Lapses and offenses

It is good to know that Commission on Elections Chairman Sixto Brillantes has warmed up to the possibility that the truth about the 2004 and 2007 elections may be just around the corner. His appeal to former Commissioner Virgilio Garcillano to reveal what he knows about election fraud in those two crucial votes is too timid to our taste, but it’s a start.

“Commissioner Garcillano, please come out. Anyway we now have a different administration,” he said.

We would have preferred that Brillantes, a leading election lawyer before his appointment to the Comelec, used the considerable powers of his office to force the issue and bring the man widely believed to be at the center of the “Hello, Garci” scandal behind the Arroyo administration’s crisis of legitimacy to justice — or at the very least to an encounter with the truth. Not because the Comelec is part of a “different administration” — it is an independent constitutional body — but because the fraud that Garcillano is believed to have engineered may have been the most consequential election offense since Imelda Marcos and her slate stole the elections from Ninoy Aquino and the Lakas ng Bayan candidates in 1978.

It demands closure.

While Garcillano or his principals cannot be charged with the crime of electoral sabotage, which carries a penalty of life imprisonment but was enacted only after the 2004 vote, Gloria Macapagal-Arroyo can still be held liable for the series of election offenses that Garcillano and company are believed to have committed, to ensure a million-vote margin of victory. (Note that criminal liability in the vote fraud of 2007 has not yet lapsed.)

We agree with Brillantes’ view, and we are certain many others do too, that in the case of a president who enjoys the privilege of presidential immunity, the five-year prescription period for any election offense that that president may have committed cannot start until after the privilege of immunity lapses. “It is as simple as saying that when she was president, we could not have filed any case against her because she was immune from suits. So for me, prescription should start on June 30, 2010 when her term expired,” Brillantes said.

To assert otherwise is to argue that a president can never be convicted of an election offense, even if the evidence is clear and overwhelming, simply because the five-year prescription period starts and ends within the president’s six-year term.

The Comelec can certainly proceed on this path, but given the reality of a Supreme Court filled with Arroyo appointees, it is still possible that a legal challenge to this legal theory will end with the impossible conclusion that liability for any election crime she may have committed has already prescribed.

That would be a pity, because there is a direct link between the massacre of the votes in Maguindanao and the massacre of the unfortunate victims in that province. We repeat what we wrote in this space yesterday: It is the election fraud perpetrated in Maguindanao in 2004 and again in 2007 that emboldened the masterminds of the gruesome Ampatuan, Maguindanao massacre of 2009 to think that they could get away with it.

The backhoe that serves as metaphor for the massacre, the worst act of political violence in our history, is a potent symbol precisely because it reflects both the unprecedented scale and brutality of the massacre as well as the callous use of official government resources, complete with a politician’s name, in the horrific crime.

What can be done to hold those responsible for election fraud to account? The Comelec chairman suggests some possibilities, including falsification of public documents and graft — “common crimes,” Brillantes said, and therefore “not within our jurisdiction.”

Maybe the time has come to consider legislation with stronger penalties against those who commit electoral crimes. On top of several years in prison and perpetual disqualification from political office, maybe those candidates who serve in office because of election fraud should be forced to return every centavo received from public coffers, plus interest.

A new law like this may not be able to bring to justice all the operators responsible for anomalies in the 2004 election, but at least we would have learned the right lessons from it.