, two of the country’s claimed territories in the Spratlys, as “regime of islands” under the “Republic of the Philippines.”

The Philippines needed at that time to define its baselines to meet the deadline set by the United Nations for countries to define its maritime boundaries pursuant to the UN Convention on the Law of the Sea (UNCLOS) or risk losing its extended continental shelf. A baselines law is also necessary so that overlapping claims in the South China Sea can be addressed by the UN.

Under UNCLOS, the Philippines is entitled to an exclusive economic zone (EEZ) of 200 nautical miles and an extended continental shelf of 350 nautical miles, which appear to encompass a large portion of the Spratlys.

The Spratlys controversy, the embassy said, posed as “a strategic conundrum to the Arroyo administration.”

“Filipino nationalism and widespread suspicion over China’s intentions in the region militate in favor of the government taking a more aggressive stance in advocating for Philippine sovereignty over the islands,” the cable said.

For these reasons, the embassy said, “the Arroyo administration had little choice but to allow the JMSU agreement to lapse when it expired on June 30, (2008) even though doing so posed a setback to its relations with China.”

The embassy also saw the Philippines as “the weaker party in an increasingly asymmetric relationship with China” as its military is preoccupied more with containing the country’s insurgent groups.

It added it is clearly not in the Philippines’ best interests to allow tensions in the South China Sea to escalate to the level of armed confrontations.

http://www.tribune.net.ph/

Brillantes’ appointment hangs fire

By Rey Salita

Manila Standard Today

THE Commission on Appointments deferred the confirmation of Elections chairman Sixto Brillantes for the third time on Wednesday taking into account the opposition filed by Comelec director Ferdinand Rafanan.

Brillantes was even placed on a tighter bind when Senator Alan Peter Cayetano threatened to veto his appointment in the plenary even if it passes the committee level.

CA committee on constitutional commissions and offices chairman Jose Estrada said Cayetano revealed his plan to invoke section 20 of the CA rules against Brillantes if the committee considers his nomination.

“It’s his prerogative,” Estrada said, “and he can invoke (his veto against Brillantes’ confirmation) everytime the committee recommends the confirmation in the bicameral session.”

Cayetano said his opposition to Brillantes’ appointment “is nothing personal” and he was “only questioning Brillantes’ failure to make good on his promise to reform the Comelec.

Comelec officials linked to the massive cheating in the 2004 national elections remained with the Comelec occupying critical positions in the poll body’s Mindanao units, Cayetano said.

Cayetano also said Brillantes even rewarded Comelec personnel tagged by the Ombudsman in the P690 million overpric ing of ballot secrecy folders with juicy postings.

Rafanan also blocked Brillantes’ confirmation by presenting an affidavit accusing his superior of several violations of the anti-graft law.

Committee vice chairman Rep. Rodante Marcoleta attempted to reject Rafanan’s affidavit, on the reason that the CA’s accommodation might set a precedent allowing last minute filing of opposition. Rep. Simeon Datumanong, another committee member, prevailed upon Marcoleta.

Rafanan accused Brillantes of violations of the anti-graft law.

Rafanan also charged Brillantes with bullying and compelling him to compromise cases he was handling when he was chief of the law department; favoring those implicated in the folder overpricing; conflict of interest ; and for illegally removing him (Rafanan) from office last Aug. 31.

But Estrada contended that Rafanan’s complaints happened at least 14months ago and he only filed his opposition in the last minute of the proceedings. Rey Salita

http://www.manilastandardtoday.com/insideNation.htm?f=2011/september/15/nation3.isx&d=2011/september/15

A new brand of corruption

By Cita Garcia

Comelec Chairman Sixto Brillantes

In July 2008. Archbishop Angel Lagdameo said, “ In the past few years up to today, we have watched how corruption has become endemic , massive, systemic, and rampant in our politics. Corruption is a moral and social cancer.

These days we are witnessing as the bitter exchanges of words between COMELEC Chair SIXTO BRILLIANTES argued against the unassailable stand of Atty. Ferdinand Rafanan are taking place. Last night, I watched as Senator Peter Cayetano moved for the deferment of the confirmation of the appointment of S. Brilliantes. He should not be confirmed.

This morning Atty. James Jimenez said that the charges against the three(3) Comelec personnel charged with overpricing the Ballot secrecy folders were not proven? Paano nangyari that they were meted a suspension of one year, reduced to 6 years at the instance of COMELEC Chair Brilliantes if the charges were not proven?

Besides what is the Chairman doing with the Ombudsman ( interim) pleading for the reduction of the suspension period and when it was reduced to 6 months humihirit pa na iabsuelto na daw ni Atty. Rafanan?

I voted last election without any ballot secrecy folder, actually, there was no need for that che che borreche. It was procured without any public bidding, isn’t this against the law?

Why is the Chairman of COMELEC lawyering for those culprits, as against someone know for his integrity and unassailable honesty? All that Brillinates could say was? Maraming galit kay Rafanan sa Comelec!” is that a reason? Not a brilliant reason. He is the example of one who is angry at Rafanan because Rafanan is too honest who would not give in to what he was asking- Brilliantes was asking Rafanan to absolve the culprits.

Talagang endemic and corruption dito. President NOYNOY committed a grave error in appointing someone who had practiced his law profession at the COMELEC. Maraming hindi galit sa kanya because maraming gracia na dumating sa mga employees ng COMELEC before.