Chaos seen in SC ruling on premature campaigning

First of Two Parts

MANILA - Poll lawyers warned of dire complications in the forthcoming election campaign due to the recent Supreme Court (SC) ruling on premature campaigning.

In separate interviews with abs-cbnnews.com/Newsbreak, the election lawyers said the Supreme Court should revisit its ruling since it could result to chaos and confusion.

The SC decision could defeat the goal of informing voters about the candidates, which they need to be able to make an informed choice.

Secondly, it will also punish candidates for merely following the early deadline in the filing of certificate of candidacy (COC) as required by the 2007 poll automation law.

Worst of all, poll operators would have a field day pulling off dirty tricks on rival candidates to disqualify them. The Commission on Elections (Comelec) could be flooded with disqualification complaints, wasting its time and resources.

Impact  on media

Caught in the middle would be the media, which will have to delicately balance its reporting to avoid being accused of engaging in premature campaigning. Election lawyers said that if the SC ruling would be strictly observed, a total news blackout on the candidates would have to be observed.

This would affect media’s effort to engage the candidates on behalf of the electorate, and generate millions of revenues from campaign ads.

By a close 8-7 vote, the Tribunal on Tuesday ruled that Section 80 of the Omnibus Election Code, which defines premature campaigning, has not been repealed by Republic Act (RA) 8436 as amended by RA 9369 or the poll automation law.

Section 80 of the Omnibus Election Code states that “it shall be unlawful for any person, whether or not a voter or candidate…to engage in an election campaign or partisan political activity, except during the campaign period.”

The ruling was triggered by the disqualification case filed against Sta. Monica, Surigao del Norte Mayor Rosalinda Penera by losing rival, Edgar Andanar, during the 2007 mid-term elections.

Andanar alleged that Penera violated Section 80 of the Omnibus Election Code when she held a motorcade in filing her candidacy on March 29. The official campaign period for the local candidates, however, only began the following day.

Penera was ordered stripped of the mayoralty post after the majority justices ruled that the local official engaged in premature campaigning.

Dissenting opinion

In his strongly-worded dissent, Justice Antonio Carpio said the enactment of the poll automation law in January 2007, or a month before Penera filed her candidacy, effectively repealed the law against premature campaigning, and for which she could no longer be held liable.

Carpio stressed that under RA 9369, the Comelec has been tasked to schedule an early deadline in the filing of certificates of candidacy for purposes of automating the polls.

The law further states that “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….provided, that unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the campaign,” Carpio said.

Decriminalized premature campaign

The minority held that this provision expressly repealed Section 80 of the Election Code, thus removing premature campaigning as a criminal and administrative act.

While the provision was intended to give Comelec enough time to print the ballots for automation, election lawyers Romulo Macalintal and Sixto Brillantes agreed that RA 9369 has, in effect, “decriminalized” premature campaigning.

This means candidates, national or local, can now engage in uninhibited vote solicitation even before the official campaign period. The official campaign period for national candidates starts on February 9, 2010, and on March 26, 2010 for local bets.

Brillantes explained that what the provision merely “decriminalizes” is campaigning outside of the election period, but not other prohibited acts, especially during the campaign period.

“It is clear from the law that a candidate only becomes a formal candidate at the start of the election period. Therefore, any premature campaigning cannot be held liable against a candidate who is not yet an actual candidate in the first place,” Brillantes said. “In effect, there is no more premature campaigning.”

Disappearing candidates

If the majority ruling would be strictly observed, Brillantes said a bizarre situation would arise where national candidates who have filed their candidacies would have to “disappear” from public radar for more than two months, or from December 1, 2009 to February 9, 2010.  The Comelec has scheduled the filing of candidacies from November 20 to 30, 2009.
 
“In essence, all the candidates should not be seen by the public for two months, or else they could be charged with premature campaigning. This should pose a problem for those running for national posts,” Brillantes said.

Section 79 of the Omnibus Election Code defines election campaign or partisan activity to include forming organizations, holding meetings and rallies, making speeches or commentaries and holding interviews or any act that “directly or indirectly” seeks to solicit "votes, pledges or support for or against a candidate.”

Such activities done outside of the official campaign period are considered forms of premature campaigning.

Prohibited acts even before COC filing

In his dissent, Carpio said that if majority opinion would be applied, “even acts before the filing of the certificate of candidacy will be covered by the prohibition on premature campaigning.”

With the infomercials now flooding the airwaves and the high election fever, the majority ruling has the effect of disqualifying “practically all the presidential candidates who are now leading in the surveys,” Carpio said.

But the majority opinion clarified that the law against premature campaigning will only apply after the candidate has formalized his or her candidacy, and that any disqualification proceedings for violations committed can only commence at the start of the campaign period.

To the majority, the law against premature campaigning is precisely to level the playing field among candidates, and “for politicians to adhere to the letter and intent of the law.”

The Court added: “This would mean that after filing their COCs, the prudent and proper course for them to take is to wait for the designated start of the campaign period before they commence their election or partisan political activities.”

Reversal of prior doctrine?

Macalintal said the majority decision also essentially reverses the Lanot versus Comelec doctrine in 2006, which laid down the essential elements for violation of Section 80 of the Omnibus Election Code. The SC said that a one vital element for a violation is the existence of a candidate.

But in the majority ruling, any individual who has filed a COC is covered by the blanket ban on premature campaigning even though RA 9369 expressly intended that, “he/she cannot yet be considered a candidate,” Macalintal said.

Macalintal pointed to the majority assertion that under Sec. 15 of RA 8436, as amended, the mere filing of COC does not automatically make one a candidate. Yet, going against the Lanot doctrine, anyone who has filed a COC for the May 2010 polls, although not technically a candidate yet, can be held liable for premature campaigning.

Punished for mere intent

Election lawyer Jorge Garcia said the traditional definition of a candidate applies only when the official campaign period begins. “Mere filing of COC is just an intent to participate in the elections. The moment you campaign, you become a candidate.”

There was no problem in defining a candidate before since most individuals file their COCs a day before the deadline, Garcia said.  In the present automation law, an early filing has been required to allow Comelec to print the ballots for the automated election system.

Garcia says the Tribunal’s ruling creates a situation “as if no new law has been passed,” and punishes individuals “for mere intention.”

He said “it would be unfair on the part of legislators to be punished for complying with the Comelec deadline.”