No poll expense reports, can’t take office

Parties of Binay, Enrile,
Jinggoy, Imelda defy law

First of Two Parts

IF LAWS on campaign finance were enforced to the letter, Senators Juan Ponce Enrile, Jose ‘Jinggoy’ Estrada, and Sergio Osmeña III, along with Ilocos Norte Rep. Imelda R. Marcos and perhaps even Vice President Jejomar Binay should not be occupying their seats right now. That would be because they or the political parties that nominated them have yet to submit to the Commission on Elections (Comelec) a Statement of Election Contributions and Expenditures (SECE), as required by law.

The electoral exercise does not end with the proclamation of winners. Republic Act No. 7166 or the Synchronized Elections Law stipulates that within 30 days after election day, every candidate and political party that participated in the polls must file with the Comelec the full, true, and itemized SECE.

Until they do, the law says they should not be allowed to take their elected posts.

Being remiss in this requirement would also mean a fine, which could run from P1,000 to P30,000 for first offenders, to P2,000 to P60,000 for second offenders.

The SECE is not just a legal requirement for candidates and parties. Comelec Law Department Head Ferdinand Rafanan says the document is essential for the election body to monitor election spending, which is subject to certain lawful limits.

But electoral laws, especially those related to campaign finance, have long been ignored in this country. The Comelec itself seems to have realized the need to enforce the rules regarding campaign funds only lately, a situation that has apparently encouraged impunity among political parties and candidates, including those who eventually emerge as winners in elections.

In fact, Osmeña and the political parties to which Binay, Enrile, Estrada, and Marcos belong make up just a tiny fraction of Comelec’s long list of those who have yet to file their SECEs, even as President Benigno Simeon C. Aquino III marked last week his first year in office.

Long, long list

For the May 2010 elections, the poll body counts at least one candidate for president and another for vice-president, nine senatorial candidates, 36 party-list groups and 70 political parties as having failed to submit their SECEs.
This official list has yet to include those who ran for local elective positions – a roster of names that Comelec says runs 457 pages.

This year, though, Comelec has finally taken steps to address campaign-finance issues through the creation of a Campaign Finance Unit. Yet at most, the poll body would probably try to impose only fines on errant candidates and parties. After all, it is already too late to try prying off their seats the winners who would be proven to have failed to file their SECEs.

Rafanan himself says that the Law Department’ s recommendations to the Commission En Banc would lead to resolutions addressed to the erring candidates and parties that would order them only to pay fines or to explain why their registration should not be revoked.

He admits that Comelec has yet to bar any winning candidate from occupying an elected post until he or she submitted a SECE. This is because, he says, there is no coordination between the Comelec and the Department of Interior and Local Government (DILG) or the House of Representatives and the Senate that could have disallowed erring local officials and lawmakers from assuming office.

Comelec is also usually hardpressed for time to consolidate all the SECEs. In law, the deadline is 30 days after election day or June 9, 2010 for the May 2010 polls. But due to requests of some party-list groups, the original deadline was extended to June 24, 2010.

Rafanan says that by the time officials assume office on June 30, the Law Department had yet to finalize a list of those who filed and did not file. Thus, the lawyer recommends to shorten the period of filing to two weeks. This would allow the Comelec more time to check and prevent those who did not comply from taking office.

In addition, Comelec now plans to sign memoranda of agreement with concerned government units to help it stop winning candidates from taking their posts even if they had not yet submitted their SECEs. But Rafanan says he is stumped on who would enforce such a penalty for a winning vice-presidential or presidential candidate, although he says that the task may fall on whoever is in charge of swearing in these top officials into office.

Binay’s UNO

The Comelec legal department chief is wondering about this now since one of the political parties that nominated Vice President Binay appears in the poll body’s list of SECE non-filers. According to Binay’s own certificate of candidacy or COC, he was nominated by two parties: Partido Demokratiko Pilipino-Lakas ng Bayan (PDP-Laban) and United Opposition (UNO). Yet while Binay and PDP-Laban submitted their respective SECEs to the Comelec before June 24, 2010, UNO did not.

In July 2010, Comelec sent a letter to UNO Chairman Danilo Lacuna at the party’s listed Malate address. It asked Lacuna for a sworn explanation why the party failed to file the SECE and why it should not be penalized. Comelec did not get a response.

PCIJ sent its own query last May to Binay as UNO founder. Last Jun. 23, the Center received a reply from PDP-Laban legal counsel Ma. Donnah Guia C. Lerona-Camitan in which she argued that UNO did not “participate” in the May 2010 elections and therefore need not file a SECE. She cited Section 14 of Comelec Resolution No. 8944 that says, “(Every) treasurer of the political party or party-list group that participated in the election shall file with the Law Department of the Comelec its statement of election contributions and expenditures.”

The last day for filing COCs was Nov. 30, 2009. Camitan said that UNO was unable to issue Certificates of Nomination and Acceptance (CONAs) to any of its candidates because Comelec granted its petition for re-accreditation and re-registration as the consolidated party of PDP-Laban and Pwersa ng Masang Pilipino (PMP) only on Jan. 12, 2010. Camitan said Binay’s CONA was issued by PDP-Laban.

“The operative act by which a political party is considered to have participated in any electoral exercise is their issuance of CONA to any and all their candidates,” wrote Camitan. “In simple terms, UNO, in effect has taken no part in the concluded 2010 elections.”

Rafanan declines to give an official statement on UNO and Binay since he says his department has yet to receive an official response from UNO. But he says that although there is no clear definition of electoral “participation” in the law, it goes beyond the issuance of the CONA. According to Rafanan, “participation” may also cover a party spending for a candidate even if it did not issue his or her CONA.

Election law expert Luie Tito F. Guia also says that in general terms, a political party participates in an election if it conducts a campaign in support of a candidate who may or may not be a party member. Moreover, he says a political party participates when it engages in “partisan political activity.” In Sec. 79 of the Omnibus Election Code, this refers to “an act designed to promote the election or defeat of a particular candidate or candidates to a public office.”

Whether or not UNO did any of these is not yet clear. In any case, Comelec lawyer Nilda C. Concha, who is one of those in charge of the SECEs, says that UNO should have replied to Comelec last year when it sent notices to all SECE non-filers, asking these for explanations why they should not be penalized. She says that the Comelec identified UNO as a non-filer because it was an accredited party and yet had no SECE on file.

JPE, Jinggoy, Serge

It’s an argument that seems to have flown over the head of the PMP party, which had nominated Senators Enrile and Estrada, among others, for the 2010 elections. Enrile and Estrada filed their individual SECEs, but PMP proved to be remiss with this requirement.

Queried about this by PCIJ, Enrile wrote in reply that as the party’s Chairman Emeritus, he is “not knowledgeable of PMP’s administrative affairs.” Enrile’s legal assistant Katherine Faye Darvin-Dizon then advised PCIJ to contact Senator Estrada as he is the party’s executive vice president. As of this writing, however, PCIJ has yet to get an official statement from Senator Estrada’s staff personnel, lawyer Fortune Mayuga.

Senator Osmeña also has yet to reply to PCIJ’s queries regarding his own missing SECE. But Osmeña, who ran as an independent candidate, had submitted a sworn statement to Comelec on Aug. 5, 2010, in which he attributed his failure to file the SECE to a “mix-up of activities” when he acted as coordinator for the Aquino campaign. He also said that he would submit the statement “soonest, hopefully on or around 15 August 2010.” Any SECE from the senator, however, has yet to reach Comelec as of this writing, June 2011.

KBL blames Comelec

Kilusang Bagong Lipunan (KBL), the party that nominated former First Lady Marcos for Congress, for its part chose to point to Comelec itself as the reason why it did not submit a SECE. According to the party’s former chairman, the poll body has never required KBL to do so “probably because Comelec presumes it is a penniless Party.”

In a letter to PCIJ dated May 31, 2011, lawyer Vicente D. Millora said that this had always been the case for KBL, or at least when he was its chairman from 1992 to 2010. But he added that all of the party’s candidates were required to submit their respective SECEs after every election. Millora said that he believes most of their candidates “have complied.”

Election rules, however, do not make an exception even when a political party claims that it is “penniless.” In fact, Comelec Resolution No. 8944 provides that the statement shall reflect such fact “if the candidate or treasurer of the party has received no contribution, made no expenditure, or has no pending obligation.”

The rest of those on Comelec’s official list of SECE non-filers for the May 2010 national elections were non-winners. Obviously, though, losing does not exempt candidates and political parties from filing the required statement – and from paying fines if they fail to do so.

Brother Eddie, too

Among these is the Bangon Pilipinas party of Christian evangelist Brother Eduardo ‘Eddie’ C. Villanueva who ran for president last year. The party itself filed a SECE, which some of its candidates, including Villanueva and senatorial bets Zafrullah Marohombsar Alonto, Adz Ganih Nikabulin, Ramoncito P. Ocampo, Zosimo Jesus M. Paredes II, and Alexander B. Tinsay took as meaning they had fulfilled the requirement.

In a July 5, 2010 letter to Rafanan, Virginia S. Jose, the party’s legal counsel, asserted that Bangon Pilipinas’s SECE “covers all the contributions and expenditures that the candidates (for president, vice president, and senator) have received and incurred for the election period, thereby dispensing the filing of individual reports.”

But Comelec says Bangon Pilipinas’s SECE cannot be taken as being also those of Villanueva and company. Rafanan explains that a party’s SECE is separate from that of a candidate because each is allowed to spend separately. Candidates and parties also have different spending limits such that candidates for president and vice president are allowed to spend only a maximum of P10 per registered voter. Political parties, meanwhile, are allowed to spend a maximum of P5 per registered voter.

Bangon Pilipinas’s SECE, which lists a total of P83.44 million in contributions and P96.01 million in expenditures, does not distinguish how much was donated and spent for each candidate. Comelec would thus not find the document useful if it were to, say, check the cost of Villanueva’s presidential campaign because the party SECE supposedly covers donations and expenses of several candidates.

According to Jose, it was agreed within the party that all contributions shall be coursed through and all expenditures shall be made by Bangon Pilipinas. In the event that any of the party’s candidates received individual contributions or incur individual expenses, the lawyer said they were advised to submit a separate report.

Indeed, some of Bangon Pilipinas’s national candidates like Perfecto R. Yasay who ran for vice-president, and Imelda Papin, Reynaldo Princesa, and Israel N. Virgines, who all ran for senator, submitted their own SECEs.

In a more recent letter to PCIJ, Jose acknowledged that Comelec later advised the party’s candidates to submit separate SECEs. But she said she told the Commission that “it will be difficult to specify which of the funds of Bangon Party was intended as contributions for a particular candidate and it will be equally difficult to determine which of the funds of the Party was spent for a particular candidate so that each candidate can have a report of its own (other than those who already filed a separate SECE).”

Bangon’s own way

Jose also pointed out the candidates who were funded wholly by the Party’s funds would not exceed their respective spending limits because they would have to only spend within the allocated Party funds, which was lesser than the limit imposed by law.

Jose said that Comelec then advised the party to have each candidate at least submit the verified one-page form of the SECE (summary page), adopting the SECE filed by Bangon Pilipinas, along with documents submitted by the party and the explanation previously sent. Comelec has since received such submissions from Villanueva and Tinsay.

Jose said that Bangon Pilipinas wholly funding the campaign of its candidates is “quite unusual” but she explains that it is not the first time that the party “has changed the traditional way of doing the election (campaign) practices.”

In the 2004 and 2010 elections, she wrote in her letter to PCIJ, it had been public knowledge that supporters of Bangon Pilipinas and Villanueva in particular were the ones buying election paraphernalia.

“Supporters took it upon themselves to prepare campaign materials to support the candidacy of Bro. Eddie without taking any single centavo from the candidate nor from the Party,” wrote Jose. “Supporters were the ones who prepared the food for the watchers, printed their own t-shirts, printed their own stickers, tarpaulins and others. As such, the Party and even Bro. Eddie (have) no record of those expenditures because the same were not reported to the Party and were plain initiatives of those people who want change in this country.”

Reiterating her party’s “non-traditional” campaign, she continued, “As you can see, we have attempted several times to make known to COMELEC how our system goes. We do not want to invent things just to strictly comply with the rules when in reality we have approached the exercise differently. We rather state the truth and explain until it is fully understood that Bangon Party (is) not a conventional party. We have complied and submit(ted) the SECE to the best of our ability and with transparency.”
The law is the law

But Rafanan says the law is clear that separate SECEs must be filed. The party may claim that it has a non-traditional way of participating in the elections, but he says that it “cannot go against the law.”

If indeed Bangon Pilipinas incurred all the expenses for the candidate, Rafanan says, the candidate must still file his individual SECE, indicating there that he had “zero expenditure,” although the contributions he received should reflect how much the party spent for him.

Contributions in cash or kind by supporters of the party or a particular candidate as described by Jose should have also been reported if these were authorized election expenditures, says Rafanan. The candidate or the party treasurer should have issued an express written authority to the person to incur expenses, he says. Otherwise, the person is unauthorized to spend for the elections.

Comelec’s Concha also told PCIJ recently that she advised Jose that the party’s candidates would still need to file separate SECEs. Jose, however, seems to believe otherwise, writing to PCIJ that when she contacted Comelec’s Law Department recently, she was told that it had not issued “further notice/s anymore of the fact that they (Law Department) did not consider our submissions as compliance with the rules.” She was also told that a resolution is being prepared that will cite those who did not submit the SECE.

Still, Jose said that while the party is not submitting anything more since it was not notified to do so, it is willing to comply with any further Comelec directives.

More non-filers

Other candidates for national posts who lost in the last election and did not file SECEs are Jose ‘Jay’ Y. Sonza, Shariff Ibrahim Albani, and Hector L. Villanueva of KBL, and Henry B. Caunan of PDP-Laban, along with political party Abag Promdi, which that nominated Emilio Mario R. Osmeña for senator.

PCIJ sought clarification from these candidates regarding their missing SECEs, sending letters by fax, email, and post. Numerous follow-up calls were also made to no avail.

In a report last year, the PCIJ noted that Comelec’s inability to fully exercise its authority in ensuring compliance with campaign finance rules is due to the lack of resources and skilled personnel, as well as ambiguities in election laws.

While a comprehensive election expense monitoring is too big a task for Comelec at the moment, its Law Department has initiated some measures that would hopefully make candidates and parties more compliant at least with filing the SECE.

In 2008, the department created a database of candidates who submitted and did not submit the SECE from the 1998, 2001, 2004, and 2007 elections to help it monitor compliance and identify second-time offenders. It has since updated this up to the 2010 polls. Under the law, those who do not file SECEs twice would be banned from running for public office.

In the 2007 elections, Comelec found that 11 senatorial candidates either failed to file the SECE or were late in filing the statement. Those who filed late include incumbent Senator Antonio F. Trillanes IV, former Senator Anna Dominique M. Coseteng, then Quezon City Rep. Michael T. Defensor, and former Zambales Governor Vicente P. Magsaysay.

Those who did not submit SECEs were: Martin D. Bautista, Felix C. Cantal, Joselito P. Cayetano, Antonio L. Estrella, Jamalul D. Kiram, Eduardo F. Orpilla, and Victor N. Wood.

More across PH

Comelec also recorded at least 8,147 erring provincial and local candidates in the 2007 elections. Region X or Northern Mindanao had the highest number of SECE non-filers: 1,438. Next were Region XII (SOCCKSARGEN) with 985 non-filers and Region IV-A (CALABARZON) and IV-B (MIMAROPA) with a combined 838 non-filers.

The poll body then required the erring candidates to submit their sworn explanations stating the reasons why they failed to file the SECE and why they should not be administratively fined and/or subjected to perpetual disqualification from holding public office.

For the provincial and local positions, only one in 10 of the SECE non-filers responded to Comelec’s notice. For the senatorial candidates in the 2007 race, only four of the 11 non-filers replied.

Comelec received a myriad of reasons from candidates trying to justify their non-compliance. Some of the more common arguments were that losing candidates are not required to file the statement, the candidates did not spend for the election, or they were not notified by the election officers.

Some candidates said they forgot about the requirement or became too depressed after losing the polls. Others said they became busy after the campaign, or that there were no personnel in the Comelec office when they tried to file their SECEs. Some said they lost the campaign expense receipts or that the person they assigned to file the document failed to do the task.

For disqualification

After reviewing the merits of these affidavits, the Law Department made recommendations to the Commission En Banc for the imposition of appropriate penalties against the erring candidates. As of June 2011, the Law Department has made at least 24 recommendations to the Commission.

This includes the case of Brillante Inciong who failed to file his SECE in 2004 and 2007. In 2010, he ran again and was finally elected Parañaque City councilor. The Law Department recommended Inciong’s disqualification and removal from office because he failed to file the SECE twice.

The case had been referred to Comelec’s Investigation and Prosecution Division for fact-finding. If the Law Department’s recommendations regarding Inciong were carried out, it would be the first time that a winning candidate is disqualified and removed from office for not filing the SECE.

Still and all, there’s plenty of room for improvement in enforcing SECE rules. Among the 10 senatorial candidates in 2007 meted with a P20,000 fine for being late in filing their SECEs, for example, only one – Coseteng – actually paid.

Joselito P. Angeles, who, with Concha, is in charge of the SECEs at Comelec, says that educating voters and candidates of election laws and the consequences of violating them remain key even if the Civil Code provides that ignorance of the law excuses no one from compliance therewith.

Angeles says the Comelec engages voters and candidates through ELECTVOICE or the Election Law Enforcement thru Voters’ Information and Candidates Education program. He points out, “Effective enforcement of election laws can only be achieved with an informed citizenry.” – With additional research by Jessa Mae B. Jarilla, PCIJ, July 2011