Premature campaigning and the 2013 Philippine elections

May a candidate be held liable for premature campaigning after the filing of the certificate of candidacy but even before the start of the campaign period?

This is the crux of the petition in the case of Penera vs. Comelec, et. al. (G.R. No.  181613, November 25, 2009)

In his resonant, incisive decision, Justice Antonio Carpio answers the question in the negative. In this case, Penera, who was running for a mayoral post in the 2007 elections, was initially disqualified by both the Comelec and the Supreme Court for violating the rules on premature campaigning when she held a motorcade upon and after the filing of her certificate of candidacy. Justice Carpio’s dissenting opinion in the main decision then became the opinion of the majority when Penera sought reconsideration.

According to Justice Carpio, “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 a certificate 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 period for filing] shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy.”  The immediately 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 two provisions determine the resolution of this case."

He quoted his argument in the dissenting opinion: “The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007.  Penera filed her certificate of candidacy on 29 March 2007.  Penera was thus a candidate on 29 March 2009 only for purposes of printing the ballots.  On 29 March 2007, the law still did not consider Penera a candidate for purposes other than the printing of ballots.  Acts committed by Penera prior to 30 March 2007, the date when she became a “candidate,” even if constituting election campaigning or partisan political activities, are not punishable under Section 80 of the Omnibus Election Code.  Such acts are within the realm of a citizen’s protected freedom of expression.  Acts committed by Penera within the campaign period are not covered by Section 80 as Section 80 punishes only acts outside the campaign period.”

“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,” Justice Carpio concluded. (all emphases supplied by the Supreme Court.)

This notwithstanding, candidates must be mindful of Comelec Resolution No. 9476, or the “COMELEC Rules and Regulations Governing Campaign Finance and Disclosure,” which requires candidates to file their statements of contributions and expenditures in connection with the elections. The Resolution states that, “No person elected to any public office shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required.” In addition, penalties range from fines to perpetual disqualification to hold public office.