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1
CHAPTER ONE: INTRODUCTION
A. BACKGROUND OF THE STUDY
The word election is derived from the Latin verb legere, meaning "to
choose." It is a formal process by which voters make their political choices on
public issues or candidates for public office. The use of elections in the modern
era dates to the emergence of representative government in Europe and North
America since the 17th century. Regular elections serve to hold leaders
accountable for their performance and permit an exchange of influence
between the governors and the governed. The availability of alternatives is a
necessary condition. Votes may be secret or public.1 In Republican and
Democratic countries, the usual mode of filling for positions in public office is
through elections. In the Philippines, positions of public office, both national (i.e.
President, Vice-President, Senate, and House of Representative) as well as
local (i.e. Governor, Mayor, City Council) are chosen by the Filipino people
through their exercise of their right of suffrage in intervals of three years.
Ever since the American Colonial Period, all elections in the Philippines
were held manually. As such, Philippine election laws were originally designed
1 Election (Political Science), available at http://www.britannica.com/EBchecked/topic/182308/election (last accessed Apr. 11 2010).
2
for manual elections. Thus, the Philippine legislature (then known as Batasang
Pambansa) enacted Batas Pambansa Blg. 881, better known as the Omnibus
Election Code (hereinafter referred to as OEC).2 The basic aim of this law is to
govern all election of public officers and, to the extent appropriate, all referenda
and plebiscites.3
However, as the popular adage goes: the only constant thing in life is
change. Technological advances have streamlined most of the everyday affairs
of the Filipino people. The Philippine Legislature was aware that sooner or later,
even the Philippine elections will benefit from technology. They knew that
manual elections will soon be phased-out by automated elections. Technology
will eliminate the longer time needed to release the results and the different
controversies surrounding manual elections such as the infamous dagdag-
bawas and some other election frauds. Automated elections, aside from the
promise of a relatively shorter period needed in order to produce the results,
have more potential in securing the purity of the electoral process since it is
believed that electoral frauds will be more difficult to commit under this system.4
2 The Omnibus Election Code of the Philippines [OMNIBUS ELECTION CODE], Batas Pambansa Blg. 881 (1985).
3 Id. § 2.
4 Gabriel Cardinoza, Automated election in May will succeed, available at http://newsinfo.inquirer.net/ inquirerheadlines/learning/view/20100314-258632/Automated-election-in-May-will-succeed (last accessed Apr. 11 2010).
3
As early as 1997, the Philippine Legislature has already provided for
laws that will govern the automated system of elections. Republic Act No. 8436,
otherwise known as the Election Modernization Act,5 and its amendatory law
Republic Act. No. 9369, otherwise known as the Amended Computerization Act
of 2007,6 were enacted to govern this move to automation. However, the
passage of these laws did not dislodge the OEC as the main and governing
election law in the Philippines. The subsequent automation laws provided for a
provision which says, “The provision of Batas Pambansa Blg. 881, as amended,
otherwise known as the 'Omnibus Election Code of the Philippines', and other
election laws not inconsistent with this Act shall apply.”7 However, as provided
in other laws, the Automation Laws also provided for a repealing clause, saying,
“All laws, presidential decrees, executive orders, rules and regulations or parts
thereof inconsistent with the provisions of this Act are hereby repealed or
modified accordingly.”8
5 An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National and Local Exercises, Providing Funds Therefor and for other Purposes [hereinafter ELECTION MODERNIZATION ACT], Republic Act No. 8436 (1997) .
6 An Act Amending Republic Act No. 8436 entitled “An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National and Local Exercises, to Encourage Transparency, Credibility, Fairness, and Accuracy of Elections, Amending for the Purpose Batas Pambansa Blg. 881, as Amended, Republic Act No. 7166 and other Related Election Laws, Providing Funds Therefore and for other Purposes [hereinafter AMENDED COMPUTERIZATION ACT OF 2007], Republic Act No. 9369 (2007).
7 AMENDED COMPUTERIZATION ACT OF 2007, § 36.
8 ELECTION MODERNIZATION ACT, § 46.
4
True enough, the intent of the legislature in enacting the Election
Modernization Act as well as the Amended Computerization Act of 2007 is “to
ensure free, orderly, honest, peaceful, credible and informed elections,
plebiscites, referenda, recall and other similar electoral exercises by improving
on the election process and adopting systems, which shall involve the use of an
automated election system that will ensure the secrecy and sanctity of the ballot
and all election, consolidation and transmission documents on order that the
process shall be transparent and credible and that the results shall be fast,
accurate and reflective of the genuine will of the people.”9 However, with the
enactment of such automation laws, certain important provisions of the OEC
were rendered nugatory and thus, impliedly repealed. This caused some
loopholes within the law that will threaten the purity and sanctity of the country’s
electoral processes. One of the provisions in danger is Section 80 of the OEC
which prohibits the commission of the act of premature campaigning and
declaring such act to be unlawful.
B. STATEMENT OF THE LEGAL ISSUE
Section 80 of the OEC provides that “It shall be unlawful for any person,
whether or not a voter or candidate, or for any party, or association of persons,
9 Id., § 1.
5
to engage in an election campaign or partisan political activity except during the
campaign period: Provided, That political parties may hold political conventions
or meetings to nominate their official candidates within thirty days before the
commencement of the campaign period and forty-five days for Presidential and
Vice-Presidential election.” However, Section 15 of the Election Modernization
Act, as amended, states that “any person who files his certificate of candidacy
within this period shall only be considered as a candidate at the start of the
campaign period for which he filed his certificate of candidacy: Provided, That,
unlawful acts or omissions applicable to a candidate shall effect only upon that
start of the aforesaid campaign period...” This glaring inconsistency, coupled by
the Supreme Court ruling in Penera v. COMELEC10 where the court held that
the prohibition of premature campaigning is a thing of the past, effectively took
out Section 80 of the OEC from the statute books.
Indeed, the Supreme Court in Penera v. COMELEC effectively allowed
the implied repeal of Section 80 of the OEC through the enactment of the
Election Modernization Act, as amended by the Amended Computerization Act
of 2007, and thus; it allowed the absurd situation where someone who has
already filed his certificate of candidacy with the COMELEC is not considered a
candidate until the start of the campaign period for which he filed his certificate
of candidacy.
10 Penera v. COMELEC (MR), G.R. No. 181613, 605 SCRA 575 (2009).
6
C. OBJECTIVES OF THE STUDY
The objective of this thesis is to show that the decisions in Lanot v.
COMELEC11 and Penera v. COMELEC (both the original12 and the Motion for
Reconsideration13 decisions) created a dangerous precedent in Philippine
election laws as they held that the enactment of the Election Modernization Act,
as amended, impliedly repealed Section 80 of the OEC. As a result thereof, the
election offense of premature campaigning became history - the act of
campaigning or engaging in partisan political activity outside of the campaign
period is now decriminalized.
After establishing these facts, this thesis will then explore the other
possible ways and means in order to revive such provision of the OEC. This
may come in the form of a review of the above-mentioned cases or even in the
proposal of an amendment in the Election Modernization Act, as amended. In
short, this study aims to make Section 80 of the OEC be effective within the
sphere of the Election Modernization Act as amended by the Amended
Computerization Act of 2007.
D. SCOPE AND LIMITATIONS
11 Lanot v. COMELEC, G.R. No. 164858, 507 SCRA 114 (2006).
12 Penera v. COMELEC, G.R. No. 181613, 599 SCRA 609 (2009).
13 Penera (MR), supra. note 10.
7
This thesis is largely centered on [1] Section 80 of the OEC and related
provisions of the said law such as Sections 68, 262-269; [2] Section 15 of the
Election Modernization Act, as amended; and [3] the Supreme Court decisions
in the cases of Lanot v. COMELEC and Penera v. COMELEC. As much as
possible, this thesis will only be limited to such materials and other related
materials regarding premature campaigning.
This thesis will not touch on other election offenses nor to any other
provisions found in the other election laws which are not connected with the
election offense of premature campaigning.
E. SIGNIFICANCE OF THE STUDY
Every law was enacted by the Legislature for a purpose. It may be to
achieve a certain purpose, such as in promoting certain values or to prevent the
proliferation of certain evils. In the case Section 80 of the OEC which prohibits
premature campaigning, the purpose is two-fold: [1] “to level the playing field for
candidates of public office i.e. to equalize the situation between popular or rich
candidates, on one hand, and lesser-known or poorer candidates, on the other,
by preventing the former from enjoying undue advantage in exposure and
8
publicity on account of their resources and popularity;”14 and [2] “to ensure a
free, orderly, honest, peaceful, and credible elections.”15
With premature campaigning already decriminalized by the Election
Modernization Act, as amended, and Penera v. COMELEC, the evils sought to
be prevented by its proscription will be reawakened, ready to defile the sanctity
and purity of the electoral processes of the Philippines. As such, this study is
geared towards the reactivation of the provision on the prohibition of premature
campaigning in order to suppress the evils that the law seeks to prevent and at
the same time, promote the values that it espouses – within the framework of
the Election Modernization Act, as amended.
F. METHODOLOGY OF THE STUDY
This study will involve the review of three national legislations and their
amendatory laws: the Omnibus Election Code, the Election Modernization Act,
and the Amended Computerization Act of 2007. Likewise, this study will also
use the Philippine Constitution as well as other national laws to review the
provisions relating to premature campaigning.
14 Chavez v. COMELEC, G.R. No. 162777, 437 SCRA 415 (2004).
15 Badoy, Jr. v. COMELEC, G.R. Nos. L-32546 and L-32551, 35 SCRA 285 (1970).
9
Aside from looking at these laws, this study will also evaluate Lanot v.
COMELEC and Penera v. COMELEC to highlight the inconsistencies between
the laws regulating premature campaigning. This analysis will also include
these cases’ separate and dissenting opinions. Other Philippine jurisprudence
will also be used to discuss the other topics in support of the proposition that
Section 80 of the OEC should not have been rendered inapplicable by the two
other laws.
Apart from these materials, the Minutes of the Bicameral Conference
Committee on the Constitutional Amendments will be employed to aid the
review of the statutes. Books and articles discussing the nature of premature
campaigning will also be employed to build up the problem envisioned by this
study.
G. ORGANIZATION OF THE STUDY
Chapter one of this study will serve as the introduction. It will include the
background, statement of legal issues, objectives, scope and limitations,
significance of the study, methodology, organization, and definition of terms.
Chapter two will center on the election offense of premature
campaigning. There will be a discussion on the definition, elements, and extent
of the acts deemed by law and jurisprudence as constituting such election
10
offense. Thereafter, there will also be a discussion on the Constitutionality of
prohibiting the act of campaigning or engaging in partisan political activities
outside the campaign period. This will involve the reconciliation of the
Constitutional right of freedom of expression, as espoused by Section 4 of
Article III of the 1987 Philippine Constitution and need to suppress the evils
sought to be prevented by the proscription on premature campaigning.
Chapter three will then look into the evolution of the election offense of
premature campaigning in Philippine law and jurisprudence. It will tackle the
various laws affecting premature campaigning such as the OEC and the
Election Modernization Act, as amended by the Amended Computerization Act
of 2007. It will also carefully scrutinize the cases of Lanot v. COMELEC and
Penera v. COMELEC since these are the cases that have effectively pulled the
plug of the election offense of premature campaigning.
Chapter four will discuss the effects of the decriminalization of premature
campaigning. In this chapter, this study will look into the events surrounding the
May 2010 elections since it is the first electoral exercise wherein premature
campaigning is entirely disregarded by most candidates. It will also look into the
provisions of the different election-related laws in the Philippines to determine
whether there are still enough safeguards to suppress the evil sought to be
prevented by the election offense of premature campaigning.
11
The fifth and last chapter of this thesis will then discuss and present the
conclusion and recommendations of this study in order to solve the legal issue
presented by the thesis. As already said earlier, the remedy that this study will
present will focus on the revival of Section 80 of the OEC so as to make it
applicable within the arena of automated elections.
H. DEFINITION OF TERMS
This study will use the following terms using the following definitions:
CANDIDATE – it refers to any person aspiring for or seeking an elective
public office, who has filed a certificate of candidacy by himself or
through an accredited political party, aggroupment, or coalition of
parties.16 But any person who files his certificate of candidacy within the
period stated shall only be considered as a candidate at the start of the
campaign period for which he filed his certificate of candidacy.17
ELECTION CAMPAIGN OR PARTISAN POLITICAL ACTIVITY – it
refers to an act designed to promote the election or defeat of a particular
candidate or candidates to a public office and it includes the following
acts: [a] forming organizations, associations, clubs, committees or other
groups of persons for the purpose of soliciting votes and/or undertaking
16 OMNIBUS ELECTION CODE, § 79 (a).
17 ELECTION AUTOMATION LAW, § 15.
12
any campaign for or against a candidate; [b] holding political caucuses,
conferences, meetings, rallies, parades, or other similar assemblies, for
the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate; [c] Making speeches,
announcements or commentaries, or holding interviews for or against the
election of any candidate for public office; [d] Publishing or distributing
campaign literature or materials designed to support or oppose the
election of any candidate; or [e] Directly or indirectly soliciting votes,
pledges or support for or against a candidate.18
CAMPAIGN PERIOD – the period of campaign shall be as follows:
1. Presidential and Vice-Presidential Election – 90 days;
2. Local Election – 45 days; and
3. Barangay Election – 15 days.
The campaign period shall not include the day before and the day of the
elections.19
18 OMNIBUS ELECTION CODE, § 79 (b). These acts, if performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan election activity. Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article.
19 OMNIBUS ELECTION CODE, § 3.
13
PREMATURE CAMPAIGNING – refers to election campaign and
partisan political activity outside of the campaign period.20 This will be
defined in more detail in the next chapter.
20 Id., § 80.
14
CHAPTER TWO: THE ELECTION OFFENSE OF PREMATURE CAMPAIGNING AND THE CONSTITUTIONALITY OF ITS
PROSCRIPTION
This study centers mainly revolves around the election offense of
premature campaigning. As such, it is only imperative that a whole chapter of
this study is dedicated to this concept. In this chapter, there will be three
sections. The first section will primarily discuss the definition of the election
offense of premature campaigning. This will include a discussion on the
elements of such election offense and what would constitute such elements,
including a short survey of jurisprudence to further help in determining whether
or not such elements of the election offense are present. The second section
will talk about the legal implications should one commit such election offense.
Lastly, the third section will take a look at the Constitutional right to free
expression and how this proscription on premature campaigning is deemed to
have not infringed such Constitutional right.
A. THE ELECTION OFFENSE OF PREMATURE CAMPAIGNING
The first statute that dealt with premature campaigning is Republic Act
No. 4880, otherwise known as An Act Amending Section 50 of the Revised
Election Code. enacted and took effect on July 17, 1967. Basically, this statute
15
amended Section 5021 of Republic Act No. 180, otherwise known as the
Revised Election Code of 1947. Section 1 of Republic Act 4880 introduced two
new provisions in the statute books, Section 50-A and Section 50-B, with the
latter section being the provision defining and criminalizing the election offense
of premature campaigning. Section 1 of this statute provides:
Section 1. Republic Act Numbered One Hundred and Eighty, as amended, is hereby further amended by inserting new sections to be known as Sections 50-A and 50-B, between Sections 50 and 51 thereof, which shall read as follows:
Section 50-A. Prohibition of too early nomination of Candidates – It shall be unlawful for any political party, political committee, or political group to nominate candidates for any elective public office voted for at large earlier than one hundred and fifty days immediately preceding an election, and for any other elective public office earlier than ninety days immediately preceding an election.
Section 50-B. Limitation upon the period of Election Campaign or Partisan Political Activity – It is unlawful for any person whether or not a voter or candidate, or for any group or association of persons, whether or not a political party or political committee, to engage in an election campaign or partisan political activity except during the period of one hundred and twenty days immediately preceding an election involving a public office voted for at large and ninety days immediately preceding an election for any other elective public office. (emphasis supplied)
The term “candidate” refers to any person aspiring for or seeking an elective public office, regardless of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its candidate.
The term “election campaign” or “partisan political activity” refers to acts designed to have a candidate
21 Section 50. Unlawful Electioneering – During registration and voting days, it is unlawful to solicit votes or undertake any propaganda for or against any candidate or any party within the polling place and within a radius of thirty meters thereof.
16
elected or not or promote the candidacy of a person or person to a public office which shall include:
(a) Forming organizations, Associations, Clubs, Committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate;
(b) Holding political conventions, caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party;
(c) Making speeches, announcements, or commentaries or holding interviews for or against the election of any party or candidate for public office;
(d) Publishing or distributing campaign literature or materials;
(e) Directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party;
(f) Giving, soliciting, or receiving contributions for election campaign purposes, either directly or indirectly: Provided, that simple expressions or opinion and thoughts concerning the election shall not be considered as part of an election campaign: Provided, further, that nothing herein stated shall be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports.22
22 An Act Amending Section 50 of the Revised Election Code, Republic Act No. 4880 (1967).
17
At present time, Section 50 of Republic Act No. 180 was slightly
amended and is now embodied in Section 261(k) of the OEC. Section 50-A was
amended and constitutes Section 623 of Republic Act No. 7166.24 The second
paragraph of Section 50-B was also amended and is now Section 79(a) of the
OEC while the third paragraph of the same provision is now Section 79(b) of the
same statute. Most importantly, the first paragraph of Section 50-B paved the
way for the present-day provision which defines and treats as an election
offense the act of premature campaigning. Section 80 of the OEC, provides in
its entirety that:
Section 80. Election campaign or partisan political activity outside campaign period. – It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of person, to engage in an election campaign or partisan political activity except during the campaign period: Provided, that political parties may hold political conventions or meetings to nominate their official candidates within thirty days before the commencement of the campaign period and forty-five days for Presidential and Vice-Presidential Elections. (emphasis supplied)25
23 Section 6. Nomination and Selection of Official Candidates – No political convention or meeting for the nomination or selection of the official candidates of any political party or organization or political groups or coalition thereof shall be held earlier than the following periods:
(a) For President, Vice-President and Senators, one hundred sixty-five (165) days before the day of the election; and
(b) For members of the House of Representatives and elective provincial, city, or municipal officials, seventy-five (75) days before the day of the election.
24 An Act Providing for A Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes, Republic Act No. 7166 (1991).
25 OMNIBUS ELECTION CODE § 80.
18
Looking at Section 80 of the OEC and its predecessor, Section 50-B of
Republic Act No. 180 as amended by Republic Act No. 4880, it can be clearly
seen that engaging in partisan political activity is not illegal per se. It is only
illegal when certain elements are present. According to the case of Lanot v.
COMELEC, the essential elements for violation of Section 80 of the OEC are
the following: [1] a person engages in an election campaign or partisan political
activity; [2] the act is designed to promote the election or defeat of a particular
candidate or candidates; and [3] the act is done outside the campaign period.26
For further understanding, the following elements shall be discussed
individually.
First element: a person engages in an election campaign or partisan political
activity
As already adverted to in the previous chapter, Section 79(b) of the OEC
provides for the definition of election campaign or partisan political activity.
However, looking into the wording of the statute, it used the word “includes.”
Basic is the rule in statutory construction that the use of such word to define a
certain terminology implies that the definition provided for by the statute is not
exclusive; thus, the OEC definition of election campaign or partisan political
26 Lanot, supra. note 11 at 147.
19
activity is not exhaustive and that other acts not mentioned therein may also
constitute the said terminologies as defined by the OEC. Moreover, assuming
arguendo that the list provided for in the provision is exclusive, Section 79(b)(5)
states that “directly or indirectly soliciting votes, pledges, or support for or
against a candidate” also constitutes an election campaign or partisan political
activity. This may be interpreted as a catch-all provision wherein all other acts
not explicitly defined by the law as constituting an election campaign or partisan
political activity may be deemed as such.
Fortunately, Philippine Jurisprudence has shed light as to what other
acts may constitute an election campaign or partisan political activity. In certain
cases, the Supreme Court were quick to deem as an election campaign or
partisan political activity acts that are not covered by Section 79(b) of the OEC
but by sheer common sense may associated such. For example, in one case,
the Supreme Court held that a motorcade, albeit not expressly listed in Section
79(b) of the OEC, falls within the purview of an election campaign or partisan
political activity, which if not done in the proper time, would constitute a violation
on the proscription on premature campaigning. The Supreme Court said in that
case:
A motorcade is a procession or parade of automobiles or other motor vehicles. The conduct thereof during election periods by the candidates and their supporters is a fact that need not be belabored due to its widespread and pervasive practice. The obvious purpose of the conduct of motorcades is to introduce the candidates and the positions, to which they seek to be elected, to the voting public; or to make them more visible so as to facilitate the recognition and
20
recollection of their names in the minds of the voters come election time. Unmistakably, motorcades are undertaken for no other purpose than to promote the election of a particular candidate or candidates.27
(emphasis supplied)
Curiously, the Supreme Court also deemed an election campaign or
partisan political activity seemingly “harmless” acts such as posting of
endorsement billboards. In the case of Chavez v. COMELEC,28 petitioner
Chavez entered into various endorsement deals with various commercial
businesses. By entering in such endorsement deals, the petitioner appeared in
various billboards along Metro Manila. Later on, petitioner filed his certificate of
candidacy for the position of Senator in the 2004 senatorial elections. Roughly a
month after, the COMELEC issued Resolution No. 6520,29 which is the crux of
the controversy in this case. Petitioner questions the constitutionality of Section
32 of the assailed resolution, which reads:
Section 32. All propaganda materials such as posters, streamers, stickers or paintings on walls and other materials showing the picture, image or name of a person, and all advertisements on print, in radio or on television showing the image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a candidate for public office shall be immediately removed by said candidate and radio station, print media or television station within 3 days after the effectivity of these implementing rules; otherwise, he and said radio station, print media or television station shall be presumed to
27 Penera, supra. note 12 at 634.
28 Chavez, supra. note 14.
29 Rules and Regulations Implementing Republic Act No. 9006, otherwise known as the “Fair Election Act,” in relation to the May 10, 2004 Elections and Subsequent Elections, Comelec Resolution No. 6520 (2004).
21
have conducted premature campaigning in violation of Section 80 of the Omnibus Election Code.30
Petitioner Chavez argued that the endorsement billboards, while they
exhibit his name and image, do not at all announce his candidacy for any public
office nor solicit support for such candidacy from the electorate. He further
claimed that the billboards are mere product endorsements and not election
propaganda. He then concluded that the taking down of such billboards under
the threat of committing the election offense of premature campaigning is not
valid and that the COMELEC has no power to do so.
However, the High Court rejected the petitioner’s contentions and it held
that such billboards, if not taken down, would definitely constitute the election
offense of premature campaigning. The Supreme Court’s rationale in deciding
this way is as follows:
It is true that when petitioner entered into the contracts or agreements to endorse certain products, he acted as a private individual and had all the right to lend his name and image to these products. However, when he filed his certificate of candidacy for Senator, the billboards featuring his name and image assumed partisan political character because the same indirectly promoted his candidacy. Therefore, the COMELEC was acting well within its scope of powers when it required petitioner to discontinue the display of the subject billboards. If the subject billboards were to be allowed, candidates for public office whose name and image are used to advertise commercial products would have more opportunity to make themselves known to the electorate, to the disadvantage of other candidates who do not have the same chance of lending their faces and names to endorse popular commercial products as image models. Similarly, an individual intending to run for public office within the next few months, could pay private corporations to use him as their image model with the intention of familiarizing the public with his name and
30 Id. § 32.
22
image even before the start of the campaign period. This, without a doubt, would be a circumvention of the rule against premature campaigning.31 (emphasis supplied)
These jurisprudence, coupled by the catch-all provision in the OEC,
basically encompasses almost every act that has a tendency to enhance the
candidacy of a particular candidate and thus; falling under the definition of
election campaign or partisan political activity.
Second element: the act is designed to promote the election or defeat of a
particular candidate or candidates
There should not be any substantial discussion under this subsection.
This is because as adverted to in Chavez v. COMELEC, even the harmless
endorsement billboards have the reasonable tendency to promote the election
or defeat of a particular candidate or candidates, as long as the one appearing
in the billboard is someone who is running for an elective office and has already
filed his certificate of candidacy.
Third element: the act is done outside the campaign period
31 Chavez, supra. note 14 at 421.
23
At this point, it is worthy to define and distinguish two terminologies,
namely election period and campaign period. Election period refers to the
period of time necessary for conducting or administering an election.32 It covers
all stages of elections, including but not limited to the filing of the certificate of
candidacy, campaigning, election day itself, counting of votes, and proclamation
of the winning candidates. On the other hand, campaign period refers to the
period of active solicitation of votes.33 This is the period provided for by law
wherein candidates for elective public office may validly campaign for
themselves or against their opponents. This is the only time wherein the law
allows candidates, or any other person for that matter, to engage in an election
campaign or partisan political activity.
There is also a difference between election period and campaign period
with regard to length of time. The election period shall commence ninety (90)
days before the day of the election and shall end thirty (30) days after the day of
the election.34 On the other hand the campaign period is not uniform for it varies
depending on the elective position that the candidate is running for. For the
elective positions of President, Vice-President, and Senators, the campaign
period shall commence ninety (90) days before the day of the election.
32 Bernas, Joaquin, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY. Manila: Rex Book Store, 2009
33 Id.
34 PHIL. CONST., Article IX-C, § 9 and Republic Act No. 7166 § 5
24
However, for the elective positions of Members of the House of Representatives
and other elective provincial (i.e. Governor, Vice-Governor, Provincial Board
Members), city and municipal (i.e. Mayor, Vice-Mayor, City or Municipal
Councilors), the campaign period shall commence forty-five (45) days before
the day of election. Moreover, unlike in election period, the campaign period
does not extend after the day of the elections.35
Looking at the distinctions, it is manifest that the election period is
broader than the campaign period since the former can go beyond the casting
of ballots.36 Based on the same distinctions, it seems that all political activities
concerning and related to the election must be circumscribed within the election
period including election campaign and partisan political activities.37
B. LEGAL EFFECTS OF THE COMMISSION OF PREMATURE
CAMPAIGNING
If the commission of the prohibited act of premature campaigning is duly
proven, the consequence of the violation is two-fold: electoral and criminal.
35 Republic Act No. 7166, § 5 par. 2.
36 Bernas, supra. note 32.
37 Sponsorship Speech of Senator Gonzales, Transcript of Session Proceedings, August 8, 1991 as cited in Jonald R. Vergara, The Prohibition on Premature Campaigning v. The Definition of “Candidate” under Section 79(a) of the Omnibus Election Code (1999) (unpublished J.D. thesis, Ateneo de Manila University) (on file with the Professional Schools Library, Ateneo de Manila University).
25
As to the electoral aspect, Section 68 of the OEC provides that:
Section 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.38 (emphasis supplied)
Looking at this provision, any candidate who is duly proven to have
committed the prohibited act of premature campaigning will be either: [1]
disqualified from getting elected into office; or [2] if already elected, will be
removed from his elective office. Looking at this consequence in a practical
viewpoint, all the hardships that the candidate has hurdled just to campaign or
even get into office, not to mention all the money that he spent in his election
campaign, will be put to naught by a single infraction.
As to the criminal aspect, it is pertinent to take a look at the following
provisions:
Section 262. Other election offenses. - Violation of the provisions, or pertinent portions, of the following sections of this Code shall constitute election offenses: Sections 9, 18, 74, 75, 76, 80, 81, 82, 83, 84, 85, 86,
38 OMNIBUS ELECTION CODE § 68.
26
87, 88, 89, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106 107, 108, 109, 110, 111, 112, 122, 123, 127, 128, 129, 132, 134, 135, 145, 148, 150, 152, 172, 173, 174, 178, 180, 182, 184, 185, 186, 189, 190, 191, 192, 194, 195, 196, 197, 198, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 223, 229, 230, 231, 233, 234, 235, 236, 239 and 240.39 (emphasis supplied)
Section 263. Persons criminally liable. - The principals, accomplices, and accessories, as defined in the Revised Penal Code, shall be criminally liable for election offenses. If the one responsible be a political party or an entity, its president or head, the officials and employees of the same, performing duties connected with the offense committed and its members who may be principals, accomplices, or accessories shall be liable, in addition to the liability of such party or entity.40 (emphasis supplied)
Section 264. Penalties. - Any person found guilty of any election offense under this Code shall be punished with imprisonment of not less than one year but not more than six years and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. If he is a foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has been served. Any political party found guilty shall be sentenced to pay a fine of not less than ten thousand pesos, which shall be imposed upon such party after criminal action has been instituted in which their corresponding officials have been found guilty. xxx.41 (emphasis supplied)
This is the heavier aspect of the consequence in committing the
prohibited act of premature campaigning. The OEC deemed it as a criminal
offense and naturally, anyone who is convicted of such act is criminally liable.
The malfeasor is to serve his sentence of imprisonment of at least one year up
to six years without any chance of probation, meaning he will definitely spend
some time locked up in jail. Worse, the malfeasor can no longer hold any public
39 OMNIBUS ELECTION CODE §262.
40 Id., § 263.
41 Id., § 264.
27
office whatsoever. However, the most hurtful among the penalties is the
deprivation of the right of suffrage, a right granted by the Constitution itself.
C. FREEDOM OF EXPRESSION VERSUS THE PROSCRIPTION ON
PREMATURE CAMPAIGNING
A constitution is a set of rules that a set of people have made and agreed
upon for government—often codified as a written document—that enumerates
and limits the powers and functions of a political entity. These rules together
make up, i.e. constitute, what the entity is. In the case of countries and
autonomous regions of federal countries the term refers specifically to a
constitution defining the fundamental political principles, and establishing the
structure, procedures, powers and duties, of a government. By limiting the
government's own reach, most constitutions guarantee certain rights to the
people. The term constitution can be applied to any overall system of law that
defines the functioning of a government, including several uncodified historical
constitutions that existed before the development of modern codified
constitutions.42
In the local setting, the 1987 Philippine Constitution is considered as the
supreme law of the land. According to the principle of hierarchy of laws, no
42 Constitution, available at http://en.wikipedia.org/wiki/Constitution (last accessed 31 May 2010).
28
other law, statute, or regulation may be contrary to the Constitution. When the
courts declare a law to be inconsistent with the Constitution, the former shall be
void and the latter shall govern.43 Article III of the 1987 Constitution is known as
the Bill of Rights. This article enumerates the specific protections against State
power including the due process clause, equal protection clause, right against
self-incrimination, among others. However, this study is more concerned with
the right to free expression contained in Section 4 thereof. The provision states:
Section 4. 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.44
There are several reasons why freedom of expression is guaranteed by
the Constitution. “For some, freedom of expression is essential for the search of
truth. This is the marketplace idea which posits that the power of thought can be
tested by its acceptability in the competition of the market. Another reason
offered is that free expression is needed for democracy to work properly. The
citizen-critic has to be given the information and freedom required for him to be
able to perform his civic duty. Still another reason is a very personal one.
Freedom of expression promotes individual self-realization and self-
43 An Act to Ordain and Institute the Civil Code of the Philippines, Republic Act No. 386 (1950) [hereinafter CIVIL CODE OF THE PHILIPPINES], Art. 7(2).
44 PHIL. CONST. Article III § 4.
29
determination.”45 “The vital need in a constitutional democracy for freedom of
expression in undeniable whether as a means of assuring individual self-
fulfillment, of attaining the truth, of securing participation by the people in social
including political decision-making, and of maintaining the balance between
stability and change.”46 “The theory of freedom of expression involves more
than a technique for arriving at better social judgments through democratic
procedures. It comprehends a vision of society, a faith and a whole way of
life.”47
“Freedom of speech and of the press thus means something more than
the right to approve existing political beliefs or economic arrangements, to lend
support to official measures, to take refuge in the existing climate of opinion on
any matter of public consequence. So atrophied, the right becomes
meaningless. The right belongs as well, if not more, for those who question,
who do not conform, who differ. To paraphrase Justice Holmes, it is freedom for
the thought that he hate, no less than for the thought, that agrees with us.”48
The discussion above point to one conclusion: freedom of expression,
being a Constitutionally-vested right, is a strong one. The courts will certainly
nullify any law, statute or regulation that will attempt to infringe on such right. 45 Bernas, supra. note 32 at 231.
46 Emerson, Toward a General Theory of the First Amendment (1966) as cited in Gonzales v. COMELEC, No. L-27833, 27 SCRA 833, at 857.
47 Id., at 858.
48 Gonzales v. COMELEC, No. L-27833, 27 SCRA 833, at 857-858 (1969).
30
However, not all rights are absolute. Certain rights vested by the Constitution
have limitations, including the Constitutional guarantee of freedom of
expression. “It would be too much to insist that at all times and under all
circumstances it should remain unfettered and unrestrained.”49 “It is always
subject to the pervasive and dominant police power of the State and may be
lawfully abridged to serve appropriate and important public interests.”50
The Constitutionality of the prohibition on premature campaigning was
first assailed in the case of Gonzales v. COMELEC.51 In that case, the
petitioners contested Republic Act No. 4880 as unconstitutional because
according to them, the enforcement of the statute in controversy would
prejudice their basic rights such as their freedom of speech, freedom of
assembly, and their right to form associations or societies for purposes not
contrary to law.52 They then add that there is nothing in the spirit or intention of
the law that would legally justify its passage and enforcement whether for
reasons of public policy, public order, or morality, and that therefore the
enactment of the contested statute under the guise of regulation is but a clear
and simple abridgment of the above-stated Constitutional rights.53 Respondent
49 Id., at 858.
50 Imbong v. COMELEC, Nos. L-32432, L-32443, 35 SCRA 28 (1970).
51 Gonzales, supra. note 48.
52Id., at 850-851.
53 Id., at 851.
31
COMELEC, on the other hand, countered that the contested statute is a valid
exercise of police power of the state designed to insure a free, orderly, and
honest election by regulating conduct which Congress has determined harmful
because if unrestrained and carried for a long period before elections it
necessarily entails huge expenditures of funds on the part of the candidates,
precipitates violence and even deaths, results in the corruption of the
electorate, and inflicts direful consequences upon public interest as the vital
affairs of the country are sacrificed to purely partisan results.54
“The Supreme Court viewed the matter as a conflict between two highly
cherished values of Constitutional democracy: the freedom of expression
versus the safeguarding of the right to suffrage. In resolving this conflict, the
Supreme Court considered the latter as a limitation on the former.”55 Relying on
the clear and present danger rule, the Supreme Court agreed with respondent
and amicus curiae Lorenzo M. Tañada56 that there indeed is an existence of an
imminent and immediate danger of a substantive evil that justifies the passage
54 Id., at 854-855.
55 Jonald R. Vergara, The Prohibition on Premature Campaigning v. The Definition of “Candidate” under Section 79(a) of the Omnibus Election Code (1999) (unpublished J.D. thesis, Ateneo de Manila University) (on file with the Professional Schools Library, Ateneo de Manila University).
56 He justified the enactment of the contested statute by saying that there is a substantive evil of elections, whether for national or local officials, being debased and degraded by unrestricted campaigning, excess of partisanship, and undue concentration in politics, with the loss not only of efficiency in government, but of lives as well.
32
of the statute in controversy.57 In the separate opinion of Justice Sanchez, he
described the evil that exists, to wit:58
State authority here manifests itself in legislation intended as an answer to the strong public sentiment that politics is growing into a way of life, that political campaigns are becoming longer and more bitter. It is a result of legislative appraisal that protracted election campaign is the root of undesirable conditions. Bitter rivalries precipitate violence and deaths. Huge expenditures of funds give deserving but poor candidates slim chances of winning. They constitute an inducement to graft to winning candidates already in office in order to recoup campaign expenses. Handouts doled out by and expected from candidates corrupt the electorate. Official duties and affairs of state are neglected by incumbent officials desiring to run for re-election. The life and health of candidates and their followers are endangered. People’s energies are dissipated in political bickering and long drawn-out campaigns.
Indeed a drawn-out political campaign taxes the reservoir of patience and undermines respect of the electorate for democratic processes. Sustained and bilious political contests eat away even the veneer of civility among candidates and their followers and transplant brute force into the arena.59
It should be noted that in this case, only four concurred with the result
while seven other justices offered their dissenting opinions. The dissenters
argued that as worded in the law, prohibited discussion could cover the entire
spectrum of expression relating to candidates and political parties. Therefore,
every political discussion becomes suspect because it is difficult to draw a
dividing line between lawful and unlawful discussion. Nevertheless, for lack of
the necessary two-thirds vote to annul a statute, Republic Act No. 4880 was
57 Vergara, supra. note 55.
58 Bernas, supra. note 32.
59 Gonzales, supra. note 48 at 878.
33
declared to be constitutional.60 However, as noted by Justice Sanchez, “these
Justices preferred to leave the statute well alone in order to allow the courts of
justice ‘to hammer out the contours of the statute case by case.’”61
The following year, the ruling of the Supreme Court in Gonzales v.
COMELEC on campaign restrictions as valid regulations of freedom of speech
was reiterated in the case of Badoy v. COMELEC.62 In this case, petitioner
Anacleto Badoy assails the constitutionality of Sec. 12(F) of Republic Act No.
6132 as he alleges that the same denies: [1] individuals who are not
candidates, their freedom of speech and of the press; and [2] candidates the
right to speak and write, discuss and debate in favor of their candidacies or
against the candidacies of others.63 The assailed provision states that:
The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and periodicals which shall be known as COMELEC Space, and shall allocate this space equally and impartially among all candidates within the areas in which the newspapers are circulated. Outside of said COMELEC space, it shall be unlawful to print or publish, or cause to be printed or published, any advertisement, paid comment or paid article in furtherance of or in opposition to the candidacy of any person for delegate, or mentioning the name of any candidate and the fact of his candidacy, unless all the names of all other candidates in the district in which the candidate mentioned is running are also mentioned with equal prominence.64
60 Vergara, supra. note 55.
61 Bernas, supra. note 32, at 274.
62 Badoy, supra. note 15.
63 Id. at 287-288.
64 An Act Implementing Resolution of Both Houses Numbered Two as Amended by Resolution of Both Houses Numbered Four of the Congress of the Philippines Calling for a Constitutional Convention, providing for Proportional Representation therein and other Details Relating to the
34
The Supreme Court, with the majority speaking through Justice
Makasiar, held that the assailed provision is constitutional for it is not violative of
the people’s freedom of speech. The ponente then provided the purpose of
such limitation, to wit:
The evident purpose of this limitation, on the freedom of the candidate or his sympathizer to spend his own money for his candidacy alone and not for the furtherance of the candidacy of his opponents, is to give the poor candidates a fighting chance in the election. While it is true that the mere mention of the poor opponent in the same advertisement or paid article does not by itself alone engender perfect equality of chances, at least the chance of the poor candidate for victory is improved because thereby his name will be exposed to the reading public in the same article as that of the wealthy candidate.65
Moreover, against the background of so many other avenues of
expression open to the candidate, Justice Makasiar found the limitation on the
law “so narrow as not to effect the substance and vitality of his freedom of
expression itself.”66 Justice Makasiar went on to conclude:
Hence, consistent with our opinion expressed in the cases of Imbong v. COMELEC and Gonzales v. COMELEC, this slight limitation of the freedom of expression of the individual, whether candidate or not, as expressed in par. F of Sec. 12, is only one of the many devices employed by the law to prevent a clear and present danger of the perversion of prostitution of the electoral apparatus and of the denial of the equal protection of the laws.
Election of Delegates and to the Holding of the Constitutional Convention, Repealing for the Purpose Republic Act Four Thousand Nine Hundred Fourteen, and for other Purposes [hereinafter THE 1971 CONSTITUTIONAL CONVENTION ACT] Republic Act No. 6132 (1971).
65 Badoy, supra. note 15 at 290-291.
66 Bernas, supra. note 32 at 275.
35
The fears and apprehensions of petitioner concerning his liberty of expression in these two cases, applying the less stringent balancing-of-interests criterion, are far outweighed by the all important substantive interests of the State to preserve the purity of the ballot and to render more meaningful and real the guarantee of the equal protection of the laws.67
However, it should be noted that the decision in Badoy v. COMELEC
was not unanimous as five justices voted for the striking down of the contested
provision as unconstitutional. Nevertheless, since the required vote to declare a
statute unconstitutional was not met, the Supreme Court upheld the assailed
provision in conformity with Section 10 Article VIII of the Constitution in force
during that time.68
Looking at the two cases, it should be noted that both sides of the
divided Court, both in the cases of Gonzales v. COMELEC and Badoy v.
COMELEC, “eloquently defended the preferred position of the right of political
expression. Moreover, the side which ultimately favored curtailment found
solace in the argument that, after all, the limitation sought to be imposed was
‘so narrow as not to affect the substance and vitality of freedom of
expression.’”69
Although it may be argued that the contested provisions in the respective
cases of Gonzales v. COMELEC and Badoy v. COMELEC are not the same
67 Badoy, supra. note 15 at 297.
68 Id., at 301.
69 Bernas, supra. note 32 at 276.
36
since the former does limit the period of election campaign while the latter does
not, still the fact remains that such contested provisions were declared
constitutional for the same reason is of great significance. Both provisions of
law were justified as valid restrictions on the freedom of expression and of the
press. More importantly, the Supreme Court in both cases, recognized the
existence of imminent and immediate danger of a substantive evil which the
State has a right to protect, such as excessive partisanship, dishonesty,
corruption, and violence in Philippine national and local elections.70
To summarize this section, it must be said that the law protects the
people’s freedom of expression as it is a Constitutionally-vested right. However,
it should be pointed out that freedom of expression is not an absolute right and
that it may be limited or curtailed, provided that valid grounds are present.
When there are appropriate and important public interests that need to be
served, the pervasive, dominant, and all-encompassing police power of the
State, as one of its inherent powers, will step in to regulate whatever that needs
to be regulated. In the case of election campaign, free speech and freedom of
expression needs to be limited in order to insure free, orderly, honest, peaceful,
and credible elections. The abridgement of the freedoms of expression, press
and association as valid limitations in the State’s exercise of its police power is
to prevent a clear and present danger of the perversion or prostitution of the
electoral apparatus and of the denial of the equal protection of the laws.70 Vergara, supra. note 55.
37
CHAPTER THREE: THE DECRIMINALIZATION OF PREMATURE CAMPAIGNING
In the previous chapter, this study dedicated itself to the election offense
of premature campaigning including its definition and legal effects. It also
showed the necessity of prohibiting such act as it seeks to prevent a real and
substantive evil that needs to be curbed in order to purify the electoral process;
and as such it is deemed Constitutional. In this chapter, the study will look into
the legal developments with regard to the election offense of premature
campaigning – from its conception up to its decriminalization. It will look at the
key reasons for the decriminalization of this election offense such as the
changes in the definition of the term candidate as brought upon by the two
automation laws, namely the Election Modernization Act71 and its amendatory
law, the Amended Computerization Act of 200772 as well as the Supreme Court
decisions in Lanot v. COMELEC73 and Penera v. COMELEC.74 75
A. REPUBLIC ACT NO. 4880
71 Republic Act No. 8436 (1997).
72 Republic Act No. 9369 (2007).
73 Lanot, supra. note 11.
74 Penera, supra. note 12.
75 Penera (MR), supra. note 10.
38
As already provided in the previous chapter, Republic Act No. 4880 was
the first statute to introduce the prohibition on premature campaigning as it
amended Section 50 the Revised Election Code of 1947, the prevailing election
law that time. The amendment introduced Section 50-B, which provides that “It
is unlawful for any person whether or not a voter or candidate, or for any group
or association of persons, whether or not a political party or political committee,
to engage in an election campaign or partisan political activity except during the
period of one hundred and twenty days immediately preceding an election
involving a public office voted for at large and ninety days immediately
preceding an election for any other elective public office.” Paragraph 2 of the
same provision also provided for the definition of the term candidate, saying
that it has reference to “any person aspiring for or seeking an elective public
office, regardless of whether or not said person has already filed his certificate
of candidacy or has been nominated by any political party as its candidate.” At
this point, it should be noted that: [1] the law only allows such act within a
certain period; and [2] anyone who vies for any elective office is covered by the
prohibition, regardless of whether or not such person has already filed his
certificate of candidacy. Also, as discussed in the previous chapter, this is the
time when the validity of such prohibition was assailed on Constitutional
grounds with the Supreme Court deciding on its Constitutionality as held in
Gonzales v. COMELEC.76
76 Gonzales, supra. note 48.
39
B. BATAS PAMBANSA BLG. 881: THE OMNIBUS ELECTION CODE
Fast forward to 1985, the Batasang Pambansa enacted B.P. Blg. 881,
the OEC, which has become the main election law in the Philippines. This law
sustained the prohibition on premature campaigning and deemed it as an
election offense. As provided for in the previous chapter, anyone who commits
this act will face electoral77 and criminal78 repercussions. It also changed the
allowed period wherein the performance of election campaign and partisan
political activities may be done, which is within the campaign period provided for
by law. However, this law changed the definition of the term candidate. As
stated in Section 79(a) of the law, the term candidate refers to “any person
aspiring for or seeking and elective public office, who has filed a certificate of
candidacy by himself or through an accredited political party, aggroupment, or
coalition of parties.” As compared to the definition provided for by Republic Act
No. 4880, the OEC definition of the term candidate is more relaxed because it
only covers persons who have already filed their respective certificates of
candidacy. This is because before anyone gets prosecuted for the election
offense of premature campaigning, it is imperative that there is already an
77 Disqualification from the elections.
78 Imprisonment without possibility of probation, disqualification to hold public office and deprivation of the right to suffrage.
40
existing candidate through the filing of a certificate of candidacy because no
one can commit premature campaigning without having a candidate to
prematurely campaign for or against.
Upon enactment of this law, a certain legal loophole emerged:
candidates may “prematurely campaign” for themselves with impunity by not
submitting their respective certificates of candidacy until the last possible
moment. This last possible moment is provided for by Section 75 of the OEC,
which states:
Sec. 75. Filing and distribution of certificate of candidacy. - The certificate of candidacy shall be filed on any day from the commencement of the election period but not later than the day before the beginning of the campaign period: Provided, That in cases of postponement or failure of election under Sections 5 and 6 hereof, no additional certificate of candidacy shall be accepted except in cases of substitution of candidates as provided under Section 77 hereof xxx...79
(emphasis supplied)
A possible explanation of this relaxation is the basic principle in Criminal
Law: intent must be coupled with overt acts before one may be liable for an
offense. Applying this principle by analogy, it may be said that the prospective
candidate’s overt act in running for an elective office is his filing his certificate of
candidacy with the COMELEC. All the things that he does leading to his filing of
certificate of candidacy may be likened to a criminal’s intent which cannot be
punished. The effect of this is that prior to such filing, the prospective candidate
79 OMNIBUS ELECTION CODE § 75 par. 1.
41
is at liberty in performing partisan political activities for he can easily argue that
his acts do not constitute premature campaigning for there is no candidate to
speak of. However, despite this loophole, the legislators never deemed it
necessary to make amendments in the law. No one can tell as to why the
lawmakers did not introduce the necessary amendments to cover this loophole.
A possible speculation is that they never did so because of practical reasons:
they themselves will benefit from it!
C. REPUBLIC ACT NO. 8436: THE ELECTION MODERNIZATION ACT
Objectively speaking, the manual elections conducted since time
immemorial proved to be plagued with inefficiency. A very long time was
needed in order to determine the winners of the elections, not to mention the
widespread occurrence electoral frauds such as the infamous dagdag-bawas.
Discerning that these irregularities are no longer acceptable, the legislators
decided to make use of technology by enacting the Election Modernization Act
of 1997. Basically, this law provided the COMELEC the authority to implement
an automated system of elections in the country. It should be noted that the
OEC is still the governing election law of the country because the Election
Modernization Act only introduced certain amendments to the OEC. The former
law is still applicable as long as it is not inconsistent with the latter law.
42
One of the key changes of this law is found in Section 11. This provision
provides that:
Section 11. Official ballot. - The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election inspectors shall affix his/her signature to authenticate the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice President, Senators and candidates under the Party-List System as well as petitions for registration and/or manifestation to participate in the Party-List System shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens' arms of the Commission may assign watchers in the printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine, and that identification marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot.
43
The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter with a provision of additional four (4) ballots per precinct.80 (emphasis supplied)
The third paragraph of this provision substantially modified Section 75 of
the OEC. As seen in Section 11 of the Election Modernization Act, the deadline
for filing a prospective candidate’s certificate of candidacy is no longer the day
before the commencement of the campaign period. The new deadline shall not
be later than one-hundred twenty (120) days before the date of the election.
With this amendment, the period wherein the prospective candidates may
perform acts of “legal premature campaigning” as described in the previous
section was somehow shortened. This should have been a welcome
development in Philippine Election Law because it somehow curbed the
practice of “legal premature campaigning.” Since there is a substantial gap
between the deadline of the filing of certificates of candidacy and the start of the
election period as well as the campaign period, candidates are more
susceptible of committing the election offense of premature campaigning.
However, the legislators put this clause saying that “unlawful acts or omissions
applicable to a candidate shall take effect upon the start of the aforesaid
campaign period.” What are the effects of the enactment of this law with regard
80 ELECTION MODERNIZATION ACT § 11.
44
to the election offense of premature campaigning? In order to find out, there is a
need to look at the case of Lanot v. COMELEC.
D. LANOT V. COMELEC
In the case of Lanot v. COMELEC, petitioners Henry P. Lanot,81 et al.
filed a disqualification case against private respondent Vicente P. Eusebio. The
petitioners alleged that Eusebio engaged in an election campaign in various
forms on various occasions outside of the designated campaign period, such
as: [1] addressing a large group of people during a medical mission sponsored
by the Pasig City government; [2] uttering defamatory statements against Lanot;
[3] causing the publication of a press release predicting his victory; [4] installing
billboards, streamers, posters, and stickers printed with his surname across
Pasig City; and [5] distributing shoes to schoolchildren in Pasig public schools
to induce their parents to vote for him. In his answer, Eusebio denied
petitioners’ allegations and branded the petition as a harassment case. He
further stated that petitioners’ evidences are merely fabricated.82
In deciding this case, the Supreme Court agreed with the petitioners that
Eusebio indeed performed acts of election campaign or partisan political
81 During the case, Lanot was shot and killed by an unidentified gunman. He was substituted by Mario S. Raymundo
82 Lanot, supra. note 11 at 124.
45
activities outside of the campaign period.83 However, the Supreme Court did not
immediately hold Eusebio guilty of premature campaigning. In fact, the High
Tribunal exculpated Respondent Eusebio from liability!
It commented that the crux of the controversy is whether or not Eusebio
was already considered a candidate when he committed those acts before the
start of the campaign period.84 Upon examination of Section 11 of the Election
Modernization Act, the Supreme Court held that the only purpose for the early
filing of certificates of candidacy is to give ample time for the printing of official
ballots.85 It then shared an excerpt from the following deliberations of the
Bicameral Conference Committee, to wit:
SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform for local and national officials? THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present periods. SENATOR GONZALES. But the moment one files a certificate of candidacy, he’s already a candidate, and there are many prohibited acts on the part of candidate. THE CHAIRMAN (REP. TANJUATCO). Unless we. . . . SENATOR GONZALES. And you cannot say that the campaign period has not yet began [sic]. THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of the certificate will not bring about one’s being a candidate.
83 Id., at 148.
84 Id.
85 Id., at 150.
46
SENATOR GONZALES. If that’s a fact, the law cannot change a fact. THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of candidacy will not result in that official vacating his position, we can also provide that insofar he is concerned, election period or his being a candidate will not yet commence. Because here, the reason why we are doing an early filing is to afford enough time to prepare this machine readable ballots. So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will withdraw its proposal and will agree to the 120-day period provided in the Senate version. THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman. x x x x SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which apply immediately upon being a candidate? THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the COMELEC enough time to print the ballots, this provision does not intend to change the campaign periods as presently, or rather election periods as presently fixed by existing law. THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition. THE CHAIRMAN (REP. TANJUATCO). That’s right. THE ACTING CHAIRMAN (SEN. FERNAN). Okay. THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore because we are talking about the 120-day period before election as the last day of filing a certificate of candidacy, election period starts 120 days also. So that is election period already. But he will still not be considered as a candidate.86
(emphasis supplied)
According to the Supreme Court, the legislative intent of the Election
Modernization Act was to preserve the election periods as fixed by existing law
86 Minutes of Bicameral Conference Committee on Constitutional Amendments, Revision of Codes and Laws, 16 December 1997, as cited in Lanot, 507 SCRA at 150-151.
47
(meaning the OEC) prior to such statute and that one who files (his certificate of
candidacy) to meet the early deadline will not be considered as a candidate.87 In
short, those who filed their respective certificates of candidacy during the early
deadline will only be considered as “candidates for ballot-printing purposes
only” and nothing else.
The Supreme Court went on to say that:
Acts committed by Eusebio prior to his being a “candidate” on 23 March 2004, even if constituting election campaigning or partisan political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts are protected as part of freedom of expression of a citizen before he becomes a candidate for elective public office. Acts committed by Eusebio on or after 24 March 2004, or during the campaign period, are not covered by Section 80 which punishes only acts outside the campaign period.88
Lastly, the High Tribunal concluded:
Under Section 11 of RA 8436, Eusebio became a “candidate,” for purposes of Section 80 of the Omnibus Election Code, only on 23 March 2004, the last day for filing certificates of candidacy. Applying the facts - as found by Director Ladra and affirmed by the COMELEC First Division - to Section 11 of RA 8436, Eusebio clearly did not violate Section 80 of the Omnibus Election Code which requires the existence of a “candidate,” one who has filed his certificate of candidacy, during the commission of the questioned acts.89 (emphasis supplied)
As can be gleaned upon in this case, it became much more difficult to
commit the election offense of premature campaigning. As said in the case, the
87 Lanot, supra. note 11 at 152.
88 Id.
89 Id., at 156.
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only time when a person who filed his certificate of candidacy will be a
candidate susceptible of violating Section 80 of the OEC is on the day before
the start of the campaign period.
Looking at the result of this case, it seems that the effect of the Election
Modernization Act with regard to the election offense of premature campaigning
was to unreasonably narrow the scope of such offense so as to render Section
80 of the OEC useless and as good as repealed. However, when confronted by
such suggestion by respondent Eusebio, ponente Justice Antonio Carpio,
veered away from declaring Section 80 as such, to wit:
Eusebio asserts that Section 11 of RA 8436 exculpates him from any liability for the questioned acts. Eusebio points out that Section 11 contains the following proviso:
Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: x x x
Eusebio theorizes that since the questioned acts admittedly took place before the start of the campaign period, such acts are not “unlawful acts or omissions applicable to a candidate.”
We find no necessity to apply in the present case this proviso in Section 11 of RA 8436. Eusebio’s theory legalizes election campaigning or partisan political activities before the campaign period even if a person has already filed his certificate of candidacy based on the election periods under existing laws prior to RA 8436. Under Eusebio’s theory, Section 11 of RA 8436 punishes unlawful acts applicable to a candidate only if committed during the campaign period.
By definition, the election offense in Section 80 of the Omnibus Election Code cannot be committed during the campaign period. On the other hand, under Eusebio’s theory, unlawful acts applicable to a candidate cannot be committed outside of the campaign period. The net result is to make the election offense in Section 80 physically impossible to commit at any time. We shall leave this issue for some
49
other case in the future since the present case can be resolved without applying the proviso in Section 11 of RA 8436.90
Despite this evasion from Justice Carpio, then-Chief Justice Artemio
Panganiban gave a stronger position in his separate opinion. Firstly, he
disagreed with the majority decision in saying that persons who submit their
respective certificates of candidacy on the earlier deadline are not just
candidates for ballot-printing purposes. Second and more importantly, he
declared that Section 80 of the OEC was impliedly repealed by the Election
Modernization Act. In the last paragraphs of his separate opinion, he concluded:
It is my position that Director Ladra was correct in considering Eusebio to have become a candidate even for purposes of Section 80, when he filed his certificate of candidacy on December 29, 2003. This inference is very clear from Section 79, which has not been repealed -- expressly or impliedly -- by Republic Act 8436. Eusebio thus violated Section 80. Be that as it may, the net result is that the acts mentioned in Section 80 cannot be deemed unlawful at any time because of the clause in Section 11 of Republic Act 8436 -- that “unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period”; and the fact that by definition the unlawful acts in Section 80 of the OEC cannot be committed during the campaign period. In other words, the foregoing proviso has been impliedly repealed. Hence, there is no effective basis for disqualifying Eusebio.91 (emphasis supplied)
This is just the beginning of the end of the election offense of premature
campaigning.
90 Id.
91 Id. at 161.
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E. REPUBLIC ACT NO. 9369: THE AMENDED COMPUTERIZATION ACT
OF 2007
Even though the Election Modernization Act was enacted way back in
1997, the Philippines never experienced automated elections for a decade after
such statute’s enactment. Pressing for necessary changes to realize the goal of
automated elections, the legislature enacted the Amended Computerization Act
of 2007, which amended various provisions of the Election Modernization Act.
One of the key features of this law is found in its declaration of policy, which
says that “the State recognizes the mandate and authority of the Commission to
prescribe adoption and use of the most suitable technology of demonstrated
capability taking into account the situation prevailing in the area and the funds
available for the purpose.”92 With this, the COMELEC was able create the
necessary adjustments and because of which, finally automated elections were
held in the Philippines as seen in the 2008 Autonomous Region for Muslim
Mindanao Elections as well as the recently-concluded 2010 Local and National
Elections.
With regard to the election offense of premature campaigning, Section
13 of the Amended Computerization Act of 2007 amended Section 11 of the
Election Modernization Act. The provision reads:
92 AMENDED COMPUTERIZATION ACT OF 2007 § 1 par. 2.
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SEC. 13. Section 11 of republic Act No. 8436 is hereby amended to read as follows:
SEC.15. Official Ballot. - The Commission shall prescribe the format of the electronic display and/or the size and form of the official ballot, which shall contain the titles of the position to be filled and/or the proposition to be voted upon in an initiative, referendum or plebiscite. Where practicable, electronic displays must be constructed to present the names of all candidates for the same position in the same page or screen, otherwise, the electronic displays must be constructed to present the entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot options on all pages before completing his or her vote and to allow the voter to review and change all ballot choices prior to completing and casting his or her ballot. Under each position to be filled, the names of candidates shall be arranged alphabetically by surname and uniformly indicated using the same type size. The maiden or married name shall be listed in the official ballot, as preferred by the female candidate. Under each proposition to be vote upon, the choices should be uniformly indicated using the same font and size.
A fixed space where the chairman of the board of election inspector shall affix her/her signature to authenticate the official ballot shall be provided.
For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall effect only upon that start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or-controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy.
Political parties may hold political conventions to nominate their official candidate within thirty (30) days
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before the start of the period for filing certificate of candidacy.
With respect to a paper-based election system, the official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contact the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizen's arms of the Commission shall assign watchers in the printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee shall ensure that the necessary safeguards, such as, but not limited to, bar codes, holograms, color shifting ink, microprinting, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at the rate of one ballot for every registered voter with a provision of additional three ballots per precinct.93 (emphasis supplied)
Examining the amended provision, substantial changes were brought
upon by the amendment. Firstly, the deadline for filing certificates of candidacy
is no longer at least one-hundred twenty (120) days before the day of the
elections as the law gave the COMELEC sufficient authority to set the deadline
for such filing. More importantly, the legislators added a new clause embodied
in the second sentence of the third paragraph of the examined provision. It says
that any person who files his certificate of candidacy within the deadline set by
the COMELEC shall only be considered as a candidate at the start of the
93 AMENDED COMPUTERIZATION ACT OF 2007 § 13.
53
campaign period for which he filed his certificate of candidacy. This new clause
substantially altered the OEC definition of the term candidate; which is
someone who by himself or through some aggroupment, accredited political
party, or coalition of political parties, has filed his certificate of candidacy.
Definitely, there is a conflict between the OEC definition of a candidate
and the newly-introduced clause in the Amended Computerization Act of 2007.
How does this conflict affect the election offense of premature campaigning?
Jurisprudence in Penera v. COMELEC has the answer.
F. PENERA V. COMELEC – ORIGINAL CASE
In the case Penera v. COMELEC, petitioner Rosalinda A. Penera was a
mayoralty candidate in the Municipality of Sta. Monica, Surigao Del Norte.
Private respondent Edgar T. Andanar, the complainant and Penera’s opponent
in the elections, filed a disqualification case against her, claiming on the day
Penera filed her certificate of candidacy, she and her partymates went around
different barangays in Sta. Monica, announcing their candidacies and
requesting the people to vote for them on the day of the elections.94 In her
defense, petitioner Penera admitted that a motorcade did take place but she
explained that it was simply in accordance with the usual practice in nearby
cities and provinces, where the filing of certificates of candidacy was preceded 94 Penera, supra. note 12 at 622.
54
by a motorcade, which dispersed soon after the completion of such filing.95
During the pendency of the case in the COMELEC, the May 14, 2007 elections
took place and as a result thereof, Penera was proclaimed the duly elected
Mayor of Sta. Monica.96 Later on, the COMELEC issued its resolution, which
disqualified Penera from continuing as a mayoralty candidate for engaging in
premature campaigning, in violation of Sections 80 and 68 of the OEC.97
Despite Penera’s motion for reconsideration, the COMELEC remained firm in its
decision and thus, the petitioner elevated her case to the Supreme Court.
The Supreme Court through ponente Justice Minita Chico-Nazario
upheld petitioner Penera’s disqualification. The Supreme Court held that the
passage of the two automation laws, specifically Section 15 of the Election
Modernization Act, as amended, did not expressly nor impliedly repeal Section
80 of the OEC and that the two provisions are reconcilable. The High Tribunal
reconciled the seemingly conflicting provisions in this way:
True, that pursuant to Section 15 of Republic Act No. 8436, as amended, even after the filing of the COC but before the start of the campaign period, a person is not yet officially considered a candidate. Nevertheless, a person, upon the filing of his/her COC, already explicitly declares his/her intention to run as a candidate in the coming elections. The commission by such a person of any of the acts enumerated under Section 79(b) of the Omnibus Election Code (i.e., holding rallies or parades, making speeches, etc.) can, thus, be logically and reasonably construed as for the purpose of promoting his/her intended candidacy.
95 Id.
96 Id., at 623.
97 Id.
55
When the campaign period starts and said person proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing of his/her COC and prior to the campaign period, as the promotion of his/her election as a candidate, hence, constituting premature campaigning, for which he/she may be disqualified. Also, conversely, if said person, for any reason, withdraws his/her COC before the campaign period, then there is no point to view his/her acts prior to said period as acts for the promotion of his/her election as a candidate. In the latter case, there can be no premature campaigning as there is no candidate, whose disqualification may be sought, to begin with.98
-xxx-
A person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity. However, only after said person officially becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts constituting premature campaigning. Obviously, it is only at the start of the campaign period, when the person officially becomes a candidate, that the undue and iniquitous advantages of his/her prior acts, constituting premature campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only about to begin their election campaign, a candidate who had previously engaged in premature campaigning already enjoys an unfair headstart in promoting his/her candidacy.99 (emphasis supplied)
Moreover, the decision struck down any thoughts that Section 15 of the
Election Modernization Act, as amended, repealed Section 80 of the OEC as it
shuddered at the ill effects that it would bring to this country – the
decriminalization of premature campaigning. It reasoned out that such
decriminalization will negate the value and significance of having a campaign
98 Id., at 642-643
99 Id.,at 644.
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period before the conduct of elections. Any unscrupulous individual with the
deepest of campaign war chests could then afford to spend his/her resources to
promote his/her candidacy well ahead of everyone else. It then added “that
such is the very evil that the law seeks to prevent and that the lawmakers could
not have intended to cause such an absurd situation.”100
However, in deciding in this case the Supreme Court was sharply
divided, with eight justices siding with the majority decision and the other seven
siding on Justice Antonio Carpio’s dissenting opinion.101 As can be
remembered, it was also Justice Carpio who penned the majority decision in the
Lanot case. Using the Lanot doctrine, he rationalized his dissent in this manner:
Section 80 of the Omnibus Election Code is not applicable to the present case because the second element requires the existence of a “candidate.” The definition of a “candidate” in Section 79(a) of the Omnibus Election Code should be read together with the amended Section 15 of R.A. 8436. A “‘candidate’ refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment or coalition of parties.” However, it is no longer enough to merely file a certificate of candidacy for a person to be considered a candidate because “any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy.” Any person may thus file a certificate of candidacy on any day within the prescribed period for filing a certificate of candidacy yet that person shall be considered a candidate, for purposes of determining one’s possible violations of election laws, only during the campaign period. Indeed, there is no “election campaign” or “partisan political activity”designed to promote the election or defeat of a particular candidate or candidates to public office simply because there is no “candidate” to speak of prior to the start of the campaign period. Therefore, despite the filing of her certificate of candidacy, the law does not consider Penera a candidate at the time of the questioned motorcade which was
100 Penera, supra. note 12 at 646.
101 Panganiban, Artemio, Melo Welcomes E-Hope 2010. PHILIPPINE DAILY INQUIRER October 4, 2009.
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conducted a day before the start of the campaign period. In the same manner, when the law states that one is a candidate only at the start of the campaign period, determining whether any private person committed premature campaigning for a particular candidate can only be made once that prospective candidate actually files a certificate of candidacy.102 (emphasis supplied)
This dissent notwithstanding, the majority decision in this case reaffirmed
the existence of the election offense of premature campaigning. In effect, this
decision reversed the ruling in Lanot v. COMELEC. This is a victory for the
prohibition on premature campaigning because through this decision, the evils
sought to be prevented by the prohibition were still locked up in their cages, far
from defiling the purity and sanctity of the country’s electoral processes.
However, this victory proved to be short-lived.
G. PENERA V. COMELEC – RESOLUTION
Feeling aggrieved by the Supreme Court’s decision Penera filed a
motion for reconsideration, the resolution of which was rendered by the
Supreme Court a little over two months after the rendering of the original
decision. Via a 9-5 voting, the resolution elevated Justice Antonio Carpio’s
dissent as the majority decision, relegating Justice Minita Chico-Nazario’s then-
majority decision as a mere dissenting opinion. In the resolution, the Supreme
Court held that the assailed decision of Justice Nazario was contrary to the
102 Id., at 655-657.
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clear intent and letter of the law.103 The resolution explained that when
Congress amended the Election Modernization Act, it decided to expressly
incorporate the doctrine in Lanot v. COMELEC into law and it has done so by
specifically inserting it as the second sentence of the third paragraph of Section
15 of the Election Modernization Act, as amended,104 which cannot be annulled
by the Supreme Court except on the sole ground of its unconstitutionality. It
went on to say that the Lanot doctrine cannot be overturned unless and until
such sentence in the law is also repealed.105 The resolution even branded the
original decision as self-contradictory because it reversed the Lanot doctrine
while holding constitutional the second sentence of the third paragraph of
Section 15 of the Election Modernization Act, as amended. The resolution then
concluded:
Congress has laid down the law — a candidate is liable for election offenses only upon the start of the campaign period. This Court has no power to ignore the clear and express mandate of the law that “any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy.” Neither can this Court turn a blind eye to the express and clear language of the law that “any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period.”106
103 Penera (MR), supra. note 10 at 581.
104 Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy.
105 Penera (MR), supra. note 10 at 587.
106 Id., at 591.
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As a result, the disqualification of petitioner Penera was reversed and
she was allowed to continue her functions of the Sta. Monica, Surigao Del
Norte.
In issuing this resolution, the Supreme Court effectively held that Section
80 of the OEC is greatly inconsistent with Section 15 of the Election
Modernization Act, as amended, in the sense that there is substantial conflict
between the two provisions. Basic is the rule in statutory construction that when
there is a conflict between two laws, the later law shall prevail. Applying such
rule in this situation, Section 80 of the OEC must necessarily yield to Section 15
of the Election Modernization Act, as amended, via an implied repeal. With
Section 80 of the OEC out of the statute books, there is no more law that will
define and deem unlawful the commission of premature campaigning.
Therefore, as of 25 November 2009, the election offense of premature
campaigning is no more and such act is decriminalized!
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CHAPTER FOUR: THE EFFECTS OF DECRIMINALIZATION OF PREMATURE CAMPAIGNING
In the previous chapters, this study focused on the election offense of
premature campaigning; which included its definition, legal effects, reasonability
and Constitutionality. The study went on to analyze the different legal
developments concerning such election offense, from the time that it was
conceived through the enactment of Republic Act No. 4880 up to its demise that
was brought upon by the Supreme Court interpretation of Section 15 of the
Election Modernization Act, as amended, in the case of Penera v. COMELEC.
In this chapter, this study will focus on the effects of the decriminalization of the
election offense of premature campaigning. The first section will look into the
remaining election laws in the country that may possibly take the place of the
proscription on premature campaigning. The second section will look into the
recently-concluded May 2010 elections so as to determine such
decriminalization’s immediate effects to the campaign plans of the different
candidates, including the reaction of the voting populace to such changes.
A. ARE THERE OTHER ELECTION LAWS SUFFICIENT ENOUGH TO
TAKE THE PLACE OF THE PROHIBITION ON PREMATURE
CAMPAIGNING?
61
Since there is no more prohibition on premature campaigning, there is a
need to know whether or not there are still sufficient provisions that will uphold
the primary objectives of such prohibition – to level the playing field for
candidates of public office, to equalize the situation between popular or rich
candidates, on one hand, and lesser-known or poorer candidates, on the other,
by preventing the former from enjoying undue advantage in exposure and
publicity on account of their resources and popularity107 and to ensure a free,
orderly, honest, peaceful, and credible elections.108 The statute with the most
possibility of attaining such objectives is Republic Act No. 9006, otherwise
known as the Fair Election Act,109 especially its implementing rules and
regulations (IRR) for the May 2010 Elections, COMELEC Resolution No.
8758.110 These were enacted so that the State will be able to “supervise or
regulate the enjoyment or utilization of all franchises or permits for the operation
of media of communication or information to guarantee or ensure equal
opportunity for public service, including access to media time and space, and
the equitable right to reply, for public information campaigns and fora among
candidates and assure free, orderly, honest, peaceful and credible elections” 107 Chavez, supra. note 14 at 419-420.
108 Badoy, supra. note 15.
109 An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful, and Credible Elections through Fair Elections Practices [hereinafter FAIR ELECTION ACT], Republic Act No. 9006 (2001).
110 Rules and Regulations Implementing Republic Act No. 9006 otherwise known as the “Fair Election Act,” in relation to the May 10, 2010 Synchronized National and Local Elections, and Subsequent Elections, Comelec Resolution No. 8758 (2010).
62
and to “ensure that bona fide candidates for any public office shall be free from
any form of harassment and discrimination.”111
Looking at the provisions the IRR, two provisions stand out as possible
successors to the prohibition on premature campaigning: [1] Section 5 of the
IRR as culled from Section 13 of Republic Act No. 7166; and [2] Section 11(a)
of the IRR as culled from Section 6 of the Fair Election Act. Section 5 of the IRR
states:
SEC. 5: Authorized Expenses of Candidates and Political Parties – The aggregate amount that a candidate or registered political party may spend for election campaign shall be as follows:
a. For candidates for President and Vice-President - Ten pesos (Php10.00) for every voter;
b. For other candidates without any political party and without support from any political party - Five pesos (Php5.00) for every voter currently registered in the constituency where he filed his certificate of candidacy.
For other candidates with political party and with support from any political party - Three pesos (Php3.00) for every voter currently registered in the constituency where he filed his certificate of candidacy.
c. For Political Parties/ Organizations/ Coalitions - Five pesos (Php5.00) for every voter currently registered in the constituency or constituencies where they have official candidates.112
On the other hand, Section 11(a) of the IRR states that:
Sec. 11. Requirements and/or Limitations on the Use of Election Propaganda through Mass Media – All registered political parties, party-list groups, organizations, and/or coalitions thereof, and bona fide
111 FAIR ELECTION ACT, § 2.
112 Comelec Resolution No. 8758 § 5.
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candidates shall have equal access to media time and space for their election propaganda during the campaign period subject to the following requirements and/or limitations:
(a) Broadcast Election Propaganda
The duration of airtime that a candidate or registered political party, party-list group, organization and/or coalition thereof may use for their broadcast advertisements or election propaganda shall be, as follows:
For candidates / Registered Political parties for a National Elective Position – One hundred twenty (120) minutes in television or cable television, and one hundred eighty (180) minutes in radio, for all television or cable television networks, or all radio stations whether by purchase or donation, wherever located, per station;
For candidates / Registered Political parties for a Local Elective Position – Sixty (60) minutes in television or cable television, and ninety (90) minutes in radio, for all television or cable television networks, or all radio stations whether by purchase or donation, wherever located, per station;
Provided that election expenses for broadcast television propaganda shall comply with the election expenses limitation provided by law.
Provided, further, that a copy of the broadcast advertisement contract be furnished the Commission, thru the Education and Information Department, within five (5) days from contract signing and before airing of such advertisements.
Broadcast stations or entities shall allocate air time equally and impartially, through raffle, to political parties, party-list groups, organizations, and/or coalitions thereof, and bona fide candidates subject to the requirements and/or limitations on the use of media time for election propaganda purposes herein provided.
Where feasible, said broadcast stations or entities may provide common but separate time slots for the official candidates or registered political parties party-list groups, organizations, and/or coalitions thereof, on the one hand, and for the independent candidates, on the other.113 114
113 Id. § 11(a).
114 Paragraph (b) of Section 11 provides the guidelines on printed or published election propaganda. Since political advertisements through television and radio are relatively more expensive than those in print media, this study opted to put emphasis on political
64
These two provisions, in essence also limit the spending of candidates in
staging their campaign activities. In a way, these provisions also level the
playing field between the rich and poor candidates as the rich ones may only
use their vast resources to a limited extent. However, were these provisions
enough to curb the evil sought to be prevented by the prohibition on premature
campaigning? Fortunately, from the information gathered in the recently-
concluded May 2010 synchronized national and local elections, this study was
able to answer such question.
B. ELECTIONS WITHOUT THE PROHIBITION ON PREMATURE
CAMPAIGNING
Since the decriminalization of premature campaigning was finalized on
the 25th of November 2009, the date when the resolution on the case of Penera
v. COMELEC was rendered, the recently-concluded May 2010 elections was
the first electoral exercise where the nation felt the effects of such
decriminalization. This was also the first time wherein the two above-mentioned
provisions were tested as to whether or not they were enough to suppress the
evil sought to be prevented by the prohibition on premature campaigning.
advertisements through the former means.
65
In this section, this study will put emphasis on the presidential elections
as this was the highest elective position that was decided upon by the people.
The presidential race was also the most highly-publicized and closely covered
among the elective positions that were up for grabs in the recent elections.
Presidential political advertisements bombarded the television and radio
airwaves almost every minute: from jingles where people can hear one
candidate rap, to the catchier jingle wherein the people are asked if they have
already bathed in a sea of garbage. More importantly, it is of common
knowledge, probably bordering on judicial notice, that the candidates that
campaigned for this position spent the most resources in funding their
respective campaigns.
As gleaned from Section 5 of the IRR, a presidential candidate may only
spend up to ten pesos (Php10.00) for every voter. In the 2010 elections, there
were fifty million seven hundred twenty three thousand seven hundred thirty
three (50,723,733) voters.115 Using simple arithmetic, it can be seen that each
presidential candidate may only spend five hundred seven million two hundred
thirty seven thousand three hundred thirty pesos (Php507,237,330.00) for his
election campaign. To add to this figure, the presidential candidates were only
allowed to buy one hundred twenty (120) minutes of television advertisements
115 Election Statistics 2010 Automated National and Local Elections, available at http://www.comelec.gov.ph/statistics/2010natl_local/summary_by_region/national.html (last accessed 22 June 2010).
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and one hundred eighty (180) minutes of radio advertisements. Were the
presidential candidates able to comply with these requirements?
At first glance, it seems that everyone has complied with the above-
mentioned requirements. With regard to the limit on campaign expenditures, the
figures show that out of the whopping Php4.3 billion that were spent by the
candidates in national elective positions on advertisements, Php1.1 billion were
spent by presidential candidates.116 None of the presidential candidates went
over the above-mentioned campaign expenditure limit with regard to
advertisements, with the top two spenders spending about Php390.5 million
and Php334 million respectively (including those which are “paid for” and “paid
by” their respective political parties), which are very much below the mandated
limit.117 On the other hand, with regard to the limits on television and radio
advertisements, the candidates also complied with such requirement, with no
one going over the airtime limits. However, the candidates’ compliance with the
second requirement was blemished by reports that some “poor party-lists” were
used as instruments by such presidential candidates to circumvent such airtime
limits. “These ‘marginalized’ party-list groups have apparently fallen into the trap
of big-money politics where, in order to win, a party or candidate must
command name recall by burning loads of cash on air. Meanwhile, the top two
116 Che De Los Reyes, National Bets Splurge P4.3B, Local Bets P162M on Ads, available at http://pcij.org/stories/nat%E2%80%99l-bets-splurge-p4-3b-local-bets-p162m-on-ads/ (last accessed 22 June 2010).
117 Id.
67
candidates who have maxed out their airtime limits in the top networks have
been afforded a chance to ride piggyback on the unused airtime limits of these
party-list groups.”118 Nevertheless, on paper they were still able to comply with
such limits.
At first glance, it seems that Sections 6 and 11 of the IRR are more than
enough to suppress the evil sought to be prevented by the proscription on
premature campaigning. However, upon closer examination of these provisions,
it seems that there is an irreparable glitch that will render these provisions
nugatory. The said glitch is the use of the word candidate in the provisions,
meaning that such provisions will only apply upon the existence of a candidate.
As can be remembered, with the changes brought upon by the Election
Modernization Act, as amended, and the decision in Penera v. COMELEC, the
term “candidate” shall now refer to any person aspiring for or seeking an
elective public office who has filed his certificate of candidacy and who has not
died or withdrawn or otherwise disqualified before the start of the campaign
period for which he filed his certificate of candidacy; provided, that, unlawful
acts or omissions applicable to a candidate shall take effect only upon the start
of the aforesaid campaign period.119 The above-mentioned facts as to the
campaign expenditures as well as the airtime of the presidential candidates’
118 Che De Los Reyes, Top 2 Bets Piggyback Ads on “Poor” Party-List Groups, available at http://pcij.org/stories/top-2-bets-piggyback-ads-on-%E2%80%98poor%E2%80%99-party-list-groups/ (last accessed 22 June 2010).
119 Comelec Resolution No. 8758 § 1(2).
68
political advertisements are only the figures gathered from the time when they
have become candidates in the legal sense of the word. The figures from the
30th of November 2009 up to the 8th of February 2010, or the period spanning
from the deadline of the filing of certificates of candidacy up to the day before
the start of the campaign period, are a different story.
Data from media monitoring agency Nielsen Media also reveal that from
the 1st of November 2009 the 31st of January 2010, or three months before the
campaign period officially kicked off on the 9 th of February 2010, the total
advertising values for TV, radio, and print of just six of the 10 presidential
candidates have already amounted to more than P2 billion.120 For easier
reference, below is a table121 showing the total airtime availed of in the two
biggest television networks in the country by six presidential candidates from
the said period, which virtually is the same period between the deadline for filing
the certificates of candidacy and the start of the campaign period when these
presidential bets were deemed candidates in the legal sense of the word:
Presidential Candidates122
Ad duration (in minutes)ABS-CBN 2 GMA 7 TOTAL
Unico Hijo 218.75 136.75 355.5120 Che De Los Reyes, War on the Air Waves: 6 Top Bets Spend P1-B on “Pol-Ads” available at http://pcij.org/stories/war-on-the-air-waves-6-top-bets-spend-p1-b-on-%E2%80%98pol-ads%E2%80%99/ (last accessed 22 June 2010).
121 Id.
122 Their names are intentionally changed to codenames to hide their true identity.
69
Movie Star 96 44.5 140.5Transformer 248 127.5 375.5Bar Topnotcher 293.75 257.75 551.5The Brother 24.5 161.75 186.25Real Estate Tycoon 696 758.5 1454.5
Looking at these figures, no one even dared to comply with the 120-
minute airtime limit as provided by the Fair Election Act and its IRR, in fact; they
blatantly violated it! Moreover, if the campaign expenditure limit is taken into
consideration, the violations would be compounded. According to one television
network, “the prevailing “agency rates” for advocacy ads pre-campaign period,
just like for commercial ads, will cost a minimum of two hundred fifty thousand
pesos (Php250,000) for a single 30-second advertisement.”123 Using the figures
at the above-placed table and the prevailing rates, the one can easily see that
the these candidates spent as much as Php727.25 million in television
advertisements in the two above-mentioned television networks alone, with
other campaign expenditures such as out-of-town rallies, radio and print
advertisements, as well as the campaign expenditures incurred within the
campaign period yet to be added to such a whopping figure.
May these candidates be held liable for such unlawful acts defined by the
Fair Election Act as well as the IRR? Unfortunately, they cannot because of
Section 15 of the Election Modernization Act, as amended. As already
emphasized earlier, the controversial clauses of this provision state that “Any 123 De Los Reyes, supra. note 118.
70
person who files his certificate of candidacy within this period shall only be
considered as a candidate at the start of the campaign period for which he filed
his certificate of candidacy” and “unlawful acts or omissions applicable to a
candidate shall effect only upon that start of the aforesaid campaign period.”
These provisions certainly will block any attempt to make such presidential
candidates who violated Sections 5 and 11 of the IRR via a simple argument
that when they violated the law, there were still no candidates to speak of. As a
supporting statement, it may also be validly contended that such limits set up by
the IRR will only be effective once the campaign period begins, meaning when
they become full-fledged candidates in the legal sense of the word. In other
words, the limits set up by the IRR only regulate the activities of such
candidates within the campaign period and are powerless to regulate similar
activities outside of such period. Moreover, even if such acts of going over the
expenditure limits and airtime limits are indeed unlawful, they cannot be held
liable for such acts since unlawful acts or omissions applicable to a candidate
will only take effect upon the start of the campaign period. Such candidates are
only deemed to have violated the law if they violated it within the campaign
period and not when such violations were made outside of it.
This creates a very absurd situation wherein the law only protects a
certain period from abuses from candidates running for an elective office but
turns a blind eye on the period that is more susceptible to abuses. The law
71
should not be naïve so as to defeat its own purpose of thwarting the evil that will
destroy the purity and sanctity of the Philippine electoral processes. This can be
likened to a kingdom wherein within its walls, the economy is flourishing, with
people living within the gates of the kingdom happy and satisfied, to the point
that the kingdom is said to be experiencing its golden age – but outside its walls
lays a barren and desolate wasteland that is full of chaos and anarchy. This just
shows that there is no other law in the Philippine statute books that can replace
the value of the prohibition on premature campaigning. This is the reality of
Philippine Election Law upon the decriminalization of premature campaigning.
This cannot and should not be countenanced.
72
CHAPTER FIVE: CONCLUSION AND RECOMMENDATION
All throughout the study, the importance of the prohibition on premature
campaigning and defining it as an election offense with electoral and criminal
repercussions has been justified and proved to be an imperative tool in the
preservation of the purity and sanctity of the Philippine electoral process.
In the first chapter, the legal issue that this study intended to tackle was
presented. It was said that the Supreme Court in Penera v. COMELEC
effectively allowed the repeal of Section 80 of the OEC through the enactment
of the Election Modernization Act, as amended, and thus; it allowed the absurd
situation where someone who has already filed his certificate of candidacy with
the COMELEC is not considered a candidate until the start of the campaign
period for which he filed his certificate of candidacy. However, it will be only
upon further reading of the succeeding chapters that this legal issue was better
explained in an exhaustive manner.
In the second chapter, the study focused on the definition, effects, and
Constitutionality of the prohibition on premature campaigning. As can be
remembered, the objectives behind the proscription on premature campaigning
is: [1] to level the playing field for candidates of public office i.e. to equalize the
situation between popular or rich candidates, on one hand, and lesser-known or
poorer candidates, on the other, by preventing the former from enjoying undue
73
advantage in exposure and publicity on account of their resources and
popularity; and [2] to ensure a free, orderly, honest, peaceful, and credible
elections. By seeking for these objectives, the existing evil, which is the
perversion or prostitution of the electoral apparatus and of the denial of the
equal protection of the laws.
In the third chapter, the study showed the legal developments that were
the proximate causes of the decriminalization of the election offense of
premature campaigning. Certain clauses in Section 15 of the Election
Modernization Act, as amended, provide that persons who file their certificates
of candidacy shall only be considered as candidates at the start of the
campaign period for which he filed his certificate of candidacy. It also provided
that unlawful acts or omissions applicable to a candidate shall only take effect
upon the start of the aforesaid campaign period. Since Section 80 of the OEC
which prohibits premature campaigning naturally requires the existence of the
candidate and at the same time, that the prohibited acts are done outside of the
campaign period, it would naturally mean that no one can ever commit the said
election offense. This is grounded primarily on the premise that despite
submission of a certificate of candidacy, which may be likened to an overt act of
the intention to run for public office, one cannot be considered a candidate until
the campaign period begins. This is the crux of the legal issue presented in this
study. This glaring inconsistency became the subject of numerous
74
controversies and finally, with the resolution of Penera v. COMELEC, the
election offense of premature campaigning was scraped off of the Philippine
Statute Books – a very dark day in Philippine election law indeed!
In the fourth chapter, the study, admitting that premature campaigning
has been officially decriminalized by the resolution in Penera v. COMELEC,
explored whether or not there are still possible safeguards among the remaining
election laws that will effectively curb the evil sought to be prevented by the
prohibition on premature campaigning. At first, it was thought of that Sections 5
and 11 of the IRR of the Fair Election Act would suffice but upon further
examination, such provisions only provide protection from abuse within the
campaign period and do not extend such protection outside of it. Ultimately, this
chapter showed that no other provision may extend its protection so as to
prevent the evil thwarted by the prohibition on premature campaigning and
because of this; such rampant abuses brought about by the said evil was
experienced in the recently-concluded May 2010 elections.
In this final chapter, this study shall present the conclusion that the
prohibition on premature campaigning as provided for in Section 80 of the OEC
is an integral part of the system of election laws in the Philippines. Also, a
recommendation as to how such provision will be revived in the statute books
shall also be presented.
75
A. CONCLUSION
Despite the innovation from manual to automated elections, the
prohibition on premature campaigning should remain and should still constitute
an election offense warranting electoral and criminal ramifications against those
who violate it. The recent move to adopt an automated system of elections
should not render nugatory Section 80 of the OEC and thus, decriminalizing
such act. “Whether the election would be held under the manual or the
automated system, the need for prohibiting premature campaigning – to level
the playing field between the popular or rich candidates, on one hand, and the
lesser-known or poorer candidates, on the other, by allowing them to campaign
only within the same limited period – remains. The choice as to who among the
candidates will the voting public bestow the privilege of holding public office
should not be swayed by the shrewd conduct, verging on bad faith, of some
individuals who are able to spend resources to promote their candidacies in
advance of the period slated for campaign activities.”124 If not so, the value and
significance of having a campaign period will be utterly negated. “Therefore, a
person aspiring for public office may easily engage in election campaign or
partisan political activities to promote his candidacy – with impunity. All he
124 Penera (MR), supra. note 10 at 604-605.
76
needs to have is a very deep campaign war chest to be able to carry out his
shrewd activity.”125
As already adverted to many times in this study, the controversial
clauses in Section 15 of the Election Modernization Act, as amended, are the
causes of the problem at hand. These clauses limit the effectivity of election
offenses within the campaign period. Although such clauses have little or no
effect to other election offenses, it dealt a fatal blow to the election offense on
premature campaigning. This is primarily because this election offense anchors
itself on the fact that the violators thereof do the prohibited acts outside of the
campaign period, unlike the other election offenses wherein it is immaterial
whether the violators perform the prohibited acts inside the campaign period or
outside of it.
As already gleaned upon in the Bicameral Conference Committee
concerning the Election Modernization Act,126 the legislators did not intend to
change the election period as well as the campaign period as fixed in the OEC.
Therefore, persons who submit their certificates of candidacy on the earlier
deadline should respect the periods fixed in the OEC. They should only start
performing election campaign or partisan political activities upon the
commencement of the campaign period.
125 Id., at 605.
126 See note 85.
77
While it is true that the purpose behind the earlier deadline is merely to
give the COMELEC ample time in the printing of the ballots to be used in the
automated elections and thus, persons who file their certificates of candidacy
on the earlier deadline are only candidates “for ballot-printing purposes” and not
in the fullest sense of the word; still this is not sufficient leeway for such persons
to desecrate the purity and sanctity of the electoral processes by engaging in
election campaign or partisan political activities within the period encompassing
the deadline of the submission of certificates of candidacy up to the day before
the start of the campaign period. Did the Congress in enacting the Election
Modernization Act, as amended by the Amended Computerization Act of 2007,
intend to abolish or repeal Section 80 of the OEC that prohibits election
campaigns before the start of the campaign period? It did not. Section 80
remains in the statute books and the Election Modernization Act, as amended,
did not, directly or indirectly, touch it.127 Congress could not be presumed to
have written a ridiculous rule. It is safe to assume that, in enacting the Election
Modernization Act, as amended, Congress did not intend to decriminalize illegal
acts that candidates and non-candidates alike could commit prior to the
campaign period.128
Therefore, it is concluded that the election offense of premature
campaigning contained in Section 80 of the OEC is still integral to Philippine
127 Penera (MR), supra. note 10 at 613.
128 Id., at 615.
78
election law and that the enactment of the Election Modernization Act and its
amendatory law, the Amended Computerization Act of 2007 should not be
allowed to remove the same from the statute books. To do so is to acquiesce to
the perversion and prostitution of the electoral apparatus and to virtually deny
the right to equal protection between the popular and rich candidates and the
less-popular and poor ones. Thus, there is a need of reviving Section 80 of the
OEC or the prohibition on premature campaigning.
B. RECOMMENDATION
At this point, it is again conceded that the crux of the controversy of the
legal issue in the seeming conflict between Section 15 of the Election
Modernization Act, as amended, and Section 80 of the OEC. Moreover, the
Supreme Court declared that the latter provision had been repealed by the
former. Thus, in order to revive Section 80 of the OEC, two alternative
recommendations are presented: [1] the further amendment of Section 15 of the
Election Modernization Act, as amended; and [2] the overturning of the
resolution in Penera v. COMELEC.
First Recommendation: Further Amendment of Section 15 of the Election
Modernization Act, as Amended by the Amended Computerization Act of 2007
79
This recommendation is quite radical. This will be likened to a catharsis
wherein the “bad” will be purged for the betterment of the “good.” As already
said, the problematic clauses in Section 15 of the Election Modernization Act,
as amended, are the following: [1] Any person who files his certificate of
candidacy within this period shall only be considered as a candidate at the start
of the campaign period for which he filed his certificate of candidacy; and [2]
unlawful acts or omissions applicable to a candidate shall effect only upon that
start of the aforesaid campaign period. The proposed amendment will only
cover the third paragraph of Section 15 and it will be simple and expedient:
remove the said clauses in the law. Aside from such removals, the amended
law should also contain a clause that will expressly state that notwithstanding
the early deadline in filing the certificates of candidacy, the prohibition on
premature campaigning still stands and violators will dealt with the law. The
amendment should look like this:
Section 1. – The third paragraph of Section 15 of the Election Modernization Act, as amended is hereby further amended to read as follows:
“For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election: Provided that; Any person who files his certificate of candidacy within this period shall be subject to the provisions of Section 80 of the Omnibus Election Code and should it be found that he violated such provision, the provisions of Sections 68, 262-269 of the Omnibus Election Code shall govern. Provided, finally; That any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or-controlled corporations, shall be considered ipso
80
factor resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy.” (emphasis on the amendments)
What are the legal effects of such an amendment aside from the revival
of the prohibition on premature campaigning? Basically, the definition of the
term “candidate” will be reverted to the original definition contained in Section
79(a), meaning any person aspiring for or seeking an elective public office, who
has filed a certificate of candidacy by himself or through an accredited political
party, aggroupment, or coalition of parties. The obvious downside is that there
will be a longer time wherein the candidates will be exposed to the commission
of premature campaigning and its repercussions should they violate it.
However, this should not be enough so as to invalidate such amendment on the
ground of unconstitutionality for being violative of the freedom of expression. As
already explained in the second chapter, the fears and apprehensions of the
candidates concerning their liberty of expression are far outweighed by the all
important substantive interests of the State “to preserve the purity of the ballot
and to render more meaningful and real the guarantee of the equal protection of
the laws.”129
Second Recommendation: Overturning of the Resolution in Penera v.
COMELEC
129 Badoy, supra. note 15 at 247.
81
This recommendation is the more conservative approach in reviving
Section 80 of the OEC. Basically, this will involve a reinterpretation of the
above-mentioned conflicting provisions so as to harmonize the two. The
Supreme Court, in resolving Penera v. COMELEC, may have hastily declared
the implied repeal of Section 80 of the OEC. Justice Chico-Nazario, in penning
the original decision of Penera v. COMELEC, shared words of enlightenment in
this aspect, to wit:
Well-settled is the rule in statutory construction that implied
repeals are disfavored. In order to effect a repeal by implication, the later statute must be so irreconcilably inconsistent and repugnant with the existing law that they cannot be made to reconcile and stand together. The clearest case possible must be made before the inference of implied repeal may be drawn, for inconsistency is never presumed. There must be a showing of repugnance clear and convincing in character. The language used in the later statute must be such as to render it irreconcilable with what had been formerly enacted. An inconsistency that falls short of that standard does not suffice. Courts of justice, when confronted with apparently conflicting statutes, should endeavor to reconcile the same instead of declaring outright the invalidity of one as against the other. Such alacrity should be avoided. The wise policy is for the judge to harmonize them if this is possible, bearing in mind that they are equally the handiwork of the same legislature, and so give effect to both while at the same time also according due respect to a coordinate department of the government. (emphasis supplied)130
With such enlightenment in mind, the reinterpretation and harmonization
of the two apparently-conflicting provisions should read as follows:
130 Penera, supra. note 12 at 640-641.
82
When Section 15 of the Election Modernization Act, as amended, provided that unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the campaign period, the Congress referred only to unlawful acts or omissions that could essentially be committed only during the campaign period. Election offenses that can only be committed outside of the campaign period, such as the prohibition on premature campaigning as provided for in Section 80 of the Omnibus Election Code, should not be deemed included. (emphasis supplied). 131
Actually, this reinterpretation and harmonization of Section 15 of the
Election Modernization Act, as amended and Section 80 of the OEC was culled
from the dissenting opinion of Justice Roberto Abad in the resolution of Penera
v. COMELEC. With this reinterpretation and harmonization in hand, there will be
no more resort to statutory construction as the majority opinion did in such
resolution of the case resulting in the obliteration of Section 80 of the OEC via
implied repeal because there is no more conflict between the provisions.
It must be kept in mind that “the freedom of expression has always
loomed large in the mind of the Court. As such, it would not be likely, therefore,
for the Court to hastily declare every expression tending to promote a person’s
chances in the elections as prohibited premature campaigning.”132 The law will
only step in should such expression tends to promote the clear and present
danger of the perversion or prostitution of the electoral apparatus and of the
denial of the equal protection of the laws.
131 Penera (MR), supra. note 10 at 614.
132 Penera (MR), supra. note 10 at 616.
83
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