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Is Premature Campaigning Still an Election Offense? The Case of Penera vs. COMELEC (G.R. No. 181613; 25 November 2009)

Posted by lexforiphilippines on January 29, 2010

In Penera vs. COMELEC (G.R. 181613; 25 November 2009), the Supreme Court reversed its earlier decision (dated 11 September 2009) to disqualify a candidate (Penera) for premature campaigning. According to the High Court, at the time the supposed premature campaigning took place, Penera was not officially a “candidate” albeit she already filed her certificate of candidacy. Under Section 15 of Republic Act 8436, as amended by Republic Act 9369, a person who files his certificate of candidacy is considered a candidate only at the start of the campaign period, and unlawful acts applicable to such candidate take effect only at the start of such campaign period. Construing this law, the Supreme Court concluded that a candidate is liable for an election offense only for acts done during the campaign period, not before. Before the start of the campaign period, such election offenses cannot be committed and any partisan political activity is lawful. (For a comprehensive digest of the case, please click Digested Cases under Tools.)

Frankly and with due respect to the Court, I do not agree with the decision as it practically makes “premature campaigning” impossible to commit. No candidate will ever be held liable for premature campaigning even though this act is still prohibited under our present state of laws. Section 80 of the Omnibus Election Code, which prohibits this act, has not been repealed and remains good law.

The essence of premature campaigning is that the promotion/campaign is done outside the campaign period. It does not matter when a person officially becomes a candidate. If he promoted himself for election purposes before the campaign period, he should be disqualified if he pursues his candidacy. Otherwise, the very purpose of the proscription against premature campaigning will be defeated. Indeed, how can we say that the playing field among candidates has been leveled and that we can expect fair elections, when candidates will be allowed to promote themselves in advance and with impunity.

Besides, as observed by the Supreme Court in its earlier (11 September 2009) ruling, the prohibition against premature campaigning, under Section 80 of the Omnibus Election Code, applies to any person, whether a voter or a candidate. This only underscores that one does not have to be officially a candidate at the time of the alleged premature campaigning to be liable for an election offense.

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