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PENERA vs. COMELEC (Premature Campaining) Final Nov 9 Resolution

PENERA vs. COMELEC (Premature Campaining) Final Nov 9 Resolution

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Published by Steve B. Salonga
The Supreme Court decision that effectively removed the crime of premature campaigning from our election laws. Until another challenge is filed, this decision must stand.
The Supreme Court decision that effectively removed the crime of premature campaigning from our election laws. Until another challenge is filed, this decision must stand.

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Published by: Steve B. Salonga on Feb 05, 2013
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02/05/2013

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EN BANCROSALINDA A. PENERA,
Petitioner,
G.R. No. 181613
 Present:PUNO,
C.J.
,CARPIO,CORONA,CARPIO MORALES,CHICO-NAZARIO,VELASCO, JR.,- versus - NACHURA,LEONARDO-DE CASTRO,BRION,PERALTA,BERSAMIN,
 
DEL CASTILLO,ABAD, and
VILLARAMA, JR.,
 JJ.
COMMISSION ON ELECTIONS
Promulgated:
and EDGAR T. ANDANAR,
Respondents. November 25, 2009x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
R E S O L U T I O NCARPIO,
 J 
.:
We grant Rosalinda A. Penera’s (Penera) motion for reconsiderationof this Court’s Decision of 11 September 2009 (Decision).
 
The assailed Decision dismissed Penera’s petition and affirmed theResolution dated 30 July 2008 of the COMELEC En Banc as well as theResolution dated 24 July 2007 of the COMELEC Second Division. TheDecision disqualified Penera from running for the office of Mayor in Sta.Monica, Surigao del Norte and declared that the Vice-Mayor should succeedPenera.In support of her motion for reconsideration, Penera submits thefollowing arguments:
1. Penera was not yet a candidate at the time of the incident underSection 11 of RA 8436 as amended by Section 13 of RA 9369.2. The petition for disqualification failed to submit convincing andsubstantial evidence against Penera for violation of Section 80 of theOmnibus Election Code.3. Penera never admitted the allegations of the petition fordisqualification and has consistently disputed the charge of prematurecampaigning.4. The admission that Penera participated in a motorcade is not thesame as admitting she engaged in premature election campaigning.
Section 79(a) of the Omnibus Election Code defines a “candidate” as“any person aspiring for or seeking an elective public office, who has filed acertificate of candidacy x x x.” The second sentence, third paragraph,Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides that
[a]ny person who files his certificate of candidacy within [the periodfor filing] shall
 only
be considered as a candidate at the start of thecampaign period for which he filed his certificate of candidacy.
” Theimmediately succeeding
 proviso
in the same third paragraph states that
unlawful acts or omissions applicable to a candidate shall take effect
 only
upon the start of the aforesaid campaign period.
 
These twoprovisions determine the resolution of this case.The Decision states that “[w]hen the campaign period starts and [theperson who filed his certificate of candidacy] proceeds with his/hercandidacy, his/her intent turning into actuality,
we can already consider
 
his/her acts, after the filing of his/her COC and prior to the campaignperiod, as the promotion of his/her election as a candidate, hence,constituting premature campaigning, for which he/she may bedisqualified
.”
1[1]
 Under the Decision, a candidate may already be liable for prematurecampaigning after the filing of the certificate of candidacy but
even beforethe start of the campaign period
. From the filing of the certificate of candidacy, even long before the start of the campaign period, the Decisionconsiders the partisan political acts of a person so filing a certificate of candidacy
“as the promotion of his/her election as a candidate.”
Thus,such person can be disqualified for premature campaigning for acts donebefore the start of the campaign period.
In short, the Decision considers aperson who files a certificate of candidacy already a “
 candidate
” evenbefore the start of the campaign period.
The assailed Decision is contrary to the clear
intent and letter
of thelaw.The Decision reverses
 Lanot v. COMELEC 
,
2[2]
which held that
aperson who files a certificate of candidacy is not a candidate until thestart of the campaign period
. In
 Lanot,
this Court
 
explained:
Thus, the essential elements for violation of Section 80 of theOmnibus Election Code are: (1) a person engages in an election campaignor partisan political activity; (2) the act is designed to promote the electionor defeat of a particular candidate or candidates; (3) the act is done outsidethe campaign period.The second element requires the existence of a “candidate.” Under Section79(a), a candidate is one who “has filed a certificate of candidacy” to anelective public office. Unless one has filed his certificate of candidacy, he isnot a “candidate.” The third element requires that the campaign period hasnot started when the election campaign or partisan political activity iscommitted.Assuming that all candidates to a public office file their certificates of candidacy on the last day, which under Section 75 of the Omnibus Election
1 [1]
Decision, p. 23 (Boldfacing and underscoring supplied).
2[2]
G.R. No. 164858, 16 November 2006, 507 SCRA 114.

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