EN
BANC
G.R. No. 181613 -- ROSALINDA
A. PENERA,
Petitioner, versus COMMISSION
ON ELECTIONS and EDGAR T. ANDANAR, Respondents.
Promulgated:
November 25, 2009
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DISSENTING
OPINION
ABAD, J.:
The Facts and the Case
Petitioner Rosalinda Penera and
respondent Edgar Andanar ran for mayor of Sta. Monica, Surigao Del Norte, during
the May 14, 2007 elections.
On March 29, 2007 a motorcade by
petitioner Penera’s political party preceded the filing of her certificate of
candidacy before the Municipal Election Officer of Sta. Monica. Because of this, on April 2, 2007 Andanar filed
with the Regional Election Director for Region 13 in SPA 07-224 a petition to
disqualify[1]
Penera, among others,[2]
for engaging in election campaign before the start of the campaign period.
Andanar claimed that Penera and her
partymates went around Sta. Monica on March 29, announcing their candidacies
and asking the people to vote for them in the coming elections. Answering the petition, Penera claimed that although
a motorcade preceded the filing of her certificate of candidacy, she merely
observed the usual practice of holding a motorcade on such momentous occasion,
but which celebration ended soon after she filed her certificate. Penera claimed that no one made a speech
during the event. All they had were
lively background music and “a grand standing for the purpose of raising the
hands of the candidates in the motorcade.”
The parties presented their position papers and other
evidence in the case.[3] Afterwards, the regional office forwarded its
record to the Commission on Elections (COMELEC) in
On July 24, 2007 the COMELEC’s Second Division issued
a resolution, disqualifying petitioner Penera from continuing as a mayoralty
candidate in Sta. Monica on the ground that she engaged in premature
campaigning in violation of Sections 80 and 68 of the Omnibus Election
Code. The Second Division found that
she, her partymates, and a bevy of supporters held a motorcade of 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 Penera’s candidacy for mayor.
Petitioner Penera filed before the COMELEC en banc a motion for reconsideration[4] of
the Second Division’s July 24, 2007 resolution.
The En Banc denied her motion
on January 30, 2008.[5] Still undeterred, Penera came up to this
Court. On September 11, 2009 an almost
evenly divided Court affirmed the ruling of the COMELEC. On motion for reconsideration, however, the
number of votes shifted in favor of granting the petition and reversing the
ruling of the COMELEC.
The Issue
The core issue that divided the Court is whether or
not petitioner Penera’s act of campaigning for votes immediately preceding the
filing of her certificate of candidacy on March 29, 2007 violates the
prohibition in Section 80 of the Omnibus Election Code against premature
campaigning, with the result that she is disqualified from holding office in
accordance with Section 68 of the Code.
Discussion
Section 80
of the Omnibus 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.
Apart from its penal consequence, the law disqualifies
any candidate who engages in premature campaigning from holding the office to
which he was elected. Section 68 of the
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. (Underscoring supplied.)
Since the COMELEC found petitioner Penera
guilty of having led on March 29, 2007 a colorful and noisy motorcade that
openly publicized her candidacy for mayor of Sta. Monica, this Court held in
its original decision that the COMELEC correctly disqualified her from holding
the office to which she was elected.
The current majority of the Court
claims, however, that with the passage of Republic Act (R.A.) 9369, a candidate
who campaigns before the official campaign period may no longer be regarded as
having committed an unlawful act that constitutes ground for disqualification. The majority’s reasoning is as follows:
a. Section
79 (a) of the Omnibus Election Code states that a candidate is “any person aspiring for
or seeking an elective public office, who has filed a certificate of candidacy
by himself or through an accredited political party, aggroupment, or coalition
of parties.”
b. It is a person’s filing of a certificate of candidacy,
therefore, that marks the beginning of his being a candidate. It is also such
filing that marks his assumption of the responsibilities that goes with being a
candidate. Before Penera filed her
certificate of candidacy on March 29, 2007, she could not be regarded as having
assumed the responsibilities of a “candidate.”
c. One of these
responsibilities is the duty not to commit acts that are forbidden a candidate such as campaigning for votes
before the start of the prescribed period for election campaigns. Premature campaigning is a crime and
constitutes a ground for disqualification from the office that the candidate
seeks.
d. But, with the amendment of
Section 15 of R.A. 8436 by Section 13 of R.A. 9369, a person’s filing of a
certificate of candidacy does not now automatically mark him as a
“candidate.” He shall be regarded a
“candidate,” says Section 15, only at the start of the campaign period. Further, the “unlawful acts or omissions
applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period.”
It is significant that before the passage of R.A. 9369 a candidate for a
local office had up to the day before the start of the campaign period (which
in the case of a local election consists of 45 days before the eve of election
day) within which to file his certificate of candidacy and, thus, be regarded
as a “candidate.” But the need for time
to print the ballots with the names of the candidates on them under the
automated election system prompted Congress to authorize the COMELEC to set a
deadline for the filing of the certificates of candidacy long before the start
of the campaign period. Thus, the
pertinent portion of Section 15 of R.A. 8436, as amended, provides:
SECTION 15. Official
ballot. –
x x x x
For this purpose [the printing of ballots], the
Commission shall set the deadline for the filing of certificate of candidacy/
petition for registration/ manifestation to participate in the election. x x x
x x x x
Evidently,
while Congress was willing to provide for advance filing of certificates of
candidacy, it did not want to impose on those who file early certificates the
responsibilities of being already regarded as “candidates” even before the
start of the campaign period. Thus, the
same Section 15 provides further on:
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; x x x.
In Penera’s case, she filed her
certificate of candidacy on March 29, 2007.
Section 15 does not yet treat her as “candidate” then. Only at the start of the official campaign
period on March 30, 2007 was she to be considered as such “candidate.” To emphasize this, Congress provided further
on in Section 15 that an early filer’s responsibility as a candidate begins only when the campaign period begins. Thus –
Provided, That, unlawful acts or
omissions applicable to a candidate shall take effect only upon the start of
the aforesaid campaign period; x x x.
The current majority concludes from the above that from the time R.A.
9369 took effect on February 10, 2007 a person like petitioner Penera cannot be
held liable as a “candidate” for engaging in premature election campaign before
she filed her certificate of candidacy or even after she filed one since she may
be regarded as a “candidate” only at the start of the campaign period on March
30, 2007. Consequently, since she was
not yet a “candidate” on March 29, 2007 when she went around Sta. Monica
campaigning for votes on her way to appearing before the election registrar to
file her certificate of candidacy, she cannot be held liable for premature
campaigning.
But the fact that Penera was not yet a candidate before she actually
handed in her certificate of candidacy to the designated COMELEC official does not
exempt her from the prohibition against engaging in premature election
campaign. Section 80 which imposes the
ban ensnares “any person,” even a non-candidate. Thus:
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 (Emphasis ours.)
Essentially, the law makes the prohibition against premature campaigning
apply to “any person” and “any party, or association of persons.” This means that no one is exempt from the
ban. The mention of the word “candidate”
in the first grouping, i.e., “any person, whether or not a voter or candidate,” merely stresses the point
that even those with direct interest in a political campaign are not exempt
from the ban. Consequently, even if
Penera had not yet filed her certificate of candidacy, Section 80 covered her
because she fell in the category of “any person.”
The provision of Section 15 of R.A. 8436, as amended, that regards
Penera as a “candidate” only at the start of the campaign period on March 30,
2007 did not, therefore, exempt her from liability as a non-candidate engaging
in premature election campaign.
Here, candidate Penera has been found by the COMELEC to have violated
Section 80 when, even before she was a candidate, she prematurely campaigned
for votes for herself. The ground for
her consequent disqualification—premature campaigning—already accrued by the
time she filed her certificate of candidacy or when the official campaign
period began. Consequently, she is
disqualified under Section 68 from continuing as a candidate or, since she has
been elected, from holding on to that office.
Thus:
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 (Underscoring supplied.)
Does this position contravene Section 15 of R.A. 8436, as amended, that
regards Penera as a “candidate” only at the start of the campaign period on
March 30, 2007? It does not because
Section 80, which the Court seeks to enforce, is essentially intended as a
ground for sanctioning “any person,” not necessarily a candidate, who
engages in premature election campaign.
The real challenge to the current minority position, however, is the
meaning that the Omnibus Election Code places on the term “election
campaign.” “The term ‘election campaign’ or ‘partisan
political activity,’ says Section 79, “refers to an act designed to promote the
election or defeat of a particular candidate or candidates to a public
office.” The object of the election
campaign activity must be the “election or defeat of a particular
candidate.”
When petitioner Penera practically said
“vote for me” during the March 29 motorcade that she led around Sta. Monica,
did she solicit votes for a “particular candidate?” The current majority holds that since,
according to Section 79, a “candidate refers to any person aspiring for or
seeking an elective public office, who
has filed a certificate of candidacy” and since Penera held her
vote-solicitation motorcade before
she filed her certificate of candidacy, she did not engage during the town
motorcade in a campaign for the election of any “particular candidate.”
But this is being too literal. It
is like saying that a woman cannot be held liable for parricide since the penal
code uses the male pronoun in ascribing to the offender the acts that
constitute the crime. Thus, the penal
code says:
Art. 246. Parricide. — Any person who
shall kill his father, mother, or child, whether legitimate or illegitimate, or
any of his ascendants, or descendants, or his spouse, shall be guilty of
parricide and shall be punished by the penalty of reclusion perpetua to death.
Yet, parricide, as everyone knows, can also be committed by a woman who shall
kill her father, mother, or child,
or her spouse. The spirit of the law intends to punish any
person, male or female, who kills his or her ascendants, descendants, or
spouse. Literalness must yield to
evident legislative intent.
Here, did Congress in enacting R.A. 9369
intend to abolish or repeal Section 80 of the Omnibus Election Code that
prohibits election campaigns before the start of the campaign period? It did not.
Section 80 remains in the statute books and R.A. 9369 did not, directly
or indirectly, touch it.
The current majority of course claims,
citing Section 15 of R.A. 8436, as amended, that “the effective date when
partisan political acts become unlawful as to a candidate is when the campaign
period starts. The pertinent portion of
Section 15 says:
Provided, That, unlawful acts or
omissions applicable to a candidate shall take effect only upon the start of
the aforesaid campaign period; x x x.
If we were to abide by the view of the
current majority, Congress ordained when it passed the above provision that it
is only for unlawful acts or omissions committed during the campaign period
that candidates could be punished.
Consequently, if candidates take campaign funds from a foreign government[6]
or conspire with others to bribe voters[7]
just one day before the start of the campaign period, they cannot be
prosecuted. A candidate under the theory
of the current majority can freely commit a litany of other crimes relating to
the election so long as he commits them before the start of the campaign
period. Surely, R.A. 9369 did not intend
to grant him immunity from prosecution for these crimes.
The
more reasonable reading of the provision—that unlawful acts or omissions applicable to a
candidate shall take effect only upon the start of the campaign period—is that Congress referred only to unlawful acts or omissions that could
essentially be committed only during the campaign period. For how could a candidate commit unlawful
“pre-campaign” acts during the campaign period?
The unlawful act of engaging in
premature election campaign under Section 80, in relation to Section 79 which
defines the terms “candidate” and “election campaign,” may be regarded as
consisting of three elements:
1. A person acts to promote
the election or defeat of another to a public office;
2. He commits the act before
the start of the campaign period; and
3. The person whose election
or defeat the offender seeks has filed a certificate of candidacy for the
office.
The first two elements could take place when the offender engages in
premature election campaign for the person whose election or defeat he seeks to
promote but who has not as yet filed his certificate of candidacy. Whereas, the third element—consisting in the
latter person’s filing his certificate of candidacy—could take place later,
close to the campaign period.
The elements of a crime need not be present on a single occasion. In B.P. 22 cases, the issuer of the check may
have knowingly issued a perfectly worthless check to apply on account. But, until the check is dishonoured by the
drawee bank, the crime of issuing a bouncing check is not deemed
committed. The analogy is far from
perfect but the point is that the offender under Section 80 knew fully when she
shouted on the top of her voice, “vote for me as your mayor!” before she filed
her certificate of candidacy that she was running for mayor. If she says she is not liable because she is
technically not yet a candidate, the people should say, “Let us not kid each
other!”
Congress could not be presumed to have written a ridiculous rule. It is safe to assume that, in enacting R.A.
9369, Congress did not intend to decriminalize illegal acts that
candidates and non-candidates alike could commit prior to the campaign
period.
Further, current majority’s view may doom the next generations. Congress enacted Section 80 because,
historically, premature election campaigns begun even years before the election
saps the resources of the candidates and their financial backers, ensuring
considerable pay-back activities when the candidates are elected. Such lengthy campaigns also precipitate
violence, corrupt the electorate, and divert public attention from the more vital
needs of the country.[8]
Actually, practically all the
principal stakeholders in the election, namely, the voters, the candidates, and
the COMELEC, have since 1969 assumed that premature election campaign is not
allowed. People generally wait for the
campaign period to start before engaging in election campaign. Even today, after the passage of R.A. 9369,
those aspiring to national offices have resorted to the so-called
“infomercials” that attempt to enhance their popularities by showing their
philosophies in life, what they have accomplished, and the affection with which
ordinary people hold them. No one has
really come out with ads soliciting votes for any particular candidate or
person aspiring for a particular public office.
They are all aware of Section 80.
Parenthetically, the Supreme Court declared the law banning premature
election campaign constitutional in Gonzales
v. Commission on Elections[9]
only because the majority in the Court were unable to muster two-thirds votes
to declare it unconstitutional. The
freedom of expression has always loomed large in the mind of the Court. It would not be likely, therefore, for the
Court to hastily declare every expression tending to promote a person’s chances
in the elections as prohibited election campaigning.
I vote to deny the motion for
reconsideration.
ROBERTO A. ABAD
Associate Justice
[1] Rollo, pp. 53-54.
[2] Arcelito Petallo, Renato Virtudazo,
Glorina Aparente, Silverio Tajos, Jose Platil, Medardo Sunico, Edelito Lerio
and Sensualito Febra.
[3] Rollo, p. 127.
[4]
Id. at 97-108.
[5]
[6] Section 96, Omnibus Election Code.
[7] Section 261 (b), Omnibus Election Code.
[8] Gonzales v. Commission on Elections, 137 Phil. 471, 490-491 (1969).
[9]