Final Draft - John Paul C. Fadrigo

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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).

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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).

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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.

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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.

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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).

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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.

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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

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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).

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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

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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.

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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.

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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.

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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.

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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

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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.

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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).

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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.

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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.

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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

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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).

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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.

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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.

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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

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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).

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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.

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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.

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(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.

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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.

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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.

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          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?

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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).

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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).

66

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.

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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.

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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

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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.

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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.

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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.

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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.

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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

BIBLIOGRAPHY

Primary Sources

A. Constitution

1987 Philippine Constitution

B. Codes and Statutes

Batas Pambansa Blg. 881 (1985). The Omnibus Election Code of the Philippines.

Republic Act No. 180 (1947). The Revised Election Code.

Republic Act No. 386 (1950). An Act to Ordain and Institute the Civil Code of the Philippines [The Civil Code of the Philippines].

Republic Act No. 4880 (1967). An Act Amending Section 50 of the Revised Election Code.

Republic Act No. 6132 (1971). 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 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 [THE 1971 CONSTITUTIONAL CONVENTION ACT].

Republic Act. No. 7166 (1991). An Act Providing for A Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for other Purposes.

Republic Act. No. 8436 (1997). 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 [ELECTION MODERNIZATION ACT].

84

Republic Act. No. 9006 (2000). An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful, and Credible Elections Through Fair Election Practices. [FAIR ELECTIONS ACT].

Republic Act. No. 9369 (2007). 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” [AMENDED COMPUTERIZATION ACT OF 2007].

C. Philippine Cases

Gonzales v. Comelec, No. L-27833, 27 SCRA 835 (April 18, 1969).

Imbong v. Comelec, Nos. L-32432, L-32443, 35 SCRA 28 (September 11, 1970).

Badoy, Jr. v. Comelec, Nos. L-32546, L-32551, 35 SCRA 285 (October 17, 1970).

Chavez v. Comelec, G.R. No. 162777, 437 SCRA 415 (August 21, 2004).

Lanot v. Comelec, G.R. No. 164858, 507 SCRA 114 (November 16, 2006).

Penera v. Comelec, G.R. No. 181613, 599 SCRA 609 (September 11, 2009).

Penera v. Comelec (MR), G.R. No. 181613, 605 SCRA 575 (November 25, 2009).

D. Legislative Materials

Sponsorship Speech of Senator Gonzales, Transcript of Session Proceedings, August 8, 1991

85

Minutes of Bicameral Conference Committee on Constitutional Amendments, Revision of Codes and Law, as certified by Dir. Antonia P. Barros, Legislative Records and Archives, Service (December 16, 1997).

E. Implementing Rules and Regulations

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).

Rules and Regulations Implementing Republic Act No. 9006, Otherwise Known as the “Fair Election Practices Act,” in relation to the May 10, 2010 Synchronized National and Local Elections and Subsequent Elections. (2010).

Secondary SourcesA. Books

Bernas, Joaquin, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY. Manila: Rex Book Store, 2009.

Agpalo, Ruben, COMMENTS ON THE OMNIBUS ELECTION CODE. Manila: Rex Book Store, 2004.

De Leon, Hector S 7 De Leon, Hector S., Jr. THE LAW ON PUBLIC OFFICERS AND ELECTION LAW. Manila: Rex Book Store, 2008.

B. Newspaper Articles

Panganiban, Artemio. Melo Welcomes e-Hope 2010. PHILIPPINE DAILY INQUIRER. October 4, 2009.

Sison, Jose. Grounds for Disqualification. THE PHILIPPINE STAR. September 22, 2009.

C. Internet Sources

86

Aries Rufo, SC Decriminalizes Premature Campaigning, available at http://abs-cbnnews.com/nation/11/24/09/sc-decriminalizes-premature-campaigning (last accessed February 1, 2010).

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 11 April 2010).

Constitution, available at http://en.wikipedia.org/wiki/Constitution (last accessed 31 May 2010).

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).

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).

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).

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).

D. Thesis

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).