EN
BANC
|
ROSALINDA A. PENERA, Petitioner, -
versus - COMMISSION ON ELECTIONS and EDGAR T.
ANDANAR, Respondents. |
|
G. R. No. 181613 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, CORONA, CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA,
BERSAMIN,
ABAD, JJ. Promulgated: September 11, 2009 |
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CHICO-NAZARIO, J.:
This
Petition for Certiorari with Prayer
for the Issuance of a Writ of Preliminary Injunction and/or Temporary
Restraining Order [1] under
Rule 65, in relation to Rule 64 of the Rules of Court, seeks the nullification
of the Resolution[2] dated
The
antecedents of the case, both factual and procedural, are set forth hereunder:
Penera
and private respondent Edgar T. Andanar (Andanar) were mayoralty candidates in
Sta. Monica during the
On
2 April 2007, Andanar filed before the Office of the Regional Election
Director (ORED), Caraga Region (Region XIII), a Petition for Disqualification[4]
against Penera, as well as the candidates for Vice-Mayor and Sangguniang Bayan who belonged to her political
party,[5] for
unlawfully engaging in election campaigning and partisan political activity
prior to the commencement of the campaign period. The petition was docketed as SPA No.
07-224.
Andanar
claimed that on
Penera
alone filed an Answer[7]
to the Petition on
Also on
After the parties
filed their respective Position Papers, the records of the case were
transmitted to the COMELEC main office in
While SPA No. 07-224 was pending before the
COMELEC Second Division, the
On
The COMELEC Second Division found
that:
On the afternoon of 29 March 2007, the 1st
[sic] day to file the certificates of candidacy for local elective positions
and a day before the start of the campaign period for the May 14, 2007
elections – [some of the members of the political party Partido Padajon Surigao],
headed by their mayoralty candidate “Datty” Penera, filed their respective
Certificates of Candidacy before the Municipal Election Officer of Sta. Monica,
Surigao del Norte.
Accompanied by a bevy of supporters, [Penera
and her partymates] came to the municipal COMELEC office on board a convoy of
two (2) trucks and an undetermined number of motorcycles, laden with balloons
ad [sic] posters/banners containing names and pictures and the municipal
positions for which they were seeking election.
Installed with [sic] one of the trucks was a public speaker sound
subsystem which broadcast [sic] the intent the [sic] run in the coming
elections. The truck had the posters of
Penera attached to it proclaiming his [sic] candidacy for mayor. The streamer of [Mar Longos, a candidate for
the position of Board Member,] was proudly seen at the vehicle’s side. The group proceeded to motorcade until the
barangays of Bailan, Libertad and as afar [sic] as Mabini almost nine (9)
kilometers from Sta. Monica. [Penera and
her partymates] were seen aboard the vehicles and throwing candies to the
residents and onlookers.
Various affidavits and pictures were
submitted elucidating the above-mentioned facts. The above facts were also admitted in the
Answer, the Position Paper and during the hearings conducted for this case, the
only defense propounded by [Penera] is that such acts allegedly do not
constitute campaigning and is therefore not proscribed by the pertinent
election laws.
x x x x
What we however find disturbing is [Penera’s]
reference to the Ampig Case as the
justification for the acts committed by [her].
There is really no reference to the acts or similar acts committed by
[Penera] as having been considered as not constituting political campaign or
partisan political activity. The issue
in that case is whether or not the defect of the lack of a certification
against non-forum [sic] shopping should result to the immediate dismissal of
the election cases filed in that case.
There is nothing in said case justifying a motorcade during the filing
of certificates of candidacy. [Penera’s]
reliance thereon is therefore misplaced and of no potency at all.
x x x x
However, the photos submitted by [Andanar]
only identified [Penera] and did not have any notation identifying or
indicating any of the other [candidates from Penera’s party]. It cannot be conclusively proven that the
other [candidates from Penera’s party] were indeed with Penera during the
Motorcade. More importantly, the Answer
and the Position Paper contain admissions referring only to [Penera]. There is therefore no justification for a
whole sale [sic] disqualification of all the [candidates from Penera’s party],
as even the petition failed to mention particularly the participation of the
other individual [party members].[10]
The afore-quoted findings of fact led
the COMELEC Second Division to decree:
PREMISES
CONSIDERED, this Commission resolves to disqualify [Penera] but absolves the
other [candidates from Penera’s party] from violation of section 80 and 68 of
the Omnibus Elections [sic] Code.[11]
Commissioner
Florentino A. Tuason, Jr. (Tuason) wrote a Separate Opinion[12] on
the
It was the third member of the
COMELEC Second Division, Commissioner Rene V. Sarmiento (Sarmiento) who put
forth a Dissenting Opinion[13] on
the
Penera filed before the COMELEC en banc a Motion for Reconsideration[14] of
the 24 July 2007 Resolution of the COMELEC Second Division, maintaining that she
did not make any admission on the factual matters stated in the appealed
resolution. Penera also contended that the
pictures and Affidavits submitted by Andanar should not have been given any
credence. The pictures were mere
photocopies of the originals and lacked the proper authentication, while the Affidavits
were taken ex parte, which would
almost always make them incomplete and inaccurate. Subsequently, Penera filed a Supplemental
Motion for Reconsideration,[15] explaining
that supporters spontaneously accompanied Penera and her fellow candidates in
filing their COCs, and the motorcade that took place after the filing was
actually part of the dispersal of said supporters and their transportation back
to their respective barangays.
In the Resolution dated
WHEREFORE, this Commission RESOLVES to DENY the
instant Motion for Reconsideration filed by [Penera] for UTTER LACK OF MERIT.[16]
The COMELEC en banc ruled that Penera could no longer advance the arguments set
forth in her Motion for Reconsideration and Supplemental Motion for
Reconsideration, given that she failed to first express and elucidate on the
same in her Answer and Position Paper.
Penera did not specifically deny the material averments that the
motorcade “went as far as Barangay Mabini, announcing their candidacy and
requesting the people to vote for them on Election Day,” despite the fact that
the same were clearly propounded by Andanar in his Petition for
Disqualification and Position Paper. Therefore,
these material averments should be considered admitted. Although the COMELEC en banc agreed that no undue importance should be given to sworn
statements or affidavits submitted as evidence, this did not mean that such affidavits
should not be given any evidentiary weight at all. Since Penera neither refuted the material
averments in Andanar’s Petition and the Affidavits attached thereto nor submitted
countervailing evidence, then said Affidavits, even if taken ex parte, deserve some degree of
importance. The COMELEC en banc likewise conceded that the pictures
submitted by Andanar as evidence would have been unreliable, but only if they
were presented by their lonesome.
However, said pictures, together with Penera’s admissions and the Affidavits
of Andanar’s witnesses, constituted sufficient evidence to establish Penera’s
violation of the rule against premature campaigning. Lastly, the COMELEC en banc accused Penera of deliberately trying to mislead the
Commission by citing Barroso, given
that the said case was not even remotely applicable to the case at bar.
Consistent with his previous stand, Commissioner
Sarmiento again dissented[17] from
the
Still undeterred, Penera filed the
instant Petition before us, praying that the Resolutions dated 24 July 2007 and
30 January 2008 of the COMELEC Second Division and en banc, respectively, be declared null and void for having been
issued with grave abuse of discretion amounting to lack or excess of
jurisdiction.
In a Resolution[18]
dated P5,000.00. We
also directed COMELEC and Andanar to comment on the instant Petition.
After the COMELEC, through the Office
of the Solicitor General (OSG), and Andanar filed their respective Comments[19] on
the Petition at bar, we required Penera, in a Resolution[20]
dated
Penera presents the following issues
for our consideration:
I.
Whether or not [Penera] has engaged in an election campaign or partisan political activity outside the campaign period.
II.
Whether the contents of the complaint are deemed admitted for failure of [Penera] to specifically deny the same.
III.
Whether or not [Andanar] has presented competent and substantial evidence to justify a conclusion that [Penera] violated Section 80 and 68 of the Omnibus Election Code.
IV.
Whether or not [the COMELEC] committed grave abuse of discretion amounting to lack of or in excess of jurisdiction in finding that the act of [Penera] in conducting a motorcade before the filing of her certificate of candidacy constitutes premature campaigning.
V.
Whether or not [the COMELEC] committed grave abuse of discretion amounting to lack of or in excess of jurisdiction when it resolves [sic] to disqualify [Penera] despite the failure of [Andanar] to present competent, admissible and substantial evidence to prove [the] violation of Section 68 and 80 of the Omnibus Election Code.
Penera claims that the COMELEC exercised
its discretion despotically, arbitrarily and whimsically in disqualifying her
as a mayoralty candidate in Sta. Monica on the ground that she engaged in
premature campaigning. She asserts that
the evidence adduced by Andanar was grossly insufficient to warrant the ruling
of the COMELEC.
Penera insists that the COMELEC
Second Division erred in its findings of fact, basically adopting Andanar’s
allegations which, contrary to the belief of the COMELEC Second Division,
Penera never admitted. Penera maintains
that the motorcade was spontaneous and unplanned, and the supporters merely
joined Penera and the other candidates from her party along the way to, as well
as within the premises of, the office of the COMELEC
Municipal Election Officer. Andanar’s
averments – that after Penera
and the other candidates from her party filed their COCs, they held a motorcade
in the different barangays of Sta.
Monica, waived their hands to the public and threw candies to the onlookers –
were not supported by competent substantial evidence. Echoing Commissioner Sarmiento’s dissent from the
assailed COMELEC Resolutions, Penera argues that too much weight and credence were
given to the pictures and Affidavits submitted by Andanar. The declaration by the COMELEC that it was
Penera in the pictures is tenuous and erroneous, as the COMELEC has no personal
knowledge of Penera’s identity, and the said pictures do not clearly reveal the
faces of the individuals and the contents of the posters therein. In the same vein, the Affidavits of Andanar’s known supporters, executed almost a month
after Andanar filed his Petition for Disqualification before the ORED-Region
XIII, were obviously
prepared and executed by one and the same person, because they have a similar
sentence construction, and computer font and form, and were even sworn to
before the same attesting officer on the same date.
We find no merit in the instant Petition.
The questions of fact
Crystal clear from the above arguments
is that Penera is raising only questions of fact in her Petition presently before
us. We do not find any reason to pass
upon the same, as this Court is not a trier of facts. It is not the function of the Court to
review, examine and evaluate or weigh the probative value of the evidence
presented. A question of fact would
arise in such an event.
The sole function of a writ of certiorari
is to address issues of want of jurisdiction or grave abuse of discretion, and
it does not include a review of the tribunal’s evaluation of the evidence.[25] Because of its fact-finding facilities and its knowledge derived from
actual experience, the COMELEC is in a peculiarly advantageous position to
evaluate, appreciate and decide on factual questions before it. Factual findings of the COMELEC, based on its
own assessments and duly supported by evidence, are conclusive on this Court,
more so in the absence of a grave abuse of discretion, arbitrariness, fraud, or
error of law in the questioned resolutions.
Unless any of these causes are clearly substantiated, the Court will not
interfere with the findings of fact of the COMELEC.[26]
Grave abuse of discretion is such
capricious and whimsical exercise of judgment equivalent to lack of jurisdiction.
Mere abuse of discretion is not enough. It must be grave, as when it is exercised
arbitrarily or despotically by reason of passion or personal hostility. The abuse must be so patent and so gross as to
amount to an evasion of a positive duty or to a virtual refusal to perform the
duty enjoined or to act at all in contemplation of law.[27]
We find no grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the COMELEC Second
Division in disqualifying Penera as a mayoralty candidate
in Sta. Monica in the Resolution dated 24 July
2007; and also on the part of the COMELEC en
banc in denying Penera’s Motion for Reconsideration on the Resolution dated
30 January 2008. Said Resolutions are
sufficiently supported by substantial evidence, meaning, such evidence as a
reasonable mind might accept as adequate to support a conclusion.[28]
The prohibited act of
premature campaigning is defined under Section 80 of the Omnibus Election Code,
to wit:
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: Provided, That
political parties may hold political conventions or meetings to nominate their
official candidates within thirty
days before the commencement of the campaign period and
forty-five days for Presidential and Vice-Presidential election.
(Emphasis ours.)
If the commission of the prohibited
act of premature campaigning is duly proven, the consequence of the violation
is clearly spelled out in Section 68 of the said Code, which 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 xxx (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. Any person who is a
permanent resident of or an immigrant to a foreign country shall not be
qualified to run for any elective office under this Code, unless said person
has waived his status as permanent resident or immigrant of a foreign country
in accordance with the residence requirement provided for in the election laws. (Emphases ours.)
In the case at bar, it
had been sufficiently established, not just by Andanar’s evidence, but also
those of Penera herself, that Penera and her partymates, after filing their COCs
on 29 March 2007, participated in a motorcade which passed through the
different barangays of Sta. Monica,
waived their hands to the public, and threw candies to the onlookers.
Indeed, Penera expressly
admitted in her Position Paper that:
Respondents actually had a motorcade of only two (2) jeppneys [sic] and ten
(10) motorcycles after filing their
Certificate of Candidacy at
Additionally, the Joint
Affidavit of Marcial Dolar, Allan Llatona, and Renante Platil, attached to
Penera’s Position Paper, gave an even more straightforward account of the
events, thus:
1.
That on March 29, 2007 at 3:00 P.M. at Sta. Monica,
Surigao del Norte, Mayoralty Candidates Rosalinda CA. Penera [sic] and her parties of
four (4) kagawads filed their certificate of candidacy at the COMELEC Office;
2.
That their [sic] was a motorcade consisting of two jeppneys [sic]
and 10 motorcycles after actual
registration with the COMELEC with jeeps decorated with balloons and a
streamer of Margarito Longos, Board Member Candidate;
3.
That the motorcade
proceeded to three (3) barangays out of the 11 barangays while supporters were
throwing sweet candies to the crowd;
4.
That there was merriment
and marching music without mention of any name of the candidates more
particularly lead-candidate Rosalinda CA. Penera [sic];
5.
That we were in the motorcade on that afternoon only riding in one
of the jeepneys.[30] (Emphases ours.)
In view of the foregoing
admissions by Penera and her witnesses, Penera cannot now be allowed to adopt a
conflicting position.
More importantly, the
conduct of a motorcade 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[.]” A motorcade is a
procession or parade of automobiles or other motor vehicles.[31] The conduct thereof during election periods
by the candidates and their supporters is a fact that need not be belabored due
to its widespread and pervasive practice.
The obvious purpose of the conduct of motorcades 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. Unmistakably, motorcades are undertaken for
no other purpose than to promote the election of a particular candidate or
candidates.
In the instant Petition,
Penera never denied that she took part in the conduct of the motorcade after
she filed her COC on the day before the start of the campaign period. She merely claimed that the same was not
undertaken for campaign purposes. Penera
proffered the excuse that the motorcade was already part of the dispersal of
the supporters who spontaneously accompanied Penera and her partymates in
filing their COCs. The said supporters
were already being transported back to their respective barangays after the COC filing.
Penera stressed that no speech was made by any person, and there was
only background marching music and a “grand standing for the purpose of raising
the hands of the candidates in the motorcade.
We are not
convinced.
As we previously noted,
Penera and her witnesses admitted that the vehicles, consisting of two jeepneys
and ten motorcycles, were festooned with multi-colored balloons; the motorcade
went around three barangays in Sta.
Monica; and Penera and her partymates waved their hands and threw sweet candies
to the crowd. With vehicles, balloons,
and even candies on hand, Penera can hardly persuade us that the motorcade was
spontaneous and unplanned.
For violating Section 80
of the Omnibus Election Code, proscribing election campaign or partisan
political activity outside the campaign period, Penera must be disqualified from
holding the office of Mayor of Sta. Monica.
The questions of law
The
dissenting opinion, however, raises the legal issue that Section 15 of Republic
Act No. 8436, as amended by Republic Act No. 9369, provides a new definition of
the term “candidate,” as a result of which, premature campaigning may no longer
be committed.
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.”
Republic Act No. 8436,[32]
enacted on
SECTION 11. Official ballot. - The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election inspectors shall affix his/her signature to authenticate the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
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: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice President, Senators and candidates under the Party-List System as well as petitions for registration and/or manifestation to participate in the Party-List System shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998. (Emphases ours.)
On
SECTION.15. Official
Ballot. - The Commission shall prescribe the format of the electronic
display and/or the size and form of the official ballot, which shall contain
the titles of the position to be filled and/or the proposition to be voted upon
in an initiative, referendum or plebiscite. Where practicable, electronic
displays must be constructed to present the names of all candidates for the
same position in the same page or screen, otherwise, the electronic displays
must be constructed to present the entire ballot to the voter, in a series of
sequential pages, and to ensure that the voter sees all of the ballot options
on all pages before completing his or her vote and to allow the voter to review
and change all ballot choices prior to completing and casting his or her
ballot. Under each position to be filled, the names of candidates shall be
arranged alphabetically by surname and uniformly indicated using the same type
size. The maiden or married name shall be listed in the official ballot, as
preferred by the female candidate. Under each proposition to be vote upon, the
choices should be uniformly indicated using the same font and size.
A fixed space where
the chairman of the board of election inspector shall affix her/her signature
to authenticate the official ballot shall be provided.
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 effect only upon the start of the aforesaid campaign
period: Provided, finally, That any person holding a public
appointive office or position, including active members of the armed forces,
and officers, and employees in government-owned or-controlled corporations,
shall be considered ipso factor resigned from his/her office and must
vacate the same at the start of the day of the filing of his/her certification
of candidacy. (Emphases ours.)
In view of the third paragraph of Section 15 of Republic
Act No. 8436, as amended, the Dissenting Opinion argues that Section 80 of the
Omnibus Election Code can not be applied to the present case since, as the
Court held in Lanot v. Commission on
Elections,[34]
the election campaign or partisan activity, which constitute the prohibited
premature campaigning, should be designed
to promote the election or defeat of a particular candidate or candidates. Under present election laws, while a person
may have filed his/her COC within the prescribed period for doing so, said
person shall not be considered a candidate until the start of the campaign
period. Thus, prior to the start of the
campaign period, there can be no election campaign or partisan political
activity designed to promote the election or defeat of a particular candidate
to public office because there is no candidate to speak of.
According to the Dissenting Opinion, even if
Penera’s acts before the start of the campaign period constitute election campaigning or
partisan political activities, these are not punishable under Section 80 of the
Omnibus Election Code given that she was not yet a candidate at that time. On the other hand, Penera’s acts, if
committed within the campaign period, when she was already a candidate, are
likewise not covered by Section 80 as this provision punishes only acts outside
the campaign period.
The Dissenting Opinion ultimately concludes that because of
Section 15 of Republic Act No. 8436, as amended, the prohibited act of
premature campaigning in Section 80 of the Omnibus Election Code, is
practically impossible to commit at any time.
We disagree. Section 80 of
the Omnibus Election Code remains relevant and applicable despite Section 15 of
Republic Act No. 8436, as amended.
A close reading of the entire Republic Act No. 9369, which
amended Republic Act No. 8436, would readily reveal that that it did not
contain an express repeal of Section 80 of the Omnibus Election Code. An express
repeal is one wherein a statute declares, usually in its repealing clause,
that a particular and specific law, identified
by its number or title, is repealed.[35] Absent this specific requirement, an express
repeal may not be presumed.
Although the title of
Republic Act No. 9369 particularly mentioned the amendment of Batas Pambansa
Blg. 881, or the Omnibus Election Code, to wit:
An Act Amending Republic
Act No. 8436, Entitled "An Act Authorizing the Commission on Elections to
Use an Automated Election System x x x, Amending for the Purpose Batas
Pambansa Blg. 881, As Amended x x x. (Emphasis ours.),
said title explicitly
mentions, not the repeal, but the amendment
of Batas Pambansa Blg. 881. Such fact
is indeed very material. Repeal of a law means its complete
abrogation by the enactment of a subsequent statute, whereas the amendment of a statute means an
alteration in the law already existing, leaving some part of the original still
standing.[36] Section 80 of the Omnibus Election Code is
not even one of the specific provisions of the said code that were expressly amended by Republic Act No. 9369.
Additionally, Section 46,[37]
the repealing clause of Republic Act No. 9369, states that:
Sec. 46. Repealing Clause. – All laws, presidential decrees, executive
orders, rules and regulations or parts thereof inconsistent with the provisions
of this Act are hereby repealed or modified accordingly.
Section 46 of Republic Act No. 9369 is a general
repealing clause. It is a clause which
predicates the intended repeal under the condition that a substantial conflict must be found in existing and prior acts. The failure to add a specific repealing
clause indicates that the intent was not to repeal any existing law, unless an
irreconcilable inconsistency and repugnancy exist in the terms of the new and
old laws. This latter situation falls
under the category of an implied repeal.[38]
Well-settled is the rule in statutory construction that
implied repeals are disfavored. In order
to effect a repeal by implication, the later statute must be so irreconcilably
inconsistent and repugnant with the existing law that they cannot be made to
reconcile and stand together. The
clearest case possible must be made before the inference of implied repeal may
be drawn, for inconsistency is never presumed.
There must be a showing of repugnance clear and convincing in
character. The language used in the
later statute must be such as to render it irreconcilable with what had been
formerly enacted. An inconsistency that
falls short of that standard does not suffice.[39]
Courts of justice, when confronted with apparently
conflicting statutes, should endeavor to reconcile
the same instead of declaring outright the invalidity of one as against the
other. Such alacrity should be
avoided. The wise policy is for the
judge to harmonize them if this is
possible, bearing in mind that they are equally the handiwork of the same
legislature, and so give effect to both while at the same time also according
due respect to a coordinate department of the government.[40]
To our mind, there is no
absolute and irreconcilable incompatibility between Section 15 of Republic
Act No. 8436, as amended, and Section 80 of the Omnibus Election Code, which
defines the prohibited act of premature campaigning. It is possible to harmonize and reconcile
these two provisions and, thus, give effect to both.
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,”[41]
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. Also, conversely, if
said person, for any reason, withdraws his/her COC before the campaign period,
then there is no point to view his/her acts prior to said period as acts for
the promotion of his/her election as a candidate. In the latter case, there can be no premature
campaigning as there is no candidate, whose disqualification may be sought, to
begin with.[42]
Third, in connection with the preceding discussion, the line in
Section 15 of Republic Act No. 8436, as amended, which provides that “any
unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period,” does not
mean that the acts constituting premature campaigning can only be committed,
for which the offender may be disqualified, during the campaign period.
Contrary to the pronouncement in the dissent, nowhere in the said proviso
was it stated that campaigning before the start of the campaign period is
lawful, such that the offender may freely carry out the same with impunity.
As previously
established, a person, after filing
his/her COC but prior to his/her becoming a candidate (thus, prior to the start
of the campaign period), can already commit
the acts described under Section 79(b) of the Omnibus Election Code as
election campaign or partisan political activity. However, only after said person officially
becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus
Election Code. Only after said person
officially becomes a candidate, at the start of the campaign period, can
his/her disqualification be sought
for acts constituting premature campaigning.
Obviously, it is only at the
start of the campaign period, when the person officially becomes a candidate,
that the undue and iniquitous advantages of his/her prior acts, constituting
premature campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only
about to begin their election campaign, a candidate who had previously engaged
in premature campaigning already enjoys an unfair headstart in promoting
his/her candidacy.
As can be gleaned from the foregoing disquisition, harmony
in the provisions of Sections 80 and 79 of the Omnibus Election Code, as well
as Section 15 of Republic Act No. 8436, as amended, is not only very possible,
but in fact desirable, necessary and consistent with the legislative intent and
policy of the law.
The laudable and exemplary intention behind the prohibition
against premature campaigning, as declared in Chavez v. Commission on Elections,[43]
is to level the playing field for candidates of public office, to equalize the
situation between the popular or rich candidates, on one hand, and lesser-known
or poorer candidates, on the other, by preventing the former from enjoying
undue advantage in exposure and publicity on account of their resources and
popularity. The intention for prohibiting premature
campaigning, as explained in Chavez,
could not have been significantly altered or affected by Republic Act No. 8436,
as amended by Republic Act No. 9369, the avowed purpose of which is to carry-on
the automation of the election system. 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.
We cannot stress strongly enough that premature campaigning
is a pernicious act that is continuously threatening to undermine the conduct
of fair and credible elections in our country, no matter how great or small the
acts constituting the same are. 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.
Verily, the consequences provided for in Section 68[44]
of the Omnibus Election Code for the commission of the prohibited act of
premature campaigning are severe: the candidate who is declared guilty of
committing the offense shall be disqualified from continuing as a candidate,
or, if he/she has been elected, from holding office. Not to mention that said candidate also faces
criminal prosecution for an election offense under Section 262 of the same
Code.
The Dissenting Opinion, therefore, should not be too quick to
pronounce the ineffectiveness or repeal of Section 80 of the Omnibus Election
Code just because of a change in the meaning of candidate by Section 15 of Republic Act No. 8436, as amended,
primarily, for administrative purposes. An
interpretation should be avoided under which a statute or provision being
construed is defeated, or as otherwise expressed, nullified, destroyed,
emasculated, repealed, explained away, or rendered insignificant, meaningless,
inoperative, or nugatory.[45] Indeed, not only will the prohibited act of
premature campaigning be officially decriminalized, the value and significance
of having a campaign period before the conduct of elections would also be
utterly negated. Any unscrupulous
individual with the deepest of campaign war chests could then afford to spend
his/her resources to promote his/her candidacy well ahead of everyone
else. Such is the very evil that the
law seeks to prevent. Our lawmakers
could not have intended to cause such an absurd situation.
The Dissenting Opinion attempts to brush aside our
preceding arguments by contending that there is no room for statutory
construction in the present case since Section 15 of Republic Act No. 8436,[46]
as amended by Section 13 of Republic Act No. 9369,[47]
is crystal
clear in its meaning. We disagree. There would only be no need for statutory
construction if there is a provision in Republic Act No. 8436 or Republic Act
No. 9369 that explicitly states that there shall be no more premature
campaigning. But absent the same, our
position herein, as well as that of the Dissenting Opinion, necessarily rest on
our respective construction of the legal provisions involved in this case.
Notably, while faulting us
for resorting to statutory construction to resolve the instant case, the Dissenting
Opinion itself cites a rule of statutory construction, particularly, that penal
laws should be liberally construed in favor of the offender. The Dissenting Opinion asserts that because
of the third paragraph in Section 15 of Republic Act No. 8436, as amended, the
election offense described in Section 80 of the Omnibus Election Code is
practically impossible to commit at any time and that this flaw in the law,
which defines a criminal act, must be construed in favor of Penera, the
offender in the instant case.
The application of the
above rule is uncalled for. It was
acknowledged in Lanot that a
disqualification case has two aspects: one, electoral;[48]
the other, criminal.[49] The instant case concerns only the electoral
aspect of the disqualification case. Any
discussion herein on the matter of Penera’s criminal liability for premature
campaigning would be nothing more than obiter
dictum. More importantly, as
heretofore already elaborated upon, Section 15 of Republic Act No. 8436, as
amended, did not expressly or even impliedly repeal Section 80 of the Omnibus
Election Code, and these two provisions, based on legislative intent and
policy, can be harmoniously interpreted and given effect. Thus, there is no flaw created in the law, arising from Section 15 of Republic Act
No. 8436, as amended, which needed to be construed in Penera’s favor.
The Dissenting
Opinion further expresses the fear that pursuant to our “theory,” all the
politicians with “infomercials” prior to the filing of their COCs would be
subject to disqualification, and this would involve practically all the
prospective presidential candidates who are now leading in the surveys.
This fear is utterly unfounded. It
is the filing by the person of his/her COC through which he/she explicitly
declares his/her intention to run as a candidate in the coming elections.
It is such declaration which would color the subsequent acts of said
person to be election campaigning or partisan political activities as described
under Section 79(b) of the Omnibus Election Code. It
bears to point out that, at this point, no politician has yet submitted his/her
COC. Also, the plain solution to
this rather misplaced apprehension is for the politicians themselves to adhere
to the letter and intent of the law and keep within the bounds of fair play in
the pursuit of their candidacies. This
would mean that after filing their COCs, the prudent and proper course for them
to take is to wait for the designated start of the campaign period before they
commence their election campaign or partisan political activities. Indeed, such is the only way for them to
avoid disqualification on the ground of premature campaigning. It is not for us to carve out exceptions to
the law, much more to decree away the repeal thereof, in order to accommodate
any class of individuals, where no such exception or repeal is warranted.
Lastly, as we have observed at the beginning, Penera’s
Petition is essentially grounded on questions of fact. Penera’s defense against her disqualification,
before the COMELEC and this Court, rests on the arguments that she and her
partymates did not actually hold a motorcade; that their supporters
spontaneously accompanied Penera and the other candidates from her political
party when they filed their certificates of candidacy; that the alleged
motorcade was actually the dispersal of the supporters of Penera and the other
candidates from her party as said supporters were dropped off at their
respective barangays; and that Andanar was not able to present competent,
admissible, and substantial evidence to prove that Penera committed premature
campaigning. Penera herself never raised the argument that she can no longer be
disqualified for premature campaigning under Section 80, in relation to Section
68, of the Omnibus Election Code, since the said provisions have already been,
in the words of the Dissenting Opinion, rendered “inapplicable,” “repealed,”
and “done away with” by Section 15 of Republic Act No. 8436, as amended. This legal argument was wholly raised by the
Dissenting Opinion.
As a rule, a party who deliberately adopts a certain theory
upon which the case is tried and decided by the lower court will not be
permitted to change theory on appeal. Points
of law, theories, issues, and arguments not brought to the attention of the
lower court need not be, and ordinarily will not be, considered by a reviewing
court, as these cannot be raised for the first time at such late stage. Basic considerations of due
process underlie this rule.[50] If we do not allow and consider the change in
theory of a case by a party on appeal, should we not also refrain from motu proprio adopting a theory which
none of the parties even raised before us?
Nonetheless, the questions of fact raised by Penera and
questions of law raised by the Dissenting Opinion must all be resolved against
Penera. Penera should be disqualified
from holding office as Mayor of Sta. Monica for having committed premature
campaigning when, right after she filed her COC, but still a day before the
start of the campaign period, she took part in a motorcade, which consisted of
two jeepneys and ten motorcycles laden with multi-colored balloons that went
around several barangays of Sta.
Monica, and gave away candies to the crowd.
Succession
Despite the
disqualification of Penera, we cannot grant Andanar’s prayer to be allowed to
assume the position of Mayor of Sta. Monica.
The well-established principle is that the ineligibility of
a candidate receiving majority votes does not entitle the candidate receiving
the next highest number of votes to be declared elected.[51]
In this case, the rules on succession under
the Local Government Code shall apply, to wit:
SECTION
44. Permanent
Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor.
– If a permanent vacancy occurs in the
office of the xxx mayor, the x x x vice-mayor concerned shall become the x x x mayor.
x
x x x
For
purposes of this Chapter, a permanent vacancy arises when an elective local
official fills a higher vacant office, refuses to assume office, fails to
qualify or is removed from office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the functions of his office. (Emphases ours.)
Considering Penera’s disqualification from holding
office as Mayor of Sta. Monica, the proclaimed Vice-Mayor shall then succeed as
Mayor.
WHEREFORE, premises considered, the instant Petition for Certiorari is hereby DISMISSED. The Resolutions dated
SO
ORDERED.
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MINITA V.
CHICO-NAZARIO
Associate Justice |
WE
CONCUR:
LEONARDO
A. QUISUMBING
Associate Justice |
CONSUELO
YNARES-SANTIAGO
Associate Justice |
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ANTONIO T. CARPIO Associate Justice |
RENATO C. CORONA Associate Justice |
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CONCHITA
CARPIO MORALES
Associate Justice |
PRESBITERO J. VELASCO, JR.
Associate Justice |
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ANTONIO
EDUARDO B. NACHURA
Associate Justice
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TERESITA
J. LEONARDO-DE CASTRO
Associate Justice
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ARTURO
D. BRION
Associate Justice |
DIOSDADO M. PERALTA Associate Justice |
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LUCAS P. BERSAMIN
Associate
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MARIANO C. DEL CASTILLO Associate Justice |
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ROBERTO A.
ABAD Associate Justice |
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Pursuant
to Article VIII, Section 13 of the Constitution, it is hereby certified that
the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court.
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REYNATO
S. PUNO
Chief Justice |
[1] Rollo, pp. 3-28.
[2] Penned by Commissioner Nicodemo T. Ferrer with Acting Chairman Resurreccion Z. Borra and Commissioners Romeo A. Brawner, Florentino A. Tuason, Jr., and Moslemen T. Macarambon, Sr., concurring, and Commissioner Rene V. Sarmiento, dissenting; rollo, pp. 41-52.
[3] Penned by Commissioner Nicodemo T. Ferrer with Commissioner Florentino A. Tuason, Jr., concurring, and Commissioner Rene V. Sarmiento, dissenting; id. at 29-40.
[4] Id.
at 53-54.
[5] Arcelito
Petallo, Renato Virtudazo, Glorina Aparente, Silverio Tajos, Jose Platil,
Medardo Sunico, Edelito Lerio and Sensualito Febra.
[6] Loreta
Billona, Hermilo Botona and Victorino Florendo; rollo, pp. 55-57.
[7]
[8] 385 Phil. 237 (2000).
[9] Rollo, p. 127.
[10]
[11]
[12] Id.
at 34-36.
[13] Id.
at 37-40.
[14] Id.
at 97-108.
[15] Id.
at 112-126.
[16]
[17] Id.
at 49-52.
[18] Id.
at 138.
[19] Id.
at 161-165, 190-208.
[20] Id.
at 210.
[21]
[22] Sec. 5. Grounds
for dismissal of appeal. – The appeal
may be dismissed motu proprio or on motion of the respondent on the
following grounds:
x
x x x
(e) Failure to comply with any circular,
directive or order of the Supreme Court without justifiable cause;
[23] Rollo, pp. 217-225.
[24]
[25] Bantay Republic Act or BA-RA 7941 v. Commission on Elections, G.R. No. 177271, 4 May 2007, 523 SCRA 11, cited in Cadangen v. Commission on Elections, G.R. No. 177179, 5 June 2009.
[26] Alvarez v. Commission on Elections, 405
Phil. 950, 959 (2001).
[27] Cantoria v. Commission on Elections, G.R. No. 162035, 26 November 2004, 444 SCRA 538, 543, cited in Basmala v. Commission on Elections, G.R. No. 176724, 6 October 2008, 567 SCRA 664, 668.
[28] Doruelo v. Commission on Elections, 218
Phil. 346 (1984).
[29] Rollo, p. 76.
[30]
[31] Motorcade. Dictionary.com. Dictionary.com
Unabridged (v 1.1). Random House, Inc.
http://dictionary.reference.com/browse/motorcade (accessed:
[32] AN ACT AUTHORIZING THE COMMISSION ON
ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE
[33] Republic Act No. 9369 is entitled “AN ACT AMENDING REPUBLIC ACT NO. 8436, ENTITLED ‘AN
ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM
IN THE
[34] G.R. No. 164858,
[35] Mecano v. Commission on Audit, G.R. No.
103982,
[36] Black’s
Law Dictionary (6th Ed [1990]), p. 1299.
[37] Erroneously
cited as Section 47 in the Revised Dissenting Opinion.
[38] Intia, Jr. v. Commission on Audit, 366
Phil. 273, 290 (1999), citing Mecano v.
Commission on Audit, supra note 35.
[39] Agujetas v. Court of Appeals, G.R. No. 106560,
[40] Ty v. Trampe, G.R. No. 117577, 1 December 1995, 250 SCRA 500, 514-515, citing Gordon v. Veridiano, 11 December 1992, 216 SCRA 500, 505-506.
[41] G.R. No. 164858,
[42] This
same reasoning holds true for a person (who is neither a candidate nor a voter)
who commits any of the acts described under Section 79(b) of the Omnibus
Election Code for the promotion of the election of another person who has already filed a certificate of candidacy;
the former shall be prosecuted for the election offense of premature
campaigning only in the event that the latter actually continues with his/her
candidacy after the start of the campaign period.
[43] 480 Phil.
915 (2004).
[44] Sec. 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 xxx (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 (Emphasis ours.)
[45] Paras v. Commission on Elections, 332
Phil. 56, 64 (1996).
[46] AN ACT AUTHORIZING THE COMMISSION ON
ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE
[47] AN ACT AMENDING REPUBLIC
ACT NO. 8436, ENTITLED "AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO
USE AN AUTOMATED ELECTION SYSTEM IN THE
[48] The electoral aspect of a disqualification case determines whether the offender should be disqualified from being a candidate or from holding office. Proceedings are summary in character and require only clear preponderance of evidence. An erring candidate may be disqualified even without prior determination of probable cause in a preliminary investigation. The electoral aspect may proceed independently of the criminal aspect, and vice-versa. (Lanot v. Commission on Elections, supra note 34.)
[49] The criminal aspect of a disqualification case determines whether there is probable cause to charge a candidate for an election offense. The prosecutor is the COMELEC, through its Law Department, which determines whether probable cause exists. If there is probable cause, the COMELEC, through its Law Department, files the criminal information before the proper court. Proceedings before the proper court demand a full-blown hearing and require proof beyond reasonable doubt to convict. A criminal conviction shall result in the disqualification of the offender, which may even include disqualification from holding a future public office. (Lanot v. Commission on Elections, supra note 34.)
[50] Spouses
[51] Labo,
Jr. v. Commission on Elections, 211 Phil. 297, 312 (1992).