Unsettling

Like all other human institutions, the Supreme Court (SC) is also imperfect and liable to make a mistake. Hence when it reconsiders a previous decision which is presumed to have been made after utmost research and careful deliberation, it is usually a good and reassuring sign of its humility in admitting and correcting a mistake.

Sometimes however, a complete turn-around from a previous decision may have some unsettling effects because that decision is not downright erroneous or entirely wrong especially when the Justices have concurring and dissenting opinions. A case in point is the recent ruling in Penera vs. Comelec (G.R. 181613, November 25, 2009) setting aside its previous decision (the Decision) dated September 11, 2009.

In the September 11, 2009 decision, the SC declared that a person who has filed his certificate of candidacy (COC) for an elective position has already declared his intention to be a candidate for that position although he is not yet legally considered a “candidate” since under Section 15 of R.A. 8436 as amended by Section 13 of R.A. 9369, he shall be considered a candidate only at the start of the campaign period. But, the SC continued, when said person proceeds with his/her candidacy at the start of the campaign period, his/her intention has become an actuality so his/her partisan political acts of promoting his/her candidacy after the filing of the COC and prior to the campaign period constitute premature campaigning for which he/she may be disqualified.

In so ruling the SC ratiocinated that “Obviously, it is only at the start of the campaign period, when the person officially becomes a candidate, that the undue and iniquitous advantage 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 head-start in promoting his/her candidacy”.

But the SC set aside this Decision because “it is contrary to the clear intent and letter of the law”. It cited Lanot vs. Comelec (G.R. 164858, November 16, 2006) which held that, based on the deliberations of the legislators who explained the provisions of R.A. 8436 that laid the legal framework of the automated election, a person who files his certificate of candidacy is not a candidate until the start of the campaign period.The SC said that while “there was no express provision in the original R.A 8436 stating that one who files a COC is not yet a candidate until the start of the campaign period”, Congress decided to expressly incorporate the Lanot doctrine into law when it enacted R.A. 9369 inserting it in the second sentence third paragraph of the amended Section 15, R.A 8436. By such amendment, the SC said that “Congress wanted to insure that no person filing a certificate of candidacy under the early deadline required by the automated election system would be disqualified or penalized for any partisan political act done before the start of the campaign period” And so the SC concluded that “the Decision cannot reverse Lanot without repealing the second sentence because to reverse Lanot would mean repealing the second sentence”, which only Congress can do.

According to the SC, what the law says is “any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period. The plain meaning of this provision is that the effective date when the partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period the same partisan political acts are lawful”.

Continuing, the SC said: “The law does not state, as the assailed Decision asserts, that partisan political acts done by a candidate before the campaign period are unlawful but may be prosecuted only upon the start of the campaign period. Neither does the law state that partisan political acts done by a candidate before the campaign period are temporarily lawful but becomes unlawful upon the start of the campaign period. This is clearly not the language of the law”.

Apparently the SC relied more on the language of the law when it set aside the assailed Decision. In so doing it raised more questions than settled the nagging issues on the election campaign.

First, why will partisan political acts become unlawful as to a candidate when the campaign period starts? Under the law (Section 79 [b] Omnibus Election Code), “partisan political activity” refers to an act designed to promote the election or defeat of a particular candidate”. This phrase is used by the law interchangeably with “election campaign”. Hence it should be precisely when the campaign period starts that partisan political activity should be lawful or allowed. But following this latest ruling, it is the other way around: a person who has filed his certificate of candidacy can campaign or engage in partisan political acts before the start of the campaign period but not anymore when the campaign period starts because by that time these acts already become unlawful. This seems to be the meaning of the latest SC ruling and it looks quite absurd.

Secondly, the latest SC ruling gives undue advantage to rich candidates. With bottomless pockets they can promote their candidacies before the campaign period starts by cluttering media with their infomercials and putting up posters, streamers and banners all over public places promoting their candidacies. Disguisedly, it may be justified as upholding the freedom of expression but actually it runs counter to the constitutional guarantee of equal access to opportunities for public service (Section 26, Article II). In effect by such ruling, the winners in our elections will now be decided on the basis of financial capability than on capability to render public service. The ruling is contrary to the reason and spirit of the law.

Finally, the SC focused too much on the meaning of “candidate”. It has delved more on the definition given by the present law. It has overlooked or has glossed over the fact that under Section 80 of the Omnibus Election Code, the definition of a “candidate” is not even material because, said section provides that “it shall be unlawful for any person, whether or not a voter or candidate to engage in an election campaign or partisan political activity except during the campaign period”. The ruling did not expressly say that Section 80 has been repealed by R.A. 8436 as amended. And under this Section, campaigning can be done only during the campaign period regardless of whether the campaigner is already a candidate or not. This seems to be the better law which the SC should have upheld.