What a good Fair Elections Act must enforce
AS I WRECK THIS CHAIR By William M. Esposo
The Philippine Star 2010-02-18

There will be several affected parties — not just showbiz personalities — who will challenge RA 9006, or also known as The Fair Elections Act, in the Supreme Court.

Already, ABS-CBN expressed disagreement with the interpretation of RA 9006, as verbalized by Comelec (Commission on Elections) Legal Head Ferdinand Rafanan. Last Monday, the Comelec retreated somewhat and left it to media firms to decide whether to put their people on leave.

Ramon Tulfo challenged RA 9006 in his February 13 column as it applies to him as a columnist. Mon previously expressed his opinion that among the presidential candidates Dick Gordon would make the ideal 2010 president. Mon is an opinion writer and is well within the parameters for opinion writing when he expressed that personal view.

But according to the Comelec (Commission on Elections) announcement and interpretation of RA 9006, Mon will have to take a leave of absence for having expressed his preference for Dick Gordon. Oddly, the RA 9006 provision — “Any 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.” — does not compel Mon to resign as he is neither employed by nor a volunteer for Gordon.

Mon can cite Section 4 of the Bill of Rights of the Constitution as his main defense. Section 4 of The Bill of Rights in the Constitution states: “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

Other than the Constitution, there are a host of other highly questionable aspects of RA 9006. Veteran election lawyer Romulo Macalintal observed that RA 9006 appears to be discriminatory. He questioned during a recent TV interview the Comelec’s zeroing in on endorsements from showbiz celebrities but disregards the endorsements from businessmen, professionals, sports stars and so forth.

This controversial provision of RA 9006 is the wrong prescription for addressing the need for an election level playing field. It is a clear intrusion on Freedom of Speech, Expression and of the Press. Following the statement of Section 4 of the Bill of Rights (“No law should be passed...”), RA 9006 should not even be considered valid at all.

Somehow, from the good and valid objective for crafting a Fair Elections Act — the wrong means were utilized. The main objective of a Fair Elections Act is to ensure fair competition. RA 9006 became questionable because it resorted to handicapping instead of simply leveling the playing field.

When election campaign spending is limited to P10 per voter (around P500 million for 50 million voters) per presidential candidate — that is leveling the playing field. But when a presidential candidate who has the allowable P500 million to spend is forced to spend only P100 million because the other candidates cannot raise P500 million — that is handicapping and unjustifiable.

This concept of handicapping is a sore loser’s recourse that is passed off as leveling the playing field. In the US 2008 presidential elections, Barack Obama received the endorsements of most of the celebrities but you never saw John McCain complain about that or seek to handicap Obama for it. McCain recognized the right of the celebrities to express their views.

Instead of rendering RA 9006 unenforceable because of violations of the Constitution, the Comelec should consider focusing on measures that really create a level playing field. Among these measures should be:

1. Strict enforcement of spending limits during the campaign period. Comelec only investigates and prosecutes the violators after the campaign when the trail had gotten cold.

2. Disallow the use of party media allocations or those of other party candidates by a presidential candidate. That limit of 120 minutes for one TV station is useless if the presidential candidate can poach from the allocation for the party or their other candidates.

3. Create a board to screen and verify if candidate advertising claims are true and disallow the use of false advertising. This is standard practice in the advertising industry and Comelec can even tap the Advertising Standards Council to screen the ads of the candidates. Manny Villar has been projecting that he was born poor but his own online bio refutes that assertion.

4. Mandate that all campaign expenses are immediately reported to the Comelec. The Comelec should tap the Departments of Justice and Finance to monitor if the expenses are truly reported. A clear violation becomes ground for the disqualification of the guilty candidate.

5. Create a Comelec Intelligence Division where the NBI and PNP can second its personnel. This Intel Division should probe and prosecute the crooks in the Comelec, media and other areas which affect elections. This Division should also catch those brokers of cheating operations outside of the Comelec.

These are the more important and productive undertakings the Comelec should be pursuing instead of those handicapping methods which is typical of people belonging to an inferior culture.

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