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.