14 May 2010

THE CHR ON THE 2010 ELECTIONS: GENERALLY SUCCESSFUL, BUT SERIOUS CONCERNS REMAIN

At the start of this week, millions of Filipinos braved stifling heat, long lines and other difficulties, in order to be able to cast their ballots in the country’s first ever automated national and local elections. These elections offered the opportunity to usher in leaders who would chart a course toward increased and more equitable prosperity, who would finally seal a lasting, sustainable and just peace, and who would make human rights a priority, not just in their rhetoric, but also in their decisions and actions. Much hinged on this electoral exercise, the political ambitions of individuals, the credibility of institutions and firms, and the aspirations of a nation heavily burdened by poverty, corruption, armed conflict, and abuses against human dignity.

It has been several days since Election Day. Poll results have come in rapidly, and certain races have already been decided. Some candidates have already gracefully conceded to their opponents. But the process is by no means over, so the Commission on Human Rights (CHR), the media, civil society, other organizations and the people, continue to closely monitor the situation. While it is important for results to come in quickly, it is also just as vital if not more so, for these results to be accurate, free from tampering and fraud, and for these results to truly reflect the will of the people.

It is clear, however, that there is much to be thankful for, given how the May 10 elections took place.

First of all , the CHR shares the general sense of relief that, despite initial glitches and doubts, the Commission on Elections (COMELEC) managed to pull things through, and was thus able to make this historic event a reality. The verdict of many is that the automated elections were generally successful.

Second , the results of the elections were broadcast swiftly to the public mere hours after the polls closed, which was a pleasant surprise for many, and was beyond expectations. This change bolsters not only the right of the public to information but demonstrates its interconnection with the right to security of person, particularly of election workers. The reduced total duration of the electoral process lessened the opportunities for cheating and fraud as well as intimidation, harassment and violence at the precinct and canvassing levels. At best, the automated elections greatly reduced the threats to life of election workers because it diluted the avenues for manipulation of results at the precinct level.

Third , the CHR lauds institutions and sectors, namely, the media, civil society organizations, the academe, COMELEC-accredited citizens’ arms, such as the Parish Pastoral Council for Responsible Voting (PPCRV), Legal Network for Truthful Elections (Lente), and the Citizens’ Coalition for ARMM Electoral Reform (C-CARE), and all volunteers.

The efforts undertaken by these organizations, especially in areas fraught with election-related tension or violence, helped to protect the right of persons to life, security of person, freedom of opinion and expression, peaceful assembly, and freedom of association. Their voter education campaigns, and dissemination of information and updates, helped breathe life into the right of persons to receive information, and to vote. Much of the general success of the automated elections is rooted in this collective effort on the part of many sectors of Philippine society.

The CHR particularly commends the members of Boards of Election Inspectors (BEI) and their support staff, who bore the brunt of the work on Election Day, who made adjustments on the ground in order to try to facilitate the flow of voters, who attempted to aid voters who were elderly, pregnant or persons with disabilities, and who in certain cases put their own personal security on the line, in order to safeguard the integrity of the voting process. Much credit for the general success of the polls goes to these teachers who were at the frontline.

Fourth , the CHR is greatly pleased that the 2010 elections finally ushered in the reality of detainee voting, en masse. For far too long, these thousands of individuals have languished behind bars willingly forgotten by society while waiting for their trials to commence or continue. And despite the presumption of their innocence, this segment of the population was repeatedly denied the right to vote. These elections have begun the process of ending this disenfranchisement, and it is hoped that political leaders will now seriously heed the concerns of this group, such as the subhuman conditions to which too many of them are routinely exposed. Credit for this great progress goes to the COMELEC, the Bureau of Jail Management and Penology (BJMP), and the many other civil society organizations and international institutions, which partnered with the CHR on this initiative.

The CHR continues to hope that succeeding elections will usher in even greater enfranchisement of other vulnerable groups, such as first-time voters, migrant workers, the elderly, persons with disabilities, internally displaced persons and indigenous peoples.

Again, there is much to be appreciated, given the way the 2010 elections have taken place.

Nevertheless, serious concerns on the manner in which the electoral exercise has been conducted, and the environment which prevailed, remain and we must recognize them to enhance the right to electoral participation. It is in this respect that the CHR raises the following issues as the way forward:

First of all , it is clear that there may have been scores of qualified voters who were disenfranchised during the last elections, through no fault of their own. Reports have come in of individuals who couldn’t find their names on voters’ lists, of long lines forcing many voters to wait for several hours and causing numerous individuals to give up and leave, and of ballots which were being rejected by the Precinct Count Optical Scan (PCOS) machines for different reasons, as well as other causes of disenfranchisement. The CHR remains seriously concerned regarding this clear denial of the human right to vote.

The Philippines is a party to the International Covenant on Civil and Political Rights (ICCPR), an international treaty which, among other things, creates binding legal obligations on the part of government. Article 25 of that treaty states that:

“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

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“(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;” (Emphasis supplied)

The ICCPR further provides that:

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (Emphasis supplied)

The United Nations Human Rights Committee, which is the body tasked with monitoring implementation of the ICCPR, released General Comment No. 25 on the right to vote. In that General Comment, it states that:

“States must take effective measures to ensure that all persons entitled to vote are able to exercise that right.” (Emphasis supplied)

Therefore, it is not enough for the government to state that it respects the right of the people to vote. It must take effective measures to ensure that qualified voters are in fact able to cast their ballots. When names are unreasonably or mysteriously struck off voters’ lists, when voters are forced to wait for four hours or more, in hot conditions, just so that they can vote, when voters’ ballots are rejected unreasonably by PCOS machines, then violations of the right to vote exist, and the government is in breach of its international obligations. These must be corrected in time for the next electoral exercise, and accountability must be brought to bear on those who failed to effectively discharge their duties. In the same light, accountability must also be brought down to the individual level. Availing of the services to register and validate their names in the list early on could have also prevented their disenfranchisement.

Second , the Commission minces no words at the bastardization of the Party List System as many legitimate marginalized sector-based organizations have been denied the right to stand for elections and others of dubious advocacies and representations have been allowed to participate in this elections. Efforts must be undertaken to give legal flesh to the definition of ‘marginalization’ to curb the casual accreditation process of partylist organizations.

Third, the nation bore witness during the campaign period to much mudslinging, black propaganda, character assassination, personal attacks, and assaults on human dignity. These unfortunate acts appear to have been the order of the day, in the run up to the 2010 elections. The CHR issues a reminder to those individuals, parties and groups who engaged in this type of activity, and to any who intend to do so in the next elections, that while there is a fundamental human right to freedom of expression (Art. 19, ICCPR), this right also “carries with it special duties and responsibilities,” in line with the need to respect “the rights or reputations of others.” (Article 19, ICCPR).

Fourth , while the CHR has lauded the media for its coverage of the 2010 elections, and for the key informational and educational role that it has played, certain misgivings and significant concerns exist. Specifically, the election coverage carried out by certain media personalities and organizations has opened them up to credible accusations of a lack of neutrality or objectivity. The election reporting done by some of these individuals and institutions has appeared to smack of partisanship and unfairness, an observation which has been expressed even by other members of media. This is a truly regrettable development.

The credibility of the media, and its strength as one of the bastions of democracy, stems from the trust of the public at large, in its ability to uncover and broadcast facts and analysis, in an accurate and impartial manner, without fear or favor. Where this brand of public trust is undermined by the appearance of partiality, bias or favoritism on the part of a number of media workers or outfits, then the integrity of the media as a whole is weakened, thereby empowering those individuals and interests who would benefit from a greater lack of transparency and accountability in Philippine society.

Fifth , while the Philippine National Police (PNP) and the Armed Forces of the Philippines (AFP), as well as other parties, have described the 2010 elections as “generally peaceful,” the CHR notes that election-related violence remained prevalent. The PNP has logged at least 82 incidents of poll-related violence since January 10, which include 27 deaths and 42 persons injured. While this figure may be lower than in previous elections, it embodies an unacceptably high number of violations of the right to life and security of person. This is made even more apparent when the massacre in Maguindanao, which took place before January 10, or the start of the election period, is included. There is no doubt that that atrocity was election-related, and that one incident alone resulted in the deaths of 57 persons, including journalists, human rights advocates, lawyers and women. The CHR also continues to monitor the situation, for reports of election-related violence which may take place after Election Day.

Sixth , while the automated elections have potentially made it more difficult for some forms of cheating to take place, it is clear that electoral irregularities, anomalies and fraud remained widespread. Reports of massive vote-buying in many places have surfaced. People have also reportedly been paid to vote more than once or not to vote at all. Reports have also come in of coercion, intimidation and harassment carried out by armed individuals or groups. Voters in certain places have alleged that they were forcibly inked. Foreign observers have also stated that they were subjected to instances of intimidation, by both military forces and suspected private armed groups. Partisan armed groups reportedly terrorized certain communities. And all these were clearly aimed at denying persons their right to vote, and at undermining the possibility of free, fair and genuine elections.

Seventh , while the automated elections were generally successful, credible issues have been raised by election and information technology watchdogs and experts, regarding the integrity of the process. To name a few, the disabling of the PCOS machines’ ultraviolet scanners, and in their stead, 76,000 portable UV-detection lamps were purchased and distributed but were hardly used or used selectively on election day; the COMELEC’s express instructions to the BEIs not to digitally sign the electronically transmitted election returns; the adoption of a no ballot replacement rule; the non-adoption of a voter verification mechanism whereby the voter is able to find out whether the machine has registered his choice – all these and more, which are deviations from the statutorily-prescribed safeguards, are a cause for serious concern.

In addition, the review carried out by SysTest Labs Inc., an American company which certifies voting software, of the Smartmatic source code used for the automated elections is not encouraging. Among other things, SysTest appears to have stated that the Ballot Production tool was not subjected to the full certification process, and therefore should not be used in the May elections. SysTest also appears to have stated that the modem firmware, which is required for transmissions, was not subjected to the full certification process, and it advised COMELEC to request the source code from Smartmatic, and thoroughly review it before the elections.

The CHR looks forward to further disclosure on the part of the COMELEC, of the nature and security of all equipment, including their hardware and software components, used in the automated elections. As the Supreme Court held in Guingona, Jr. v. COMELEC (G.R. No. 191846, May 6, 2010):

“Respondent COMELEC cannot shirk its constitutional duty to disclose fully to the public complete details of all information relating to its preparations for the 10 May 2010 elections without violating the Constitution and relevant laws.”

Again, it is imperative that the right to vote be respected, through the holding of elections whose results truly embody the will of the electorate. On this score, CHR zealously awaits the results of the random manual audit as mandated by law.

The waiting is almost over. Candidates are conceding and winners are being proclaimed. The CHR and its partners will continue to monitor developments, in order to help ensure that the mandate of the people will be respected. We shall also closely follow post-election reviews and assessments of the automated election process, as well as conduct our own rights-based analysis, in order to improve the current system in time for the next elections. And as we move forward, it is our hope that the incoming administration will be one which meaningfully prioritizes the human rights and human dignity of all, not just on paper, but in reality.