Uneven and unclear

The playing field in the coming 2010 elections is getting more and more uneven. And this is because of two recent Supreme Court (SC) decisions: the Penera case decided last November 25, 2009, and the case of two DENR officials, Quinto and Tolentino, decided last Tuesday, December 1, 2009.

In the Penera case, the SC has ruled that even before the start of the campaign period, aspirants for any public elective office can already engage in partisan political activities promoting their candidacies. This ruling in effect gives undue advantage to aspirants with huge campaign chest over the less moneyed ones.

The campaign period is fixed as some sort of the game time during which the election game should be played, when it should start and end. But with this ruling, a political player can now start playing the game even before game time. Since this is mainly a game of “name recall” it entails spending lots of money. So only the players with more money to spend can start playing it earlier than game time; and in our kind of politics, the earlier the better. Hence aspirants with more money to spend have better chances of winning because they can afford airing and publishing more infomercials, or putting up streamers, banners, posters and other campaign propaganda materials promoting their candidacies earlier than the start of the campaign period.

In the Quinto case the SC has ruled that any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government owned or controlled corporations are no longer considered ipso facto resigned from his office upon the filing of his certificate of candidacy. This ruling is expected. It is one of the “aftershocks” of the Penera case where the SC declared that under the existing law (R.A. 8346 as amended by R.A. 9364), a person is considered a candidate only upon the start of the campaign period, not upon the filing of the COC. Since he is not yet a candidate upon the filing of the COC, it is but logical that he should not be deemed ipso facto resigned upon such filing, the SC said. The SC is just being consistent.

But the aftershock of the Quinto case does not only have a ripple effect. It has created bigger chasm in the playing field. To be sure, the SC has removed the discriminatory aspect between elective and appointive government officials when it ruled that “In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their COCs, but not considering as resigned the elective ones, the law unduly discriminates against the first class”. According to the SC, the law has made a “substantial distinction between those who hold appointive posts and those occupying elective posts” but it “does not justify such differential treatment. So it restricts the fundamental right to equal protection on “such a sweeping scale”, the SC concluded. In effect the SC has annulled Section 68 of the Omnibus Election Code for being unconstitutional.

Implied in this ruling is that, since the elective and appointive government officials are now on equal footing, the appointive ones can also continue holding on to their posts even during the campaign period up to the end of their fixed term or until they choose to voluntarily resign, like their counterpart elective government officials. In other words Quinto and Tolentino got more than what they are asking for because they only asked that they be considered ipso facto resigned upon the start of the campaign period instead of upon filing their COCs. Hence this ruling has given candidates in power whether elective or appointive, a very great advantage over those who are not in power.

Aside from creating an unbalanced playing field, Penera and Quinto rulings have raised questions that need clarifications.

In the Penera case, the SC explained the applicable provisions of RA 8436 as amended by RA 9369 regarding premature campaigning in this wise: “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 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”. Partisan political act on the other hand is defined by law (Section 79 (b) OEC) as “an act designed to promote the election or defeat of a particular candidate”. Viewed from any angle, the question that comes up is: Does this mean that when the campaign period starts it becomes unlawful for a candidate to promote his election? The parties to the case should ask for a clarification of this ruling.

In the Quinto case, the petition merely asked that appointive government officials who are aspiring for an elective public office should be considered resigned upon the start of the campaign period, not upon the filing of the COC. But the implication of the decision is that these appointive officials are not considered ipso facto resigned, or are not required to resign even upon the start of, during, and at the end of the campaign period, just like the elective government officials who are also running for election to a public office. The parties should also clarify this point.

At the advent of the very first automated elections in 2010, these rulings may further create uncertainties and fuel speculations that there may be failure of elections or its results may not be conclusive and definite, a scenario painted by the former National Security Adviser and now Defense Secretary in this present administration.

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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