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 the 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.
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.”
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.
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.
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.”
I provided the emphasis, btw.
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 its 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 …
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.
Having said that, however, Pilosopo Tasyo makes a good point.
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 bee brought up with the appropriate committees in Congress.
Small comfort, I guess.