Divide Comelec functions between legal, IT experts

The nine functions that the Constitution entrusts with the Comelec can be reduced to two basics:

• to adjudicate election cases, and

• to oversee all elections.

Two kinds of experts are needed for the two functions. For the first: lawyers with fairness and familiarity with legal issues. For the second: systems and logistics managers, and – because of the Automated Election Law of 2008 – information-technologist.

The Constitution states that there shall be seven commissioners, at least four of whom should be lawyers. From national experience, the lawyer-commissioners have bungled the election automation. The first attempt, with MegaPacific in 2004, was so flawed that the Supreme Court voided the contract. The next, by Smartmatic in 2010, lacked safeguards against fraud; the public accepted the results only because of Noynoy Aquino’s landslide victory, but many local outcomes were doubtful. For the 2013 balloting the Comelec purchase of Smartmatic’s voting machines is under fire for lack of software license failure of all accuracy tests.

Perhaps the Constitution needs amending, to divide the functions of election arbitration and administration between two agencies. Then again, Charter Change is not a priority of the Aquino Presidency. So Gus Lagman, IT expert and former commissioner, suggests a simpler way. That is, for the seven Comelec commissioners themselves to split the two functions.

There are presently four lawyer-commissioners, one non-lawyer, and two vacancies in the Comelec. Hopefully, Lagman says, President Aquino would appoint two IT experts. With the third non-lawyer commissioner  ex-politician Grace Padaca  the two IT experts can concentrate on the automation issues. The four lawyers  chairman Sixto Brillantes, Lucenito Tagle, Elias Yusoph, and Robert Lim  can handle the legal cases.

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Bringing China’s seizure of Scarborough (Panatag) Shoal under United Nations arbitration was rightest for the Philippines. Clearly China was unprepared for and thus unnerved by the filing. All it could do was to insist on talks between Manila and Beijing alone. At the same time it thumped its chest about its military assets. These exposed China all the more before the world as a bully.

Three other options were impossible or impractical. Evicting the Chinese occupation vessels needs naval might, which the Philippines does not have. Running to the UN Security Council or the ASEAN is futile, since China is a permanent member of the first and can arm-twist the second. Diplomatic protesting would have fallen on deaf ears; China ignored Philippine notes against its grabbing of Mischief Reef 18 years ago.

While arbitration under the UN Convention on the Law of the Sea was the only choice left, it was nonetheless tricky. The Philippines had to correctly anticipated China to refuse to participate. So it plowed through all the legal angles to find the best line of argument. The 20-page product, “Notification and Statement of Claim of the Philippines to China,” is airtight, lawyers say. (See www.pia.gov.ph/news/piafiles/DFA-13-0211.pdf?iframe=true&width=100%&height=100%).

The Philippines has always had prior possession and control of Panatag. Two facts stand out. In the ’60s and ’70s Philippine and U.S. air force planes jointly practiced target bombing at the shoal. China and other countries never protested. The Philippines dutifully gave prior worldwide Notices to Mariners, through usual international maritime channels, to steer clear of the area during the exercises. Also, the Philippines enacted in March 2009 a Baselines Law that specifically lists Panatag as part of Philippine territory.

Only much later that year did China announce its “nine-dash line” claim over the entire South China Sea, based on unrevealed “ancient maps.” The claim encompassed Panatag, which China mistakenly calls Huangyan Island, although it has no vegetation and fresh water source. China could not have inhabited the “island” since time immemorial, for it is but a pool of reefs and rocks, six of which jut out of the sea at low tide. To those rocks China tied chains in November 2012, by way of seizure. It then stationed armed vessels to shoo Filipino fishermen out of a zone that the Philippines used to possess and control.

The “Notification and Statement of Claim” adroitly avoids land and maritime sovereignty issues, however. For, those are precisely what China is raising in refusal to take part in the arbitration. International laws require the consent of the contending parties in arbitrations of land and maritime territorial disputes. Had the document argued about those two matters, the arbiters could throw it out simply from China’s non-participation.

Instead the paper centers on the invalidity of China’s “nine-dash line” that makes the South China Sea an interior lake. Since China is a signatory to the UNCLOS, it is obligated to submit to the pact’s compulsory arbitration.

Focus is on the 200-mile exclusive economic zones (EEZ) granted to coastal nations under the UNCLOS. At issue is whether China’s “nine-dash line” violates the UNCLOS. Can China use Huangyan/Panatag as start-off point in delineating its EEZ? Can it even use submerged formations, like the Mischief Reef well outside its EEZ but within the Philippines’, as way points? By not submitting to arbitration, China automatically could lose by default.

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