There is no denying that even before the contenders filed their certificate of candidacy (COC) they have long campaigned through radio, print and TV ads. These were all done in the guise of “infomercials”. But just the same they all refer to the same banana. Supposedly the purpose of infomercials is to inform or create awareness among the listeners and viewers about issues that directly concern them. But the current version of infomercials is tainted with dark hidden agenda. People can’t pretend to be naïve with all these. The proliferation of “infomercials” during the election season is alarming for it shifted the balance of fair and honest elections to waste. It deprives those who are better yet not gifted with hefty bank accounts for they cannot afford to launch a long and super early campaign. This is not only unfair but also deceptive and Machiavellian. This is an explicit showing of support for oligarchy. We already know that our elections are all about money. And that it’s only a game exclusively for those who haves but then again we do not need to be reminded of it on a daily basis.
Applying how little Juan understands it, if one plans to run for public office and starts to appear on TV and other media few months before the election, you can’t help but wonder why start with the ads now? Why didn’t they do it two years ago? Why suddenly when election is fast approaching we start seeing their faces like permanent screensavers on our PCs? You can’t help but notice this patently unfair fact. These people are so desperate that they will stop at nothing just so they’ll get what they wanted. Take Villar, for example, who already spent hundreds of millions even before formally announcing his plans of running for the highest office of the land. This man scares the hell out of me. He epitomizes not the rags to riches success-story but the old corrupt, callous and oligarchic ascent to power.
Admittedly, while we think of all these as really “premature campaigning”, the law has, as always, assumed a more technical meaning. The same goes to what really makes a person an official candidate. Of course, there cannot be premature campaigning without a candidate and a campaign period specifically prescribed by law. I was in quandary like probably most of you as to what the law and the recent jurisprudence have to say regarding this matter. It is for this reason that I started scouting for some legal provisions and resources and what I am about to share with you is a rather interesting case.
As a starting point I would like us all to take a peek at the laws directly related to this matter and these are:
1.) 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 persons, 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.
2.) 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 xxx (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.
3.) SECTION 15 of Republic Act No. 8436, as amended by Republic Act No. 9369. Official Ballot.
xxxx 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 the start of the aforesaid campaign period:..
4.) SECTION 79. Definitions. - As used in this Code:
x x x x
(b) The term “election campaign” or “partisan political activity” refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate;
(2) 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;
(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.
And now the landmark decision of the Supreme Court in the case of Penera vs COMELEC which I’m sure will not fail to titillate the minds of those interested about dynamics of Philippine elections. Here, you will see how the Supreme Court flip flopped in its interpretation of the law. You will see how the majority suddenly disappeared and what was the dissenting opinion suddenly, after less than two months, became the better view.
PENERA vs COMELEC
The COMELEC’S Decision
The facts below were taken directly from the decision of the Supreme Court.
This case stemmed from the filing of a motion for disqualification against the petitioner Rosalinda A. Penera (Penera) as a candidate for the position of mayor of the Municipality of Sta. Monica, Surigao del Norte (Sta. Monica) in the 2007 Synchronized National and Local Elections. Penera and private respondent Edgar T. Andanar (Andanar) were mayoralty candidates in Sta. Monica during the 14 May 2007 elections.
Penera and private respondent Edgar T. Andanar (Andanar) were mayoralty candidates in Sta. Monica during the 14 May 2007 elections. The latter accused Penera and her political party of unlawfully engaging in election campaigning and partisan political activity prior to the commencement of the campaign period.
Chronological presentation of facts:
29 March 2007 – a day before the start of the authorized campaign period on 30 March 2007 – Penera and her partymates went around the different barangays in Sta. Monica, announcing their candidacies and requesting the people to vote for them on the day of the elections.
2 April 2007 - Andanar filed before the Office of the Regional Election Director (ORED), Caraga Region (Region XIII), a Petition for Disqualification against Penera.
19 April 2007 – Penera filed her answer arguing, citing the case of Barroso v. Ampig wherein the Court supposedly ruled that a motorcade held by candidates during the filing of their COCs was not a form of political campaigning.
14 May 2007 – election took place and Penera was declared the winner. The case for disqualification was still pending in the COMELEC head office, second division.
24 July 2007 – Penera was disqualified for engaging in premature campaigning, in violation of Sections 80 and 68 of the Omnibus Election Code. The decision was penned by Commissioner Nicodemo T. Ferrer (Ferrer), Second Division. Commissioner Rene V. Sarmiento dissented with the opinion of the two commissioners.
The COMELEC en banc upheld the second division and so as the Supreme Court in its first decision rendered on September 11, 2009.
The Supreme Court Decision
In the first decision, the majority agreed with the dissenters that one can only be considered a candidate when the following requisites are present: 1.) he/ she has already filed his COC, and 2.) at the commencement of the campaign period. Absent of any of them, one therefore cannot be considered a candidate pursuant to the provision of Sec 15 of RA 8436.
The disagreement lies in the interpretation and application. Although the majority agreed with the definition however they reasoned that upon the filing of his/ her COC, the prospective candidate 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 sec 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 his/ her intended candidacy. To stress its point the majority said that “when the campaign period arts 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 he promotion of his/ her election as a candidate, hence, constituting premature campaigning, for which he/ she ma 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.”
The opinion of the majority in the first decision though legally flawed I must admit is fair, sensible and appropriate. When one filed his candidacy, he/ she already made his intention known to the world that he/ she’s running for public office thus making speeches, posting banners, holding parades or rallies after he filed his COC and before the campaign period is in truth and in fact premature campaigning and undeniably he has created an undue advantage against the opposing candidate. He does all these acts precisely to advance and increase his chances of winning. What else would it be for? The often he’s seen the better.
On the other hand, the then minority which became now the new majority has the law on their side at least technically speaking. A person who filed his COC cannot be considered a candidate for all its intent and purposes under the law unless until the campaign period, thus suffice it to say premature campaigning has been rendered practically extinct under the new law. Therefore under the present jurisprudence, no person can be guilty of premature campaigning either before or after he filed his COC. Just perfect! So, brace yourself for the next succeeding elections you will see faces that will bore you to death.
The very act that I thought was unfair is now being given by the Supreme Courts its imprimatur. There is no stopping these people now from starting to post, flash, advertize, and bore us with their faces all year round. Just great!
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