On Premature Campaigning
05.06.2012 · by James Jimenez ·
in COMELEC
If someone tells you that the ad
he put out – or the tarps he strung across the street, or the placards he
nailed to trees – isn’t premature campaigning because he didn’t use the words
“VOTE FOR ME,” then he’s wrong. Any material that promotes the election or
defeat of a candidate is considered campaign material. The actual words used
are immaterial. After all, can a poster with a person’s name be any less a
promotion of him than a poster with his name and the words VOTE FOR ME? If
anything, that exhortation is quite redundant.
However, the offense of premature
campaigning is not defined only by the content of the materials, but more
importantly by [a] the character of the person either benefited or
disadvantaged by the materials, and [b] the timing of the release of those
materials.
The Character of the Character
The person being boosted – or
trashed – by the materials must be a candidate, first and foremost. If he isn’t
a candidate, then the materials – even with “VOTE FOR ME” prominently displayed
– will NOT be considered as being in the nature of campaign materials. It is
just free speech. Remember, anyone with money to burn can churn out posters,
tarps, streamers and flyers that praise him and his accomplishments, as a
matter of right.
A candidate, on the other hand,
has to accept reasonable limitations on his right of self-expression – and
self-promotion – in the greater interest of leveling 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.”
Sounds simple enough, til you
consider the definition of the designation “candidate.”
The Supreme Court, in a
Resolution dated November 25, 2009, said:
Section 79(a) of the Omnibus Election Code defines a “candidate” as
“any person aspiring for or seeking an elective public office, who has filed a
certificate of candidacy x x x.” The second sentence, third paragraph, Section
15 of RA 8436, as amended by Section 13 of RA 9369, provides that “[a]ny person
who files his certificate of candidacy within [the period for filing] shall
only be considered as a candidate at the start of the campaign period for which
he filed his certificate of candidacy.”
Okay then. In order to be called
a “candidate,” a person must have [a] filed a certificate of candidacy, and [b]
the campaign period for the election he’s running in must have started.
Now how many of these people, who
have started putting up ads and such, qualify? Zilch. For this reason alone, no
case can be made for premature campaigning against anyone at this time.
But it doesn’t end there. In
fact, it only gets trickier from here on out.
The Timing
Before going into this rather
tangetial discussion on the timing of the release of ads and posters, keep in
mind that under the Automation Law [RA 8436, as amended by RA 9369] the period
for the filing of certificates of candidacy starts and ends earlier than usual.
Thus, there are several weeks in between the last day of filing COCs and the
actual start of the campaign period. This is radically different from the
election calendar before automation when the last day for filing of COCs was
usually the day before the campaign period.
Because of this change, and
because of the language of the automation law, there has been a lot of question
about what candidates can and cannot do in that long interval between filing
their COCs and the start of the campaign period. This is the question the Court
sought to answer in Penera v. COMELEC.
In the main decision in Penera v.
COMELEC [GR181613, 11 September 2009] the Court essentially ruled that, while a
person officially becomes a “candidate” only at the start of the campaign
period, the filing of a COC makes explicit his intention to run for office.
Thus, even before the campaign period actually starts, acts like holding
rallies and putting up posters and such, “can be logically and reasonably as
for the purpose of promoting his/her intended candidacy.”
Thus, “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.
To simplify that even further,
what the Court was saying that once the campaign period starts, people who have
filed their COCs can be made accountable for “campaigning” activities that they
undertook during the long interval between filing COCs and the start of the
campaign period.
To visualize:
However, barely two months later,
the Supreme Court set aside this ruling [Penera v. COMELEC, GR181613, 25
November 2009].
According to the Court, the fact
that Congress wrote into the law that
“any unlawful act or omission applicable to a candidate shall take
effect only upon the start of the campaign period,” gave rise to inescapable and
logical result that those acts – “campaigning” included - are lawful.
“In layman’s language, this means
that a candidate is liable for an election offense only for acts done during
the campaign period, not before. The law is clear as daylight — any
election offense that may be committed by a candidate under any election law
cannot be committed before the start of the campaign period. In ruling that
Penera is liable for premature campaigning for partisan political acts before
the start of the campaigning, the assailed Decision ignores the clear and
express provision of the law.
The Decision rationalizes that a
candidate who commits premature campaigning can be disqualified or prosecuted
only after the start of the campaign period. This is not what the law says.
What the law says is “any unlawful act or omission applicable to a candidate
shall take effect only upon the start of the campaign period.” The
plain meaning of this provision is that the effective date when partisan
political acts become unlawful as to a candidate is when the campaign period
starts. Before the start of the campaign period, the same partisan political
acts are lawful. (provided the emphasis, btw.)
The law does not state, as the
assailed Decision asserts, that partisan political acts done by a candidate
before the campaign period are unlawful, but may be prosecuted only upon the
start of the campaign period. Neither does the law state that partisan
political acts done by a candidate before the campaign period are temporarily
lawful, but becomes unlawful upon the start of the campaign period. This is
clearly not the language of the law. Besides, such a law as envisioned in the
Decision, which defines a criminal act and curtails freedom of expression and
speech, would be void for vagueness.
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.”
As a result, it would appear that
in the interval between the last day for the filing of the COC and the start of
the campaign period, even those who have already filed their certificates of
candidacy won’t be liable for premature campaigning. I suppose the inevitable
question here is, did the Supreme Court not see this?
The forum for examining the
wisdom of the law, and enacting remedial measures, is not this Court but the
Legislature. This Court has no recourse but to apply a law that is as clear,
concise and express as the second sentence, and it’s immediately succeeding
proviso, as written in the third paragraph of Section 15 of RA 8436, as amended
by RA 9369.
Apparently, they did. By dropping
such a clear hint for Congress, the Court signified that its own misgivings
would not move it to go beyond the scope of its powers. This loophole was
created by law, one can imagine the Court saying. And it is the lawmakers who
have to plug it. In essence, this was the same dilemma that the COMELEC found
itself in back in 2009, and even now, almost two years later.
Back then, most candidates did
the honorable thing and the interval passed with fewer political ads and
posters than we were expecting, considering the carte blanche handed to them by the reconsideration of the Penera
decision. It remains to be seen however, if similar restraint will be exercised
beginning October 6, 2012.
In the meantime, we return to the
issue of adverts, posters, streamers and what-not, starting to clutter our
field of vision now.
In both the main decision and the
reconsideration of Penera, the Court consistently indicated that even acts
which are clearly partisan or self-promotional in nature, cannot be considered
“campaigning,” much less premature campaigning. They are therefore not illegal,
falling well within the ambit of free speech.
Unfortunately, these acts are the
very same ones that nearly everyone wants the COMELEC to do something about. At
the risk of the COMELEC being labeled “helpless,” as we so often are when it
comes to this topic, the fact of the matter remains that if something is legal,
then there really is nothing that can be done about it.
As far as I know, Congress ought
to already be aware of the existence of this loophole since notice of it came
directly from a co-equal branch of government. However, apart from the many
public pronouncements made by the COMELEC in 2009, these concerns have also been
brought up with the appropriate committees in Congress.
Small comfort, I guess.