Penera vs. Comelec and Andanar: Premature Campaigning

September 19, 2009

The Supreme Court has strengthened the prohibition on premature campaigning and has disqualified the Mayor of Sta. Monica, Surigao del Norte by reason thereof. In its Decision promulgated last September 11, 2009, the High Court dismissed the petition for Certiorari filed by petitioner Rosalinda A. Penera and upheld the Resolution of the COMELEC’s Second Division and En Banc respectively, finding her guilty of premature campaigning for violating Section 80 of the Omnibus Election Code during the 2007 elections.

Penera and private respondent Edgar T. Andanar were mayoralty candidates in Sta. Monica during the 14 May 2007 elections. On 2 April 2007, Andanar filed before the Office of the Regional Election Director (ORED), Caraga Region (Region XIII), a Petition for Disqualification against Penera, as well as the candidates for Vice-Mayor and Sangguniang Bayan who belonged to her political party, for unlawfully engaging in election campaigning and partisan political activity prior to the commencement of the campaign period. Andanar claimed that on 29 March 2007 – a day before the start of the authorized campaign period on 30 March 2007 – Penera and her partymates went around the different barangays in Sta. Monica, announcing their candidacies and requesting the people to vote for them on the day of the elections.

Penera alone filed an Answer denying the charges but admitted that a motorcade did take place and that it was simply in accordance with the usual practice in nearby cities and provinces, where the filing of certificates of candidacy (COCs) was preceded by a motorcade, which dispersed soon after the completion of such filing. The COMELEC disqualified Penera but absolved the other candidates from Penera’s party from violation of section 80 and 68 of the Omnibus Election Code.

In denying Penera’s petition, the Supreme Court, through Associate Justice Minita V. Chico-Nazario, found that Penera and her witnesses admitted that the vehicles, consisting of two jeepneys and ten motorcycles, were festooned with multi-colored balloons; the motorcade went around three barangays in Sta. Monica; and Penera and her partymates waved their hands and threw sweet candies to the crowd. Thus, for violating Section 80 of the Omnibus Election Code, proscribing election campaign or partisan political activity outside the campaign period, Penera was disqualified from holding the office of Mayor of Sta. Monica.

As to the questions of law involved in the case, the Court tackled the legal issue that Section 15 of Republic Act No. 8436, as amended by Republic Act No. 9369, provides a new definition of the term “candidate,” as a result of which, premature campaigning may no longer be committed and that because of the said provision, the prohibited act of premature campaigning in Section 80 of the Omnibus Election Code, is practically impossible to commit at any time.

In this regard, the Court disagreed, declaring that “there is no absolute and irreconcilable incompatibility between Section 15 of Republic Act No. 8436, as amended, and Section 80 of the Omnibus Election Code, which defines the prohibited act of premature campaigning. It is possible to harmonize and reconcile these two provisions and, thus, give effect to both.”

The Court held, further, that:

“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.

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.

Third, in connection with the preceding discussion, the line in Section 15 of Republic Act No. 8436, as amended, which provides that “any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period,” does not mean that the acts constituting premature campaigning can only be committed, for which the offender may be disqualified, during the campaign period.  Contrary to the pronouncement in the dissent, nowhere in the said proviso was it stated that campaigning before the start of the campaign period is lawful, such that the offender may freely carry out the same with impunity.

As previously established, 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.

As can be gleaned from the foregoing disquisition, harmony in the provisions of Sections 80 and 79 of the Omnibus Election Code, as well as Section 15 of Republic Act No. 8436, as amended, is not only very possible, but in fact desirable, necessary and consistent with the legislative intent and policy of the law. “

Given this Decision, however, it is not yet clear what action the COMELEC will take with regard to the numerous infomercials made by possible candidates in the May 2010 elections. Moreover, there is a possibility that the Court may reconsider its Decision because of the close 8-7 vote among the Justices.

Read the full Decision here. (from sc.judiciary.gov.ph)

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