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?

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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.

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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.

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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.

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.

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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.