Shut it down

By James Jimenez

You’ve all seen pictures like this on social media: posters on walls, light posts, and trees; campaign materials disguised as bunting or banderitas strung across streets, or of infrastructure projects with the name and face of an elected politician more prominently featured than even the name of the project. And always, these pictures are accompanied by captions that ask innumerable outraged variations “isn’t this premature campaigning?”

The outrage isn’t fake – it IS outrageous. For the longest time, politicians of all stripes have taken advantage of a gaping loophole in the law that allowed them to engage in political campaigning long before the statutorily mandated campaign period. But for 2025, it would appear that the Commission on Elections has decided to take matters into its own hands and moved to finally shut that loop hole down.

The Loophole

Section 13, Republic Act 9369, provides, among other things: “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 that start of the aforesaid campaign period.”

In other words, a person who files a certificate of candidacy – typically in October the year before the scheduled election – won’t be subject to the rules of the election until the start of the official campaign period, sometime in February the following year. For a period of approximately three months after the filing of COCs therefore, the COC-filers – who are all but candidates in name – are free to engage in campaigning activities prior to the start of the campaign period, without consequence.

Let me be clear: any activity done by a “candidate” that tends to promote a candidate’s win or another candidate’s defeat is, by definition “campaigning.” And any campaigning done before the start of the campaign period is defined as “premature campaigning,” which is obviously against the law. But since a COC-filer would not be considered a “candidate” until the start of the campaign period, anything he did in the meantime could not possibly be called “campaigning,” much less premature.  This yawning loophole in the law was affirmed by the Supreme Court in the landmark case of Peñera v. COMELEC.

Shut it down

It would appear, however, that the loophole is about to be shut down.

Recently, COMELEC has announced that it would deem everyone as official candidates immediately upon filing their COCs. With this simple declaration, the COMELEC erases the three-month free-for-all that RA 9369 created, from the filing of COCs to the start of the campaign period.

Up until point, there has been nothing COMELEC could do about the problem because it was the law itself that created the problem. The Supreme Court itself, in Peñera v. COMELEC all but threw up its hands and said that the solution to this loophole lay with Congress itself, saying:

“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. This Court has no recourse but to apply a law that is as clear, concise and express as the second sentence, and its immediately succeeding proviso, as written in the third paragraph of Section 15 of RA 8436, as amended by RA 9369.”

With the Supreme Court having taken itself out of the equation, the COMELEC repeatedly brought this matter up with legislators over the years. While some proposed legislation did emerge, none ever quite made it to the finish line. One, however, was obviously the inspiration for the COMELEC’s recent move: a bill, filed in the senate, that seeks to define the start of official candidacy as the moment of filing a COC, rather than the start of the campaign period.

And that’s what the COMELEC, in a welcome display of cojones, has now declared it will do.