Comelec throws OFW voters under the bus

To throw someone under the bus is to sacrifice another person undeserving of such treatment. This is exactly what the Commission on Elections (Comelec) did on January 18, 2013 when it ordered the removal of 238,557 overseas Filipino workers (OFWs) from its official voters list for “failing to notify the commission of their intent to vote on May 13” after they were given a “last chance” to be retained in the National Registry of Overseas Absentee Voters (NROAV).

The Comelec’s order is based on the authority granted to it by the Overseas Absentee Voting Act of 2003 (Republic Act No. 9189) which provides that the registration of the OAV voters “shall be permanent, and cannot be cancelled or amended” except when the OAV voter wishes to be removed from the list or “when the overseas absentee voter’s name was ordered removed by the Commission from the Registry of Overseas Absentee Voters for his/her failure to exercise his/her right to vote under this Act for two (2) consecutive national elections” (Section 9.2).

 No disqualification for not voting in two elections

Nowhere in the OAV law is there any provision requiring the Comelec to remove the names of any OAV voter who fails to vote in two consecutive national elections; the law merely gives Comelec the discretionary authority to remove their names if they fail to do so. Thus Comelec can allow the 238,557 OAV voters to vote in the May 2013 national elections but has simply declined to do so.

The Comelec instead accepted the recommendation of Comelec OAV Commissioner Lucenito Tagle to remove them when it “promulgated” Resolution 9567 on December 4, 2012 providing that “notice shall be published in two (2) newspapers of general circulation that the list of their name (sic) will be published in the websites of the both the Commission and the DFA with the advise (sic) that, if they wish to remain in the list, they should file a manifestation of their intent to vote in the May 13, 2013 National elections with the different Post (sic) having jurisdiction over their residence or directly with COAV, Manila”. These OAV voters were given until December 21, 2012 to comply.

On December 14, 2012, the Comelec “promulgated” Resolution 9578 extending the “manifestation” period from December 21, 2012 to January 11, 2013. According to the resolution, notice about this extension shall be made by “the immediate publication of this Resolution in two (2) newspapers of general circulation.”

How will publishing these Comelec resolutions in two Philippine newspapers possibly provide 238,557 overseas Filipinos with proper notice of their need to file a “manifestation” by a date certain?

Predictably, by the January 11, 2013 deadline, only 29 out of 238,557 OAV voters had filed their “manifestations” and were allowed to vote in the May 2013 elections. The rest were thrown under the bus.

 The importance of each and every Filipino voter

The Comelec website (comelec.gov.ph) contains a message from Commissioner Lucenito N. Tagle, “the new Chairman of the Committee on Overseas Absentee Voting”, declaring that he “recognizes the importance of each and every vote of every Filipino in the Philippines and anywhere around the globe” and claiming that “the Commission did not cease to find ways to provide opportunities for the Filipinos who are abroad to be able to cast their votes and have their voices heard in a very important democratic process.”

Tagle further asserted that the Comelec is “determined to hurdle every stumbling block to reach out to our millions of kababayan who have decided to leave the country to seek their fate in another land. It is our objective therefore to inculcate in them the significant role that they play in molding our country’s future- that is in choosing the leaders of our nation.”

Commissioner Tagle pledged to do his solemn best “to pour greater efforts to make this marriage between the Comelec and our fellow Filipinos abroad strong and robust.” By throwing OAV voters under the bus.

 OAV summit at the Comelec

On September 29, 2011, the Comelec invited Atty. Ted Laguatan and I, along with other OAV stakeholders to attend  the “OAV Summit” at the Comelec main office in Intramuros, Manila to discuss the Comelec’s goal to register one million OAV voters for the May 2013 national elections during the OAV registration period from October 31, 2011 to October 31, 2012.

At that OAV Summit,  Comelec Chairman Sixto Brilliantes, Jr. revealed that the Comelec “may” be required to remove the names of about 246,000 voters from the 589,830 names on the registered OAV list because they did not vote for two consecutive election cycles and, he said, Philippine law requires their removal.

But, not to worry, Chairman Brilliantes assured us, the Comelec had decided in a recent meeting to just “move their names to a separate list so that if they come to vote in the May 2013 elections and their names are on this other list, they will be allowed to vote.”

Stakeholders at that OAV Summit had explained to the Commissioners that there are 200,000 Filipinos working on commercial vessels and that most of them could not vote in the original ports they registered in, which Comelec rules required them to do in order to vote.

Representatives of the more than 1.2 million Filipinos in Saudi Arabia testified that many of the homes in the Middle East have no street numbers so letters/notices are usually sent to the home owners whose identities are known to the local post office. So many, if not most, of these OAV Middle East voters did not receive their notices to vote in the 2007 or 2010 national elections.

Affidavit to return within three years

I informed the Comelec commissioners that I had just testified at the September 26, 2011 joint hearing of the House Committee on Suffrage and the House Committee on Overseas Filipinos called to discuss a bill amending the 2003 OAV law. I urged the House representatives to remove the provision in the OAV law that requires OAV voters to execute an “affidavit of intent to return” to the Philippines within three years of voting abroad and if they  fail to return within that three-year time period, they may face penalties that include imprisonment of up to one year.

If the OAV voter registered to vote in 2004 after executing this affidavit, and then votes again in the 2007 or 2010 national elections, then they would be providing incriminating evidence that they were still abroad and had not returned to the Philippines as they vowed to do when they signed the affidavit to return. They risked harsh penalties for simply exercising their right of suffrage.

Then OAV Comelec Commissioner Armando Velasco testified at the Batasan joint hearing that the Comelec was all for removing the affidavit to return clause in the OAV law. He testified that overseas Filipinos who register to vote have to check a box in the Comelec OAV voter registration form declaring that they had executed the affidavit to return. If the box is not checked, then the OAV registration application is rejected.

Equal protection of the law

Atty. Laguatan suggested to the Comelec commissioners that they simply ignore the “unconstitutional” affidavit to return requirement as former Chief Justice Artemio Panganiban explained in an article in the Philippine Daily Inquirer (Enfranchising ‘duals’ and ‘greens’, September 17, 2011). Panganiban wrote that that the unanimous 2006 Philippine Supreme Court decision in Nicolas-Lewis vs. Comelec not only enfranchised dual citizens – extending to them the right to vote without the residence requirement – but that this also logically extends to “single citizens” as it would be a violation of the “equal protection of the law” if interpreted otherwise. Why should dual citizens have more rights than single citizens?

“Since the goal of the residency qualification is accomplished by the globalization of information, then the purpose of the law is fulfilled. Our brothers and sisters abroad should be allowed to vote during national elections without anachronistic roadblocks. After all, being the single biggest source of foreign exchange, they keep our economy afloat,” Panganiban wrote.

At the September 26, 2011 joint hearing at the Batasan, all the Batasan representatives present (which included House Speaker Feliciano Belmonte, Jr.) indicated full support for the provision removing the affidavit to return requirement. Unfortunately, the bill also contained provisions for Internet voting which was more controversial so it has not yet passed Congress.

Without removing the affidavit to return provision, Comelec was only able to register 212,009 OAV voters by August 27, 2012, with barely two months left for OAV voters to register to vote, far below the goal of garnering one million OAV voters .

Mostly dual citizens registered to vote

According to a consul at the San Francisco Philippine Consulate, only 1,624 new OAV voters registered to vote and virtually all of them were dual citizens who were not required to execute an affidavit to return.

Out of 11 million overseas Filipinos, only 212,009 of them registered to vote within the registration period that ended on October 31, 2012. Comelec then decided to simply add this number to the 589,000 OAV voters who had already registered to vote since 2004.

On November 4, 2012, Comelec reported to Sen. Koko Pimentel, chairman of the Senate Committee on Electoral Reforms and People’s Participation, that the number of OAV voters has reached over 915,000, “the highest number so far in OAV history”.

Sen. Pimentel commended Comelec for its impressive work of registering OAV voters.  “The desire of our Overseas Filipino Workers (OFW) to register and to vote is there, the figures (Comelec) cited are tangible proof of this,” Pimentel said.

After receiving the kudos from the Senate, the Comelec then turned around a month later and retracted its promise to keep the 238,557 OAV voters on a separate list eligible to vote in the May 2013 elections. The Comelec commissioners showed exactly how they “recognize the importance of each and every vote of every Filipino in the Philippines and anywhere around the globe” by throwing the OAV voters under the bus.

Political marginalization of OFWs

In his House speech sponsoring House Bill 3201 amending the Overseas Voting Act of 2003, Akbayan Party-list Rep. Walden Bello lamented the fact that in the May 2010 elections, only 589,830 overseas Filipinos registered to vote, meaning, he said, “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.

By disenfranchising 238,557 OAV voters, the Comelec has furthered the political marginalization of overseas Filipinos. Shame.

(Send comments to [email protected] or mail them to the Law Offices of Rodel Rodis at 2429 Ocean Avenue, San Francisco, CA 94127 or call 415.334.7800).