Martial Law in Maguindanao: A Commentary on Proclamation No. 1959

“Learning is always rebellion...
Every bit of new truth discovered is revolutionary
to what was believed before.”
- Margaret Lee Runbeck

Even with the lifting of martial law in Maguindanao, the Supreme Court should rule on the constitutionality of Proclamation 1959.[1] According to the Constitution,[2] “the Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.” Petitions are now pending before the High Court, and the cases should not be considered moot and academic. The “moot and academic” principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.[3] Clearly, the issue on martial law involves paramount public interest.

To avoid any repetition in the future, there is therefore a need to determine the sufficiency of the factual basis of the proclamation of martial law in Maguindanao. The Constitution provides that the President can place the Philippines or any part thereof under martial law in case of invasion or rebellion, when the public safety requires it.[4] Thus, martial law depends on two factual bases: (1) the existence of invasion or rebellion, and (2) the requirements of public safety.[5]

Public Safety

It is without any doubt that the recent events in Maguindanao involved public safety. The massacre of 57 people, including 30 journalists, last November 23,[6] has caused some chaos in the province. Intelligence reports say that supporters of the Ampatuan clan, who are suspects to the killings, have been massing up armed men to block government from enforcing the law.

The Maguindanao Massacre is considered the worst election-related violence in the country’s history.[7] Indeed, the province has been at the center of several election-related political controversies in the past. In 2004, a person believed to be Comelec commissioner Virgilio Garcillano, in the controversial “Hello Garci” recordings, was heard saying that Maguindanao would not be “much of a problem” for President Arroyo. This turned out to be prophetic as Arroyo won handsomely in the province over opponent Fernando Poe Jr., who even obtained a statistically-improbable 0 votes in some of the municipalities in the province.[8] In 2007, the administration party-backed coalition’s senatorial candidates swept their counterparts in the opposition, 12-0.[9] Again, some opposition candidates got statistically-improbable 0 votes.

It may thus be argued that politics may be the root of all these election-related violence. The Ampatuans, like most political clans in Mindanao, are said to have their own private army numbering to the thousands and these men are ready to serve and protect the interests of the Ampatuans. According to the Commission on Human Rights, at least 200 other people have been killed by the private army.[10] Reports also say that the Ampatuan private army has sought the help of the Moro-Islamic Liberation Front (MILF),[11] an Islamic military group claiming belligerency against the Government of the Philippines. Indeed, the Maguindanao massacre has caused some serious concerns regarding public safety in that area.

Invasion or Rebellion

Having established that the “public safety” requirement has been met, the more highly-debated issue is with regard whether or not there existed an invasion or rebellion. Invasion is not defined by any existing law in the Philippines. However, Bouvier’s Law Dictionary[12] defines invasion as “the entry of a country by a public enemy, making war.” It is clear that invasion cannot be said to have existed in Maguindanao or in any part of the country for that matter.

On the other hand, rebellion can be found in the Revised Penal Code[13] and is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.[14] Rebellion has always been understood to be a crime of masses and a vast movement of men seeking to change the established order.[15]

Supporters of martial law have argued that the rebellion contemplated as a basis to declare martial is not the kind of rebellion as defined by the Revised Penal Code. According to Rep. Teodoro Locsin, “rebellion here is not an exclusive reference to a particular provision of a particular law; but to a wide yet unmistakable, general but not indiscriminate allusion to a state of affairs that has deteriorated beyond lawless violence, beyond a state of emergency, to an obstinate refusal to discharge properly the functions of civil government in the area, by, of all people, the duly constituted but now obstructive authorities therein.”[16] Even highly-regarded constitutionalist Fr. Joaquin Bernas opines that rebellion as a criminal act defined in the Penal Code is not the same as rebellion for constitutional law purposes. He says that “the requirement of rebellion for purposes of constitutional law is satisfied if there exists an armed force whose activities have the effect of preventing the government from implementing its laws in any part of the Philippines.”[17]

This author begs to disagree. While it is true that the Revised Penal Code does not defined “invasion”, it does not mean that the same should not be used as a basis to define “rebellion.” Constitutional law and criminal law may be two different subjects, but clearly principles of these two, just like other fields of law, often intertwine. It is not uncommon for legal terms to appear in both the 1987 Philippine Constitution and the Revised Penal Code and reference to both should be made for a more thorough understanding on the subject. For example, the term reclusion perpetua is used several times in the Constitution.[18] Under, Article III, Section 13, “all persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable xxx.” Nowhere in the Constitution does it define reclusion perpetua. However, Article 27 of the Revised Penal Code does.[19] Does the Constitution then refer to another definition other than that of the Revised Penal Code? I don’t think so.

Furthermore, Proclamation No. 1959 itself, refers to R.A. No. 6968 (albeit erroneously cited as R.A. No. 6986[20] – another Malacañang blunder), the amendatory law of the Revised Penal Code provision on rebellion. The third whereas clause in the proclamation states that “the crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of xxx depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”

Thus, it is now high time to determine whether rebellion really existed in Maguindanao. Based on the deliberations of the Constitutional Commission, the rebellion contemplated in Article VII, Section 18 is actual rebellion,[21] not just imminent. This is a result of the fear in the minds of Filipinos that the Marcos’ martial law might repeat itself in the future.

In a press briefing held at Malacañang, DOJ Secretary Agnes Devanadera said that a rebellion was “looming” in Maguindanao.[22] A looming rebellion is most definitely not an actual rebellion. Maj. Gen. Gaudencio Pangilinan, AFP deputy chief of staff for operations, said that there were indications that violence is imminent.[23] Again, an imminent rebellion is not an actual rebellion. Finally, Executive Secretary Eduardo Ermita conceded there was no actual rebellion saying that “there was no actual rebellion going on but all indications on the ground indicated inability of authorities to undertake their duties.”[24]

To make it clear, the massing up of armed groups is not actual rebellion. There is no actual uprising or taking up of arms against the government. Another whereas clause in Proclamation No. 1959 states that “heavily armed groups in the province of Maguindanao have established positions to resist government troops.” It cannot be said how the positioning of these armed groups constitute actual rebellion. To resist means to defend against. Thus, the armed groups were clearly not on the offensive, which is indicative of an actual rebellion. It could very well be said that they were in a defensive position.

Nevertheless, Devanadera and Ermita both referred to the absence of local court justices who have the power to issue search warrants or warrants of arrest that the military could use in their local operations against the perpetrators of the Maguindanao massacre as an indication that the duly-constituted authorities have been deprived of their powers or prerogatives.[25] The Proclamation stated that “local judicial system and other government mechanisms in the province are not functioning.” However, these were quickly refuted by Supreme Court spokesman Midas Marquez who said that the statement “that the judicial system in Maguindanao is not working” was inaccurate. He added that six search warrants have already been issued and served and the trial court is still studying other applications even on weekends.[26] Furthermore, this author opines that based on the wording of Article 134 of the Revised Penal Code, as amended by R.A. 6968, unlike the Chief Executive or the Legislature, there is no mention of the judiciary in the phrase ending “xxx wholly or partially, of any of their powers or prerogatives.”

Conclusion

It is this author’s belief that the declaration of martial law in Maguindanao is without sufficient legal basis. While the Maguindanao Massacre should be condemned, declaring martial law is clearly an overkill and overreaction. The calling-out of the Armed Forces, without any declaration of martial law, would have been more than enough to handle the violence in Maguindanao.[27]

Rumors and fears that the whole martial law incident is just a part of a grand conspiracy to help the Ampatuans is understandable, considering that the suspects are known political allies of the President, and were vital in assuring her re-election in 2004 and that of her candidates in 2007.

Some believe that the government and prosecutors are deliberately bungling the case against the Ampatuans. The charges of rebellion could absorb the crime of murder. Because of the government’s insistence that rebellion was taking place, the Ampatuans can claim that the massacre was in furtherance of the rebellion.[28] It must be pointed out that rebellion is a political crime which carries lesser punishment than the capital offense of multiple murder. Even worse, rebellion can even be subject of a government amnesty or pardon.[29]

At any rate, it is therefore prayed that the Supreme Court, as the last bulwark of democracy, declare the unconstitutionality of Proclamation No. 1959. This ensures that a repeat of an invalid declaration of martial law would not happen in the future.

________________

Footnotes:

[1] Proclaiming a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Province of Maguindanao, except for certain areas.
[2] Article VI, Section 18, 1987 Philippine Constitution.
[3] David vs. Arroyo, G.R. No. 171396, May 3, 2006. The SC held that PGMA’s issuance of PP 1021 (revoking PP 1017, which declared a “State of National Emergency”) did not render the petitions assailing PP 1017 moot and academic.
[4] Supra note 2.
[5] Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 872.
[6] Jeannette Andrade, “Press groups condemn Maguindanao massacre”, Philippine Daily Inquirer, November 24, 2009.
[7] Veronica Uy,“UN chief, envoys condemn ‘brutal’ Maguindanao massacre”, Philippine Daily Inquirer, November 26, 2009.
[8] Jaileen F. Jimeno, Amid the fighting, the clan rules in Maguindanao, Philippine Center for Investigative Journalism (PCIJ), available at http://pcij.org/stories/amid-the-fighting-the-clan-rules-in-maguindanao/.
[9] Maguindanao goes 12-0 for TU senatorial bets, GMANews.tv, available at http://www.gmanews.tv/story/42743/TU-senatorial-bets-go-12-0-in-Maguindanao-Chavit-is-no-1.
[10] Richard Lloyd Parry, Philippines massacre army 'killed 200 others', Times Online, available at http://www.timesonline.co.uk/tol/news/world/asia/article6949639.ece.
[11] Ampatuan private army seeking help from MILF , Philippine Star, available at http://www.philstar.com/Article.aspx?articleId=530283&publicationSubCategoryId=200.
[12]Revised 6th Ed (1856).
[13] Act No. 3815.
[14] Article 134, Revised Penal Code, as amended by R.A. 6968, October 24, 1990.
[15] Florenz D. Regalado, Criminal Law Conspectus, Revised Edition, page 317
[16] Gil C. Cabacungan, ‘Murder raps may be buried’, Philippine Daily Inquirer, December 11, 2009.
[17] Joaquin G. Bernas, S.J., What powers can the President use? (Editorial), Philippine Daily Inquirer, December 7, 2009.
[18] Article III, Section 13 and Section 19(1), Art VIII, Section 5(2)(d).
[19] “Any person sentenced to any of the perpetual penalties shall be pardoned after undergoing the penalty for thirty years, unless such person by reason of his conduct or some other serious cause shall be considered by the Chief Executive as unworthy of pardon.”
[20] “An Act establishing a high school in Barangay Dulop, municipality of Dumingag, province of Zamboanga del Sur, to be known as the Dulop High School, and appropriating funds therefore.”
[21] Bernas, supra note 5, page 885.
DOJ: Rebellion was looming, Philstar.com, December 6, 2009, available at http://ph.news.yahoo.com/star/20091205/tph-doj-rebellion-was-looming-541dfb4.html.
[22] Id.
Ermita: Martial law proclaimed without actual rebellion, Philstar.com, December 11, 2009, available at http://ph.news.yahoo.com/star/20091205/tph-doj-rebellion-was-looming-541dfb4.html. Purple S. Romero, Rebellion in Maguindanao? Cabinet officials give mixed answers, ABS-CBN News, December 12, 2009, available at http://www.abs-cbnnews.com/nation/12/11/09/rebellion-maguindanao-cabinet-officials-give-mixed-answers.
[23] Romero, Id.
[24] Supra note 22.
[25] See IBP vs. Zamore, G.R. No. 141284, August 15, 2000.
[26] See People vs. Hernandez, 99 Phil. 515.
[27] Cathy C. Yamsuan, Bernas warns of amnesty for Ampatuans, Philippine Daily Inquirer, December 9, 2009.

Case Digest: Pamatong vs. Comelec

Prefatory Statement:

Last December 1 was the deadline for the filing of Certificate of Candidacies (COCs) for the 2010 Elections. In the end, a total of 99 filed their COCs for President. Among the lesser known presidentiables include someone called "Manok" (because apparently he can mimic a cock's crow), a six-star general, and a future "emperor of the world." Considering that we would be having automated elections next year and the list of all candidates are to be written in the ballots while voters are supposed to shade the circles corresponding to their choices, would all 99 candidates be included? No. Aside from disqualification petitions filed against the aspirants, the Comelec can also motu propio deny due course to the COCs. Aside from the qualifications set forth under the Constitution, a candidate should also have the capacity and resources to launch a national campaign.

Under the Constitution (Article II, Section 26), "the State shall guarantee equal access to opportunities for public service xxx." Would the Comelec's act of disqualifying the so-called "nuisance" candidates violate this constitutional provision?

---

CASE DIGEST

Rev. Ely Velez Pamatong Vs. Commission on Elections
G.R. No. 161872, April 13, 2004

FACTS:

Petitioner Pamatong filed his Certificate of Candidacy (COC) for President. Respondent COMELEC declared petitioner and 35 others as nuisance candidates who could not wage a nationwide campaign and/or are not nominated by a political party or are not supported by a registered political party with a national constituency.

Pamatong filed a Petition For Writ of Certiorari with the Supreme Court claiming that the COMELEC violated his right to "equal access to opportunities for public service" under Section 26, Article II of the 1987 Constitution, by limiting the number of qualified candidates only to those who can afford to wage a nationwide campaign and/or are nominated by political parties. The COMELEC supposedly erred in disqualifying him since he is the most qualified among all the presidential candidates, i.e., he possesses all the constitutional and legal qualifications for the office of the president, he is capable of waging a national campaign since he has numerous national organizations under his leadership, he also has the capacity to wage an international campaign since he has practiced law in other countries, and he has a platform of government.

ISSUE:

Is there a constitutional right to run for or hold public office?

RULING:

No. What is recognized in Section 26, Article II of the Constitution is merely a privilege subject to limitations imposed by law. It neither bestows such a right nor elevates the privilege to the level of an enforceable right. There is nothing in the plain language of the provision which suggests such a thrust or justifies an interpretation of the sort.

The "equal access" provision is a subsumed part of Article II of the Constitution, entitled "Declaration of Principles and State Policies." The provisions under the Article are generally considered not self-executing, and there is no plausible reason for according a different treatment to the "equal access" provision. Like the rest of the policies enumerated in Article II, the provision does not contain any judicially enforceable constitutional right but merely specifies a guideline for legislative or executive action. The disregard of the provision does not give rise to any cause of action before the courts.

Obviously, the provision is not intended to compel the State to enact positive measures that would accommodate as many people as possible into public office. Moreover, the provision as written leaves much to be desired if it is to be regarded as the source of positive rights. It is difficult to interpret the clause as operative in the absence of legislation since its effective means and reach are not properly defined. Broadly written, the myriad of claims that can be subsumed under this rubric appear to be entirely open-ended. Words and phrases such as "equal access," "opportunities," and "public service" are susceptible to countless interpretations owing to their inherent impreciseness. Certainly, it was not the intention of the framers to inflict on the people an operative but amorphous foundation from which innately unenforceable rights may be sourced.

The privilege of equal access to opportunities to public office may be subjected to limitations. Some valid limitations specifically on the privilege to seek elective office are found in the provisions of the Omnibus Election Code on "Nuisance Candidates.” As long as the limitations apply to everybody equally without discrimination, however, the equal access clause is not violated. Equality is not sacrificed as long as the burdens engendered by the limitations are meant to be borne by any one who is minded to file a certificate of candidacy. In the case at bar, there is no showing that any person is exempt from the limitations or the burdens which they create.

The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly. Towards this end, the State takes into account the practical considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion, not to mention the increased allocation of time and resources in preparation for the election. The organization of an election with bona fide candidates standing is onerous enough. To add into the mix candidates with no serious intentions or capabilities to run a viable campaign would actually impair the electoral process. This is not to mention the candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll body would be bogged by irrelevant minutiae covering every step of the electoral process, most probably posed at the instance of these nuisance candidates. It would be a senseless sacrifice on the part of the State.

The question of whether a candidate is a nuisance candidate or not is both legal and factual. The basis of the factual determination is not before this Court. Thus, the remand of this case for the reception of further evidence is in order. The SC remanded to the COMELEC for the reception of further evidence, to determine the question on whether petitioner Elly Velez Lao Pamatong is a nuisance candidate as contemplated in Section 69 of the Omnibus Election Code.

---

Obiter Dictum: One of Pamatong's contentions was that he was an international lawyer and is thus more qualified compared to the likes of Erap, who was only a high school dropout. Under the Constitution (Article VII, Section 2), the only requirements are the following: (1) natural-born citizen of the Philippines; (2) registered voter; (3) able to read and write; (4) at least forty years of age on the day of the election; and (5) resident of the Philippines for at least ten years immediately preceding such election.

At any rate, Pamatong was eventually declared a nuisance candidate and was disqualified.

Quinto vs. Comelec: Appointive Officials Not Deemed Resigned upon Filing Their COCs

“This is a disaster waiting to happen.”
- Justice Antonio T. Carpio[1]

The Supreme Court declared unconstitutional in Quinto vs. Comelec[2] the second provision in the third paragraph of Section 13, Republic Act 9369,[3] Section 66 of the Omnibus Election Code (OEC); and Section 4(a) of Comelec Resolution 8678. Consequently, appointive public officials are no longer ipso facto resigned when they file their certificate of candidacy for an elective post.

The Court found that the assailed provisions are violative of the equal protection clause. According to the court, “in considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their COCs, but not considering as resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is substantial distinction between those who hold appointive positions and those occupying elective posts, does not justify such differential treatment.”

The ruling basically paves the way for justices, judges, election officials, military and police officers, members of the cabinet and all appointed civil servants to continue exercising the functions of, and holding on to, their appointive office while campaigning to get elected for an elective position.

The legal ramifications are of great significance. As Justice Carpio pointed out in his dissenting opinion, imagine if the Provincial Commander of the AFP files his COC for governor on 1 December 2009 for the 10 May 2010 elections. If he is not considered automatically resigned from office, he has until the start of the campaign period on 26 March 2010 to remain in his post, in command of hundreds, if not thousands, of fully-armed personnel. The same is true for judges, cabinet secretaries, and other heads of offices who have some kind of influence and control over certain personnel and government resources. There are even reports that some Comelec officials themselves have filed their COCs for certain elective positions.

Next elections, it would then be possible that the Chief Justice, the Comelec Chairperson or the AFP Chief of Staff become a candidate for President, Vice-President or Senator while serving the office to which they were appointed.

The decision does not seem to prevent the evil that the Constitution, in so many words, seeks to prevent. In fact, Article IX(B), Section 2(4) of the Constitution expressly provides that “No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign.”

Furthermore, if they lose, they just continue occupying their appointive posts. This is illogical because Section 6, Art. IX(B) of the Constitution provides that “No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government of any government-owned or controlled corporations or in any of its subsidiaries.”

What this author finds even more strange is that originally, both elective officials and appointive officials are generally deemed resigned upon filing their COCs.[4] When the OEC was enacted in 1985, it substantially retained the rules on deemed resignations for both elected and appointive officials.[5] However, the Republic Act No. 9006[6] expressly repealed, among others, Section 67 of the OEC and rendered ineffective the provision relating to the automatic resignations of elected officials.

Curiously, RA 9006 is supposed to be “An Act To Enhance The Holding Of Free, Orderly, Honest, Peaceful And Credible Elections Through Fair Election Practices.” The law was all about the regulation of media or information in elections. But out of nowhere, and without any reasonable connection to the subject law, RA 9006, in its repealing clause, repealed Section 67 of the OEC. Unfortunately, the Supreme Court has already declared that the repealing clause of RA 9006 is not a rider and therefore constitutional in Fariñas vs. Comelec.[7] Personally, I still believe the repeal of Section 67 was a rider in the Fair Election Act.

It must be pointed out that the major reason behind the decision is to give some sort of equality between elective and appointive positions. The Court believed that prior to the decision, there was an “obvious discrimination” against appointive officials. Thus, in a way, the Court in this case removed said discrimination and treated elective and appointive positions the same.

Clearly, the effect of this decision is that public officials, whether elective or appointive, can keep their positions even when they have filed their COCs. Both Section 66, on appointive officials, and Section 67, on elective officials, of the OEC are now ineffective.

This author believes that if fairness and equality were the objectives, it would have been more logical to restore Section 67, instead of deleting Section 66. This way, we go back to what the OEC originally contained.

_____________

Footnotes:

[1] Dissenting Opinion, Quinto vs. Comelec, G.R. No. 189698, December 1, 2009.
[2] G. R. No. 189698, 1 December 2009.
[3] The Poll Automation Law
[4] Under Section 22 of Commonwealth Act No. 357, “Every person holding a public appointive office or position shall ipso facto cease in his office or position on the date he files his certificate of candidacy.” On the other hand, Section 2 of Commonwealth Act No. 666 states that “Any elective provincial, municipal, or city official running for an office, other than the one for which he has been lastly elected, shall be considered resigned from his office from the moment of the filing of his certificate of candidacy.”
[5] Section 66 and 67.
[6] Fair Election Act, effective March 20, 2001.
[7] G.R. No. 152161. December 10, 2003.

Random Thoughts on Martial Law (P.P. No. 1959)

1. It's ironic that Senate President Juan Ponce Enrile, the person who played a major role under Marcos' Martial Law (then Secretary of the Ministry of Defense), is now one of the presiding officers in the Congress Joint Session which can revoke PGMA's Martial Law in Maguindanao.

2. In this Joint Session, two prominent sons of significant personalities in Marcos' Martial Law would (presumably) participate: Sen. Noynoy Aquino (son of Ninoy Aquino, perhaps the most vocal critic of Martial Law, and none other than Rep. Bongbong Marcos (son of Pres. Ferdinand Marcos himself).

3. We are all aware of the Martial Law regime of Pres. Ferdinand Marcos. But the late strongman wasn't the first. Pres. Jose P. Laurel declared Martial Law sometime after the Japanese rule. Furthermore, Laurel was actually the first President who later on ran (and won) for a lower position in government (senator). PGMA would be the next.

4. Proclamation 1959 erroneously referred to R.A. No. 6986, which is actually an act establishing some high school. It should have been R.A. No. 6968, which amended the provision on Rebellion under the Revised Penal Code.

5. Petitions questioning the legality of the declaration of martial law have already been filed in the Supreme Court. It is likely though that even before the high court makes a decision, PGMA would have already revoked the declaration. This is what happened in the PP 1017 state of emergency declaration and the GRP-MILF MoAD. The good news is that in both cases, the SC did not consider them "moot and academic."

6. The reason for declaring martial law was supposedly because of a "looming" rebellion. However, the Constitution (based on the Constitutional Commission deliberations) clearly requires an "actual" rebellion.

7. The danger of filing rebellion cases against the Ampatuans is that the multiple murders can be absorbed in the crime of rebellion. Moreover, not only is rebellion a lighter offense, but it is also subject to amnesty and pardon.

8. The privilege of the writ of habeas corpus was suspended in Maguindanao. This was the basis of conducting those warrantless arrests and searches within the province. But how about the arrest of Ampatuan Sr., who was forcibly taken from a hospital in Davao, which is outside Maguindanao?

9. The privilege of the writ of habeas corpus was suspended. Does it follow that the writs of amparo and habeas data are also suspended?

10. Maguindanao has been at the center of other election-related controversies in the past. In 2004, it figured well in the “Hello Garci” recordings. In 2007, it was 12-0 for the admin senatorial bets, with some opposition candidates got statistically-improbable 0 votes.

Penera vs. Comelec: Decriminalizing Premature Campaigning

“It’s fiesta time, it’s open season”
- Comelec Commissioner Rene Sarmiento[1]

The case of Penera vs. Comelec (G.R. No. 181613, November 25, 2009) has effectively voided a section of the Omnibus Election Code (OEC) on premature campaigning.

The Supreme Court reinstated Rosalinda Penera as mayor of the municipality of Sta. Monica, Surigao del Norte as it granted her motion for reconsideration and set aside its earlier decision affirming her disqualification by the Comelec for premature campaigning. Penera’s disqualification stemmed from her alleged premature campaigning when she and her supporters had a motorcade a day before the start of the authorized campaign period for the 2007 elections.

For one to commit a violation of premature campaigning under Section 80 of the OEC, the following elements must exist:

(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;
(3) the act is done outside the campaign period.[2]

Clearly, the second element requires the existence of a “candidate.” Under Section 79(a) of the OEC, a candidate is one who “has filed a certificate of candidacy” to an elective public office. This is further qualified by Section 15 of R.A. 8436, which provides that the person who filed a CoC “shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy.”

In other words, “a candidate is liable for an election offense only for acts done during the campaign period, not before.” According to the Supreme Court, the law is “clear as daylight — any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period.”

I believe that Penera vs. Comelec has made partisan political activities, in whatever form, lawful before the start of the official campaign period. Since the Supreme Court has declared that a candidate is liable for an election offense only for acts done during the campaign period, premature campaigning is effectively decriminalized.

Thus, any partisan political activity, provided they are lawful (i.e. not violative of any other law), done by a person who has already filed his COC before the official campaign period, is legal.

The term “partisan political activity” is defined by the OEC[3] as an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate;

(2) 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;

(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

Thus, because partisan political activities done before the campaign period are now lawful, the acts enumerated above are also lawful.

The effect is that candidates could be punished only for unlawful acts or omissions committed during the campaign period. Consequently, if candidates take campaign funds from a foreign government or bribe voters outside campaign period, they cannot be prosecuted. A candidate can freely commit election offenses so long as he commits them before the start of the campaign period.[4]

The ruling has in a sense extended the “campaign period.” Under the law, the campaign period for candidates running for national posts starts three months before May 10, or election day. The campaign period for local posts is even shorter. But because premature campaigning is now an impossible offense, one can “campaign” even before the start of this period.

The effect is that you have two periods wherein partisan political activities are legal: (1) from the filing of COCs to the start of the official campaign period, wherein one is still not a “candidate,” and therefore cannot be liable for premature campaigning; (2) the official campaign period where a candidate can now engage in actual campaigning.

This means that airing of infomercials, posting of tarpaulins and streamers, and even conducting gatherings of all sorts are lawful.

Even saying “vote for me” should be considered lawful. After all, if you are still not a “candidate,” then directly or indirectly soliciting votes, which does not promote any particular “candidate,” is perfectly legal.

________________

Footnotes:

[1] Kristine L. Alave, Comelec dismayed by SC ruling on premature campaigning, Philippine Daily Inquirer, November 27, 2009.
[2] Lanot vs. Comelec and Eusebio GR No. 164858.
[3] Section 79(b).
[4] See Dissenting Opinion of Justice Roberto A. Abad, Penera vs. Comelec, G.R. No. 181613, November 25, 2009.