Wednesday, November 18, 2009

Two Views on Premature Campaigning

Two Views on Premature Campaigning

A recent decision of the Supreme Court has begun to have a discombobulating effect on candidates and political parties. The justices split in a sharply divided decision, 8-7. The majority said, Yes, dear aspiring candidates, the prohibition of premature campaigning is very much alive and can cause your disqualification. The minority for its part said, No the law has been amended and it is now impossible for anyone to commit the offense of premature campaigning.

When one considers that more justices will be replaced before the year ends, one reaction might be to ask how a reconstituted Supreme Court might decide a similar issue in the next few months. Changes in Court membership can change a precarious balance of votes on any issue.

It all started when an aspiring municipal mayor on the day she registered her certificate of candidacy had herself accompanied by a motorcade around various barangays, complete with banners and balloons. Unfortunately for her the motorcade took place one day before the allowable campaign period. She won the election, but only to be disqualified for having prematurely campaigned.

The majority decision was based on Sections 68, 79{a) and 80 of the Omnibus Election Code. Section 80 says: “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 . . .” And according to Section 68 any candidate who is found by the Commission on Election to have violated the provision “shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office.” Moreover, a candidate is defined by Section 79(a) as “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.”

From the above it can be seen that to commit an act that will subject a person to disqualification, that person must be a candidate. Thus, it is important to determine who is considered a candidate. Section 79(a) says that a candidate is “any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties.”

The dissenting opinion, however, contends that the definition of a candidate has been changed by an amendatory provision in R.A. 9369 which says: “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.” Thus, according to the dissent, to make a person a candidate subject to disqualification two elements are required: first, he must file his certificate of candidacy; and second, the campaign period must start. Therefore, acts committed before the campaign period starts are within the realm of a citizen’s protected freedom of expression; acts during the campaign period are legitimate. Because of this, the dissent concludes, the election offense in Section 80 of the Omnibus Election Code is practically impossible to commit at any time.

That should make the sponsors of infomercials rejoice. But not too fast! The majority of eight insists that the laws on premature campaigning has not changed. Principal reliance of the majority is on a rule in statutory construction which disfavors implied repeal. The ponencia says: “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.”

To the argument that prior to the campaign period the person is not yet deemed a candidate, the ponencia replies: “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.”

This argument seems to me analogous to ex post facto magic. He committed no offense when he performed the act, but he became guilty later by operation of law.

For the dissenters, however, there is no call for statutory construction because the provision “is crystal clear in its meaning.” But the ponencia sees no clarity in it. “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.” The ponencia sees no such explicit declaration.

What is obvious to me in all this is that both sides are firm in their reading of the law. If I were a candidate or an aspiring candidate, I would feel more secure living and acting under the law if the decision had been less shaky than an 8 to 7 majority.

21 September 2009

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