You’ve all seen posts like this – especially on Twitter: a picture of a politician handing out money, or violating minimum health protocols, or saying something patently wrong; accompanied by text that @-mentions COMELEC, Rowena Guanzon, and me, and disingenuously asks “eto? okay lang sa inyo?” Ad recently, with the promulgation of the campaigning rules, they pose the ‘killer question:’ “bawal magpa-selfie at magpakain, pero ito, pwede?”
The outrage isn’t fake – it IS outrageous. But it’s funny how they obviously think they did something with that post, when in reality, they’ve just once again harped on something that’s already been objected to and explained repeatedly. But sure, let’s do that again.
Hindi ok yan
First off, let’s establish that these objectionable behaviors like vote buying etc., are NOT OK. And under ideal circumstances, openly performing these acts should be political suicide for any candidate. But these are far from ideal circumstances.
First, there is a shortage of people on and off social media who would criticize their own candidate for doing something other candidates are doing. Basically, if someone else does it, you scream bloody murder, but when your candidate does the same thing, you meet it with either silence or some half-baked justification. This tendency of supporters only serves to reinforce the politicians’ belief that these objectionable acts are, in fact, profitable for them. Who’s gonna take your crusade against vote buying or way-too-early campaigning seriously if you excuse it for your own?
Second, there is, in fact, a glaring loophole in the law that makes these objectionable acts NOT PUNISHABLE BY LAW. And for those who don’t get it, “NOT PUNISHABLE BY LAW” doesn’t mean it’s okay to do; it simply means that the law does not provide a punishment for it. This loophole is the definition of what an official candidate is, under Republic Act 9369.
Under that law, a person who files a Certificate of Candidacy — basically EVERYONE presenting themselves as candidates for the coming elections — is NOT considered an official candidate until the start of the campaign period. So everything they do now, before the start of the campaign period, cannot be considered acts of an official candidate, and therefore exist outside the scope of the COMELEC’s authority to regulate.
Here’s the provision. I highlighted the stuff that’s relevant.
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 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. “Political parties may hold political conventions to nominate their official candidate within thirty (30) days 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.”
This definition means that election laws don’t apply to these people yet. They act like candidates, everyone knows they are candidates, but the law still considers them NOT CANDIDATES. Therefore, all those things they do that we naturally consider WRONG for candidates to do, they do as if they were private citizens.
Put it this way: if you wanna give money away to your friends and supporters, can the law stop you? No, it can’t, because what you’re doing isn’t prohibited by law. It’s fiscally irresponsible, sure, but it isn’t bawal sa batas. The same thing applies to people who have filed COCs but aren’t yet considered by law to be “official candidates.” Despite us knowing that they aren’t just private citizens anymore, as far as the law is concerned, there is no difference you and them; thus your freedoms are theirs as well.
But just to be crystal clear: hindi pa rin ok ang ginagawa nila.
So, ano na?
At this point, the question becomes “what are you gonna do about it?” In a word, nothing. There is nothing COMELEC can do about it because – as I said – the law allows it. The Supreme Court itself, in Penera v. COMELEC all but threw up its hands and said that the solution to this loophole lies with Congress itself. So, if the Supreme Court can’t do anything about it.
Here’s what the Court said in Penera v. COMELEC (G.R. No. 181613, 25 November 2009)
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.” 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.
Having said that, however, the COMELEC has always brought this matter up with legislators. And to be perfectly fair, there are some pending bills that would close up the loophole. Noteworthy is the bill, filed in the senate, that seeks to define the start of official candidacy as the moment of filing a COC, rather than the start of the campaign period. Still, no joy.
How it’s going
So that’s where we’re at now. We know these acts are objectionable, but the law makes them unpunishable. And to be honest, I am getting tired of the pass we give legislators. “They’ll never pass these amendments,” we whine, taking for granted that our elected officials are incapable of seeing beyond their selfish motives.
The more we repeat that nonsense, however, the more true it becomes. As voters, we need to reject that idea. We need to demand from our candidates that they fix the problematic laws even if they happen to benefit from them. Until we do that, all of the whining about how COMELEC allows premature campaigning and the giving away of money before the start of elections is just so much barking up the wrong tree.