G.R. No. 181613 – ROSALINDA A. PENERA, Petitioner,  versus COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents.

 

 

 

                                                                           Promulgated:

 

                                                                           September 11, 2009

 

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DISSENTING OPINION

 

 

 

 CARPIO, J.:

 

           

         The ponencia disqualified Rosalinda A. Penera (Penera) from running for the office of Mayor of Sta. Monica, Surigao del Norte and declared the proclaimed Vice-Mayor as the rightful successor to the resulting permanent vacancy.  I submit that the ponencia made an erroneous ruling:  Penera should remain as Mayor of Sta. Monica, Surigao del Norte and the charge against Penera should be dismissed.

 

         Edgar T. Andanar (Andanar) filed a Petition for Disqualification against Penera, as well as the candidates for Vice-Mayor and Sangguniang Bayan who belonged to her political party, for unlawfully engaging in election campaigning and partisan political activity prior to the start of the campaign period.  Penera expressly admitted that after filing her certificate of candidacy with the COMELEC office on 29 March 2007, she and her co-respondents had a motorcade of two jeepneys and two motorcycles.  The motorcade proceeded to three barangays while Penera’s supporters threw candies to the crowd.  The COMELEC Second Division disqualified Penera for violation of Sections 80 and 68 of the Omnibus Election Code, and the COMELEC En Banc denied Penera’s motion for reconsideration.  The ponencia affirms the COMELEC’s rulings.

        

         I submit that the ponencia’s application of Sections 80 and 68 of the Omnibus Election Code and of our ruling in Lanot is erroneous. 

 

         The President signed Republic Act 9369 (R.A. 9369) on 23 January 2007.  Two newspapers of general circulation, Malaya and Business Mirror, published R.A. 9369 on 26 January 2007.  R.A. 9369 thus took effect on 10 February 2007, or long before the filing of Penera’s certificate of candidacy on 29 March 2007.  The third paragraph of Section 15 of R.A. 8436, as amended by Section 13 of R.A. 9369, now reads, thus:

 

   Sec. 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 positions to be filled and/or the propositions 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 voted upon, the choices should be uniformly indicated using the same font and 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.
 
             For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for 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: 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 facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy.

  Political parties may hold political conventions to nominate their official candidates within thirty (30) days before the start of the period for filing a certificate of candidacy.

             With respect to a paper-based election system, the official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizen’s arms of the Commission shall assign watchers in the printing, storage and distribution of official ballots.

  To prevent the use of fake ballots, the Commission through the Committee shall ensure that the necessary safeguards, such as, but not limited to, bar codes, holograms, color shifting ink, microprinting, are provided on the ballot.

  The official ballots shall be printed and distributed to each city/municipality at the rate of one ballot for every registered voter with a provision of additional three ballots per precinct. (Boldfacing and underscoring supplied)

      

         The only purpose for the early filing of certificates of candidacy is to give ample time to COMELEC for the printing of the ballots.  Because of our 2006 decision in Lanot v. Commission on Elections,[1] our lawmakers deemed it necessary to further specify in R.A. 9369 that “any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy.”  This sentence was not in R.A. 8436.

 

         The ponencia relies on Sections 80 and 68 of the Omnibus Election Code.  Section 80 states that “[i]t shall be unlawful for any person x x x to engage in an election campaign or partisan political activity except during the campaign period: x x x.”  Section 68 states that violators of Section 80 “shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office.”

 

         The ponencia also relies on this Court’s enumeration in Lanot of the elements of premature campaigning under Section 80 of the Omnibus Election Code: (1) a person engages in an election campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular candidate or candidates; and (3) the act is done outside the campaign period.  However, in her reply to this dissent, the ponente quoted from Lanot, “[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,” and stated that the quoted portion was erroneous.  I submit, however, that the quote was taken out of context.  The ponente merely quoted in isolation and conveniently ignored the succeeding paragraph enumerating the elements of premature campaigning which she also quoted in her ponencia.  The ponencia pointed out that a private person, not just a candidate, can commit the crime of premature campaigning.  True, but before a private person can commit the crime, there must first be another person who is already considered by law a “candidate.” Section 79(b) of the Omnibus Election Code provides that “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 public office.”  Thus, there can be no premature “election campaign” or “partisan political activity” unless there is a “candidate.”

 

         Section 80 of the Omnibus Election Code is not applicable to the present case because the second element requires the existence of a “candidate.”  The definition of a “candidate” in Section 79(a) of the Omnibus Election Code should be read together with the amended Section 15 of R.A. 8436.  A “‘candidate’ refers to 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.”  However, it is no longer enough to merely file a certificate of candidacy for a person to  be considered  a  candidate  because   “any person who files his

certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy.”  Any person may thus file a certificate of candidacy on any day within the prescribed period for filing a certificate of candidacy yet that person shall be considered a candidate, for purposes of determining one’s possible violations of election laws, only during the campaign period.  Indeed, there is no “election campaign” or “partisan political activity”[2] designed to promote the election or defeat of a particular candidate or candidates to public office simply because there is no “candidate” to speak of prior to the start of the campaign period.  Therefore, despite the filing of her certificate of candidacy, the law does not consider Penera a candidate at the time of the questioned motorcade which was conducted a day before the start of the campaign period.   In the same manner, when the law states that one is a candidate only at the start of the campaign period, determining whether any private person committed premature campaigning for a particular candidate can only be made once that prospective candidate actually files a certificate of candidacy.

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

 

         Because of the third paragraph of Section 15 of R.A. 8436, as amended by Section 13 of R.A. 9369, the election offense in Section 80 of the Omnibus Election Code is practically impossible to commit at any time.  This flaw in the law, which defines a criminal act, cannot be construed against Penera but must be interpreted in her favor.

 

         The ponente insists on using a technical rule of statutory construction.  The ponente relies on the rule against implied repeals. However, the amendment by R.A. 9369 of Section 15 of R.A. 8436 is not a case of implied repeal but of express repeal.  The title of R.A. 9369 expressly mentioned the amendment of the Omnibus Election Code:  “An Act Authorizing the Commission on Elections to Use an Automated Election System x x x, Amending for the Purpose Batas Pambansa Blg. 881,         x x x.”[3]  Section 47, the repealing clause of R.A. 9369, states that “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.” 

         The amendment by R.A. 9369 of Section 15 of R.A. 8436 expressly declares that “unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period.”  This amendment expressly repeals Section 80 of the Omnibus Election Code which states that “it shall be unlawful for any person x x x to engage in an election campaign or partisan political activity except during the campaign period.”   In any event, even assuming that there is no express repeal, there is absolute and irreconcilable incompatibility between Section 15 of R.A.  8436, as amended, and Section 80 of the Omnibus Election Code.  One provision states that campaigning before the start of the campaign period is lawful while the other provision states that campaigning before such period is unlawful.  In such a case, the later law, which is R.A. 9369, shall prevail.

 

         There is certainly no room for statutory construction in this case.  Section 15 of R.A. 8436, as amended by R.A. 9369, is crystal clear and requires no statutory construction.  Section 15, as amended, expressly provides, “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.”  This amendment expressly provides that a person becomes a candidate only at the start of the campaign period.  This amendment further expressly provides that unlawful acts or omissions applicable to a candidate take effect only at the start of the campaign period.  Nothing can be clearer that any act or omission done before the start of the campaign period, such as campaigning, is not punishable.  Where the law is clear and leaves no room for interpretation, resort to statutory construction is not allowed. 

 

 

         The ponente also conveniently ignored that penal laws are liberally construed in favor of the offender.  The Omnibus Election Code is an example of a penal law since it imposes  penalties for violation of its provisions.  The ponencia’s strained interpretation of the application of Section 80 of the Omnibus Election Code  to the present case is egregiously unnecessary.  The facts of the case are clear:  Penera committed acts for which there are no  penalties. 

 

         We apply the theory of the majority to the 2010 elections.  Under the theory of the majority, a person who files his certificate of candidacy between 20-30 November 2009 cannot say anything about his candidacy until 9 February 2010, the start of the campaign period.  Any act of such person, including all political advertisements in all media, can be interpreted as premature campaigning.  Worse, even acts done before the filing of the certificate of candidacy will be covered by the majority’s prohibition on premature campaigning.  All candidates who aired “infomercials” prior to the filing of their certificates of candidacy will be subject to disqualification the moment they file their certificates of candidacy.  This will disqualify practically all the prospective presidential candidates who are now leading in the surveys.

 

         The factual circumstances and consequent ruling in Chavez v. Commission on Elections[4] differ from the present case precisely because of R.A. 9369.   Petitioner Francisco I. Chavez entered into a number of agreements for product endorsements a few months before he filed his certificate of candidacy for Senator on 30 December 2003.  On 6 January 2004, COMELEC issued Resolution No. 6520, Section 32 of which reads:

 

  Section 32.  All propaganda materials such as posters, streamers, stickers or paintings on walls and other materials showing the picture, image, or name of a person, and all advertisements shown in print, in radio or on television showing the image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a candidate for public office shall be immediately removed by said candidate and radio station, print media or television station within 3 days after the effectivity of these implementing rules; otherwise, he and said  radio station, print media or television station shall be presumed to have conducted premature campaigning in violation of Section 80 of the Omnibus Election Code.

 

Chavez asked for exemption from Section 32 because the billboards are mere product endorsement and cannot be construed as election paraphernalia.  The COMELEC, however, ordered Chavez to remove or cause the removal of the billboards, or to cover them from public view during the pendency of his request for approval.  Chavez asked this Court to declare Section 32 unconstitutional.

 

         This Court upheld the validity of Section 32. Chavez’s possible offense is the non-removal of the described propaganda materials three days after the effectivity of COMELEC Resolution No. 6520.  Failure to remove the propaganda materials will put Chavez under the presumption of conducting premature campaigning in violation of Section 80 of the Omnibus Election Code. The Chavez ruling declared that Chavez’s billboards featuring his name and image for product endorsements assumed partisan political character because the same indirectly promoted his candidacy.  The Court further held that the COMELEC merely exercised its duty to regulate the use of election propaganda materials, and upheld the validity of disallowance of the continued display of a person’s propaganda materials and advertisements after he has filed a certificate of candidacy and before the start of the campaign period. 

 

         At the time Chavez was decided by this Court, R.A. 9369 was not yet enacted into law.  We cannot stress enough that when Section 13 of R.A.  9369 amended  the third paragraph of Section 15 of R.A. 8436, it added “any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy.”

 

         The effects brought about by premature campaigning as enunciated in Chavez are real.  However, with the enactment of R.A. 9369, our lawmakers have decided to do away with the imposition of a penalty on premature campaigning.  It is not for this Court to question the wisdom of the policy behind legislative enactments.

 

         I vote to GRANT the petition.  The Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and the COMELEC En Banc, respectively, in SPA No. 07-224, should be SET ASIDE.  Rosalinda A. Penera should still be the Mayor of Sta. Monica, Surigao del Norte.

 

 

 

                                                               ANTONIO T. CARPIO

                                                                     Associate Justice


[1]     G.R. No. 164858, 16 November 2006, 507 SCRA 114.

[2]        Section 79(b) of the Omnibus Election Code reads in part: 

 

                                      Section 79. Definitions. — (a) 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.

[3]     Batas Pambansa Blg. 881 is the Omnibus Election Code.

[4]     480 Phil. 915 (2004).