PREMATURE CAMPAIGNING

By James Jimenez

With the filing of Certificates of Candidacy done, and the process of evaluating COCs already well-underway, the public’s attention understandably turns to the all the premature campaigning that candidates and party-list organizations are doing. People see the posters, the billboards, the streamers and wonder “how is this allowed?” We’ve answered this question hundreds of times, apparently to no avail: a lot of people still don’t get the problem; and the one body that can solve the problem still pretends to not even notice it. So, let us once more, charge into the breach.

RA 9369

Premature campaigning no longer exists as a punishable offense. There are two reasons for this: the first, is the language of Section 13 of Republic Act 9369, which provides:

“Any person who files his certificate of candidacy 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 that start of the aforesaid campaign period.”

Notice that a person who files his COC – as in any one of the more than 14,000 aspirants who recently trooped to COMELEC offices, from October 1to 8 – is NOT considered a candidate until the start of the campaign period. And since that person is not a candidate, he cannot technically engage in campaign activities, which are defined to be acts that promote the victory or defeat of a ‘candidate.’ Without any existing candidates, any act of promoting a person – through print ads, broadcast ads, or internet ads – would fall squarely into the category of free speech, not campaigning, even if common sense tells us that that is exactly what they are doing.

Notice also that the law says “unlawful acts or omissions applicable to a candidate shall (take) effect only upon that start of the aforesaid campaign period.” Premature campaigning is one of those unlawful acts. But if the unlawful act of premature campaigning can only “take effect upon the start” of the campaign period, how can it still be considered ‘premature?’ Campaign period na gani, di bala? Paano pa naging premature?

Otherwise stated, the law has made it impossible for the offense of premature campaigning to be committed. QED

Penera

The second reason why premature campaigning no longer exists as a punishable offense – or the confirmation of that fact at least – is the Supreme Court’s decision in Penera v. COMELEC. In that decision, the Court declared:

“In layman’s language, this means that 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.

“The plain meaning of this provision is that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period, the same partisan political acts are lawful.”

In an attempt to wash its hands of the consequences of its decision, the Court held:

“Congress has laid down the law — a candidate is liable for election offenses only upon the start of the campaign period. This Court has no power to ignore the clear and express mandate of the law that “any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy.” Neither can this Court turn a blind eye to the express and clear language of the law that “any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period.

“The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court but the Legislature.”

COMELEC

So if the Supreme Court itself has declared itself powerless to remedy the absurdity of this loophole in RA9369 – declaring that only Congress can close it down – what chance did the COMELEC really have?

Despite earlier pronouncements that COMELEC would crack down on premature campaigning, the clear light of day reveals that COMELEC can only resurrect premature campaigning as a punishable offense if it were to either postpone the filing of COCs so that the last day of filing would fall on the day immediately before the start of the campaign period (as it used to be, pre-automation); or move up the start of the campaign period to October – neither of which is practicable.

COMELEC cannot delay the filing of COCs all the way to the start of the election year because then there would be no time to screen the COCs for nuisance candidates, nor get the ballots ready for printing. And COMELEC cannot prepone (yes, this antonym of postpone really does exist) the campaign period because the law explicitly limits the duration of campaign periods to the few weeks immediately prior to election day. And besides, a 7-month formal campaign period would beggar most candidates and subject the rest of us to post-traumatic stress syndrome.

Ending

IN the end, the only real solution to the problem of premature campaigning is legislative action. In this instance at least, COMELEC is truly blameless.