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No more Violations for Premature Campaigning

Published by Atty. Fred November 27th, 2009 in Elections and Constitutional Law. 0 Comments

Premature campaigning is now gone from our statute books. This is the effect of the
Supreme Court resolution in Rosalinda Penera vs. Commission on Elections, G.R. No.
181613, 25 November 2009 (Justice Carpio, pontente).
Background of the applicable laws
Section 80 of the Omnibus Election Code (Election Code) prohibits any person,
whether a candidate or not, from engaging in election campaign or partisan political
activity except during the campaign period fixed by law. Section 80 of the Election Code
reads:
SECTION 80. Election campaign or partisan political activity outside campaign period.
It shall be unlawful for any person, whether or not a voter or candidate, or for any
party, or association of persons, to engage in an election campaign or partisan political
activity except during the campaign period: x x x
Premature campaigning used to be a criminal offense and a ground for disqualification of
guilty candidates. Section 68 of the Election Code reads:
SECTION. 68. Disqualifications. Any candidate who, in an action or protest in which
he is a party is declared by final decision of a competent court guilty of, or found by the
Commission of having x x x (e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office; x x x
In 1997, Congress passed Republic Act (R.A.) No. 8436 (An Act Authorizing The
Commission On Elections To Use An Automated Election System In The May 11, 1998
National Or Local Elections And In Subsequent National And Local Electoral Exercises,
Providing Funds Therefor And For Other Purposes). Section 15 of R.A. 8436, as
amended by R.A. 9369, provides:
SECTION.15. Official Ballot. x x x
xxx
For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition of registration/manifestation to participate in the election. Any person
who files his certificate of candidacy within this period shall only be considered as a
candidate at the start of the campaign period for which he filed his certificate of
candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take
effect only upon the start of the aforesaid campaign period [.]
Background of the case; Previous Ruling
Rosalinda Penera was a candidate for mayor in Sta. Monica, Surigao Del Norte, during
the 2007 elections. On 29 March 2007, before proceeding to the COMELEC to file her
Certificate of Candidacy (CoC), Penera had a motorcade around the town. The motorcade
included two trucks and numerous motorcycles laden with balloons, banners, and posters
that showed the names of their candidates and the positions they sought. One of the
trucks had a public speaker that announced Peneras candidacy for mayor. These acts, as
the COMELEC ruled in Peneras disqualification case, constitute election campaign
before the start of the campaign period. Penera was disqualified.

In a Resolution dated 24 July 2007, the Supreme Court upheld the COMELEC. The
Supreme Court, at that time, made the ruling that 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 Election Code. 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.
Penera filed a motion for reconsideration, which was recently granted by the Supreme
Court. The 2007 Resolution was reversed.
Ruling of the Supreme Court
The essential elements for violation of Section 80 of the Election Code are: (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 or candidates; (3) the act is done
outside the campaign period.
The second element requires the existence of a candidate.
Under Section 79(a) of the Election Code, a candidate is one who has filed a certificate
of candidacy to an elective public office. This is 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. 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. This clear language is confirmed by the deliberations in
Congress during the enactment of this law.
Congress has the power to craft the law and the Supreme Court has the duty to apply the
law that is clear. While the Supreme Court has the power to declare this particular
provision as unconstitutional, and, therefore, null and void, there is no question of
unconstitutionality in this case. The remedial action would be before Congress, which has
the power to amend the law.
The existing rule on premature campaigning
The act of engaging in an election campaign or partisan political activity to promote the
election or defeat of a particular candidate or candidates, before the start of the
campaign period, is what was commonly known as premature campaigning. Because
premature campaigning requires the existence of a candidate and because there is no
candidate to speak of until the start of the campaign period, there is no more premature
campaigning.