G.R.
No. 181613 (ROSALINDA A. PENERA v. COMMISSION ON ELECTIONS and EDGAR T.
ANDANAR)
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DISSENTING OPINION
CHICO-NAZARIO, J.:
On
Penera
forthwith filed a Motion for Reconsideration[1] of
the above Decision, invoking the following arguments, to wit:
1)
Penera
was not yet a candidate at the time of the incident under Section 11 of
Republic Act No. 8436, as amended by Section 13 of Republic Act No. 9369.[2]
2)
Section
80 of the Omnibus Election Code was expressly repealed by Republic Act No.
9369.[3]
3)
The
petition for disqualification failed to submit convincing and substantial
evidence against Penera for violation of Section 80 of the Omnibus Election
Code.[4]
4)
Penera
never admitted the allegations of the petition for disqualification and has
consistently disputed the charge of premature campaigning.[5]
5)
The
admission that Penera participated in a motorcade is not the same as admitting
she engaged in premature election campaigning.[6]
I
vote to deny the Motion for Reconsideration.
Penera’s Motion for Reconsideration
The basic issues in the
Motion for Reconsideration were already passed upon in the Decision dated
The
grounds that: (1) Penera was not yet a candidate at the time of the incident
under Section 11 of Republic Act No. 8436, as amended by Section 13 of Republic
Act No. 9369; (2) Section 80 of the Omnibus Election Code was expressly
repealed by Republic Act No. 9369; and (3) the petition for disqualification
failed to submit convincing and substantial evidence against Penera for
violation of Section 80 of the Omnibus Election Code are all reiterations of
her previous arguments before the Court and the same had already been adequately
addressed in the Decision dated 11 September 2009.
Incidentally,
Penera herself disclosed in her Motion for Reconsideration that she is the
respondent in a criminal case filed by Edgar T. Andanar for the commission of
election offenses in violation of the Omnibus Election Code, which is docketed
as EO Case No. 08-99.[7] Thus, the pronouncement in the Decision dated
With
respect to the assertion that Penera never admitted the allegations of the petition
for disqualification and has consistently disputed the charge of premature
campaigning, the same is utterly without merit.
Penera admitted participating in the motorcade after filing her
COC. What she merely denied and/or
refuted were the minor details concerning the conduct of said motorcade.
Likewise,
Penera’s contention that her admission of participating in the motorcade in this case is not the same
as admitting that she engaged in premature campaigning deserves scant
consideration. Logically, to admit to
the elements constituting the offense of premature campaigning is to admit to
the commission of the said offense.
Precisely, it is the act of participating in the motorcade after the
filing of her COC that constituted the prohibited act of premature campaigning
in the instant case.
Finally,
the claim of Penera that not all motorcades are designed to promote the election of a
candidate is unimpressive. Clearly, the
context of the discussion on motorcades in the
Decision dated
As held in the Decision
dated 11 September 2009, the conduct of a motorcade during election periods is
a form of election campaign or partisan political activity, falling squarely
within the ambit of Section 79(b)(2) of the Omnibus Election Code, on
“[h]olding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies,
for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate[.]”
The obvious purpose of the conduct of motorcades during election periods
is to introduce the candidates and the positions to which they seek to be
elected to the voting public; or to make them more visible so as to facilitate
the recognition and recollection of their names in the minds of the voters come
election time.
The
pretense that the motorcade was only a convoy of vehicles, which was entirely
an unplanned event that dispersed eventually, does not hold water. After filing their certificates of candidacy, Rosalinda
Penera and the other members of her political party conducted a motorcade and
went around the different barangays
in the
Majority Opinion
Although the majority
opinion initially mentions the above-stated grounds of Penera’s Motion for
Reconsideration, the same were not at all discussed. The Resolution of the majority purely
involves an exposition of the grounds set forth in the Dissenting Opinion of
Justice Antonio T. Carpio to the Decision dated
At
the outset, the majority opinion highlights the relevant provisions of law
defining the meaning of a candidate.
Under Section 79(a) of the Omnibus
Election Code, 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.” On the other hand, the
second sentence in the third paragraph of Section 15 of Republic Act No. 8436,
as amended by Republic Act No. 9369, states that “[a]ny 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.” The first proviso
in the same paragraph provides that “unlawful
acts or omissions applicable to a candidate shall take effect only upon the
start of the aforesaid campaign period.”
The majority opinion goes on to quote
a paragraph in the Decision dated
When the campaign period starts and said
person proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing of his/her [certificate
of candidacy (COC)] and prior to the campaign period, as the promotion of
his/her election as a candidate, hence, constituting premature campaigning,
for which he/she may be disqualified.
According to the interpretation of the
majority of the above pronouncement, the Decision dated 11 September 2009
already considers a person who filed a COC a “candidate” even before the start
of the campaign period. From the filing
of the COC, even before the start of the campaign period, the ponente allegedly considers the partisan
political acts of a person filing a COC “as
the promotion of his/her election as a candidate.”
The
majority clearly mistook the import of the above-quoted portion and read the
same out of context. Absolutely nowhere
in the Decision dated
To
recall, the Court held in its Decision that Section 80 of the Omnibus Election
Code, which defines the prohibited act of premature campaigning, was not
repealed, expressly or impliedly, by Section 15 of Republic Act No. 8436, as
amended.
Section 80 of the Omnibus
Election Code reads:
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.
While
relevant portions of Section 15
of Republic Act No. 8436, as amended by Republic Act No. 9369, provide:
SECTION.15. Official
Ballot. – x x x
x x x x
For this purpose, 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 the start of the aforesaid campaign
period[.]
The
Court harmonized and reconciled the above provisions in this wise:
The following
points are explanatory:
First, Section 80 of the Omnibus Election Code,
on premature campaigning, explicitly provides that “[i]t 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.” Very simply,
premature campaigning may be committed even by a person who is not a candidate.
For this reason, the plain
declaration in Lanot that “[w]hat Section 80 of the Omnibus Election
Code prohibits is ‘an election campaign or partisan political activity’ by a ‘candidate’ ‘outside’ of the
campaign period,” is clearly erroneous.
Second, Section 79(b) of the Omnibus Election
Code defines election campaign or partisan political activity in the following
manner:
SECTION 79. Definitions.
- As used in this Code:
x x x x
(b) The term "election campaign" or "partisan political activity" refers to an act designed to
promote the election or defeat of a particular candidate or candidates to a
public office which shall include:
(1) Forming organizations, associations,
clubs, committees or other groups of persons for the purpose of soliciting
votes and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses,
conferences, meetings, rallies, parades, or other similar assemblies, for the
purpose of soliciting votes and/or undertaking any campaign or propaganda for
or against a candidate;
(3) Making speeches, announcements or
commentaries, or holding interviews for or against the election of any
candidate for public office;
(4) Publishing or distributing campaign
literature or materials designed to support or oppose the election of any
candidate; or
(5) Directly or indirectly soliciting
votes, pledges or support for or against a candidate.
True,
that pursuant to Section 15 of Republic Act No. 8436, as amended, even after
the filing of the COC but before the start of the campaign period, a person is not yet officially considered a candidate. Nevertheless, a person, upon the filing of his/her COC, already explicitly declares his/her intention to run as a candidate in the
coming elections. The commission by such
a person of any of the acts enumerated under Section 79(b) of the Omnibus
Election Code (i.e., holding rallies or parades, making
speeches, etc.) can, thus, be
logically and reasonably construed as for the purpose of promoting his/her
intended candidacy.
When the campaign period starts and said person proceeds
with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts,
after the filing of his/her COC and prior to the campaign period, as the
promotion of his/her election as a
candidate, hence, constituting premature campaigning, for which he/she
may be disqualified. x x x (Underscoring
supplied.)
The
last paragraph of the aforequoted portion of the Decision dated
Thereafter,
it is only at the start of the campaign period, when said person is already a
formal candidate, that the partisan political acts that he/she committed after
the filing of the COC can already be considered as being for the promotion of
his/her election as a candidate; hence, constituting premature campaigning.
Reversal of Lanot v.
Commission on Elections
The
majority likewise ascribes error on the part of the ponente for reversing Lanot,
which held that a person should be a candidate before premature campaigning may
be committed. Resolved under the auspices of Republic Act
No. 8436,[8]
the previous automation law, Lanot
was allegedly decided on the ground that one who files a COC is not a candidate
until the start of the campaign period.
Supposably, Congress wanted to ensure that any person filing a COC under
the early deadline required by the automated election system would not be
disqualified for any partisan political act done prior to the start of the
campaign period.
In enacting Republic Act No. 9369,
Congress expressly wrote the Lanot
doctrine into the second sentence, third paragraph, Sec. 15 of Republic Act No.
8436, which states that “[a]ny person who files his certificate of candidacy
within [the period for filing COCs] shall only be considered as a candidate at
the start of the campaign period for which he filed his certificate of
candidacy.”
The
majority, therefore, concludes that the ponente
cannot reverse Lanot without repealing
the above sentence, since to reverse Lanot
would mean repealing the said sentence.
The ponente, however, in
reversing Lanot does not claim that
the second sentence or any portion of Section 15 of RA 8436, as amended by RA
9369, is unconstitutional. Thus, the Decision
dated
The majority opinion
arrives at an erroneous conclusion based on a faulty premise.
Lanot was decided on the basis of the requirement therein that
there must be first a candidate
before the prohibited act of premature campaigning may be committed.
In Lanot v. Commission on Elections,[9]
Lanot, et al., filed a petition for
disqualification against the then
The Court, speaking through
Justice Carpio, adjudged that Eusebio was not liable for premature campaigning
given that the latter committed partisan political acts before he became a candidate.
The Court
construed the application of Section 11 of Republic Act No. 8463 vis-à-vis the provisions of Sections 80
and 79(a) of the Omnibus Election Code.
Section 11 of Republic Act No. 8436 moved the deadline for the filing of
certificates of candidacy to 120 days before election day. The Court ruled
that the only purpose for the early filing of COCs was to give ample time for
the printing of official ballots. Congress, however, never intended the early filing
of a COC to make the person filing to become immediately a “candidate” for
purposes other than the printing of ballots. This legislative intent
prevented the immediate application of Section 80 of the Omnibus Election Code
to those filing to meet the early deadline. The clear intention of
Congress was to preserve the “election
periods as x x x fixed by existing law” prior to Republic Act No.
8436 and that one who files to meet the
early deadline “will still not be considered as a candidate.”[10]
Simply stated, the Court
adjudged in Lanot that when Eusebio
filed his COC to meet the early deadline set by COMELEC, he did not thereby
immediately become a candidate. Thus,
there was no premature campaigning since there was no candidate to begin
with. It is on this ground that the majority
reversed Lanot.
The ponente reiterates that the existence of a candidate is not
necessary before premature campaigning may be committed. Section 80 of the Omnibus Election Code
unequivocally provides that “[i]t 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.”
Very specific are the wordings of the law that the individual who may be
held liable to commit the unlawful act of premature campaigning can be any
person: a voter or non-voter, a candidate or a non-candidate.
Furthermore, as already previously discussed,
Section 80 of the Omnibus Election Code was not repealed by Section 15 of RA 8436, as amended by
RA 9369. In construing the said
provisions, as well as that of Section 79(a) of the Omnibus Election Code,
which defines the meaning of the term candidate, the majority has settled that,
after the filing of the COC but before the start of
the campaign period, a person is yet to be considered a formal candidate. Nonetheless, by filing the COC, the person
categorically and explicitly declares his/her intention to run as a
candidate. Thereafter, if such person
commits the acts enumerated
under Section 79(b) of the Omnibus Election Code, said acts can already be
construed as
for the purpose of promoting his/her intended candidacy.
Thus, contrary to the
majority opinion, the Decision dated
The majority also
stresses that in the enactment of Republic Act No. 9369, Congress inserted the
word “only” to the first proviso in the third paragraph of
Section 11 of Republic Act No. 8436 so that the same now reads:
Provided, That, unlawful acts or omissions applicable to a candidate shall take
effect only upon the start of the
aforesaid campaign period.
Thus, Congress even
strengthened its mandatory directive that election offenses can be committed by
a candidate “only” upon the start of the campaign period. Accusing the ponente of giving a specious reasoning in explaining the above proviso, the majority points out to the
basic principle of law that any act is lawful, unless expressly declared as
unlawful. Therefore, the majority claims that there was no need
for Congress to declare in Section 15 of Republic Act No. 8436, as amended,
that partisan political activities before the start of the campaign period are
lawful. The
logical conclusion is that partisan political acts, if done before the start of
the campaign period, are lawful.
According to the majority, 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 ponente takes exception to the above sweeping and unwarranted
reasoning. Not all election offenses are
required to be committed by a candidate and, like the prohibited act of
premature campaigning, not all election offenses are required to be committed
after the start of the campaign period.
To reiterate, Section 80 of the Omnibus Election Code, which defines the
prohibited act of premature campaigning is still good law despite the passage
of Section 15 of Republic Act No. 8436, as amended. Precisely, the conduct of election campaign
or partisan political activity before the campaign period is the very evil that
Section 80 seeks to prevent.
The majority opinion
maintains its objection to the allegedly strained construction and/or
interpretation of the ponente of the
particular provisions involved in this case.
With equal vehemence, however, the ponente
adamantly rejects the majority’s absurd and unwarranted theory of repeal of
Section 80 of the Omnibus Election Code put forth in both the Dissenting
Opinion to the Decision dated
As the majority
repeatedly pointed out, Section 15 of Republic Act No. 8436, as amended by
Republic Act No. 9369, was enacted merely to give the COMELEC ample time for
the printing of ballots. Section 80 of
the Omnibus Election Code, on the other hand, is a substantive law which
defines the prohibited act of premature campaigning, an election offense
punishable with the gravest of penalties that can be imposed on a candidate, i.e., disqualification or, if elected,
removal from office. If the majority
opinion indignantly rejects the attempts of the ponente to reconcile the provisions of Section 80 of the Omnibus
Election Code and Section 15 of Republic Act No. 8436, as amended, then why
should they insist on repealing the former provision and not the latter?
The ponente emphasizes that whether
the election would be held under the manual or the automated system, the need
for prohibiting premature campaigning – to level the playing field between the
popular or rich candidates, on one hand, and the lesser-known or poorer
candidates, on the other, by allowing them to campaign only within the same
limited period – remains. Again, the
choice as to who among the candidates will the voting public bestow the
privilege of holding public office should not be swayed by the shrewd conduct,
verging on bad faith, of some individuals who are able to spend resources to
promote their candidacies in advance of the period slated for campaign
activities.
However, by virtue of the
Resolution of the majority, premature campaigning will now be officially
decriminalized and, as a consequence, the value and significance of having a
campaign period will now be utterly negated.
Thus, one year, five years or even ten years prior to the day of the
elections, a person aspiring for public office may now engage in election
campaign or partisan political activities to promote his candidacy, with
impunity. All he needs to have is a very
deep campaign war chest to be able to carry out this shrewd activity.
Indeed, while fair
elections has been dealt a fatal blow by the Resolution of the majority, it is
fervently hoped that the writing of the Decision dated 11 September 2009 and
this Dissenting Opinion will not be viewed as an effort made in vain if in the
future the said Resolution can be revisited and somehow rectified.
Premises
considered, there is no reason to reverse and set aside the earlier ruling of
the Court rendered in this case.
I,
therefore, vote to DENY WITH FINALITY
the Motion for Reconsideration filed by Rosalinda A. Penera on the Decision
dated
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MINITA V. CHICO-NAZARIO
Associate Justice |
[1] Rollo, pp. 439-469.
[2] Rollo, p. 441.
[3] Rollo, p. 452.
[4] Rollo, p. 455.
[5] Rollo, p. 459.
[6] Rollo, p. 465.
[7] Rollo, p. 455. Under Section 7, Rule 4 of the Commission on Elections Rules of Procedure, EO stands for Election Offenses.
[8] The relevant provision in Republic Act No. 8436 is Section 11, which pertinently provides:
SECTION 11. Official ballot. – x x x
x x x x
For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: x x x: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period[.]
[9] G.R.
No. 164858,
[10] Lanot v.
Commission on Elections, G.R. No. 164858,