Level playing field

With the start of the campaign period of candidates for local government positions, the 2013 election campaign is now in full swing. But foremost in the minds of everybody is still the reason or purpose for fixing a campaign period.

Actually, under Section 80 of the Omnibus Election Code (OEC) which was passed on November 28, 1985 “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 under pain of being disqualified.” “Election campaign or partisan political activity,” on the other hand, has been defined as referring “to an act designed to promote the election or defeat of a particular candidate to a public office” (Section 79 (b). It also refers to “acts of aspirants seeking to promote their intended candidacies. The OEC also defines an “aspirant” or a “candidate” as “any person aspiring for or seeking an elective public office who has filed his certificate of candidacy.”

So under the OEC, any person cannot promote the election or defeat of a particular candidate before the start of the campaign period. And if that person has already filed his certificate of candidacy for an elective public office, he/she may be disqualified if he/she engages in such activity before the start of the campaign period. In other words, “premature campaigning” is prohibited

But when the Automated Election System (AES) Law (RA 8436) was enacted on December 22, 1997 as amended by RA 9369 passed on February 10, 2007, the rules of the election contest seem to have changed. This is because under Section 15 of the AES Law, even if a person has already filed his/her certificate of candidacy, he/she is not yet considered a “candidate” until the start of the campaign period. Under this new law therefore, persons who have already filed their certificates of candidacies can still promote their intended candidacies before the start of the campaign period because they are not yet considered as “candidates” or “aspirants.” And their liability upon the start of the campaign period when they are already candidates refers only to acts or omissions in violation of the election law on campaigning, such the size of posters, posting outside common poster areas, exceeding the time limits on TV political campaign ads etc. In other words, there seems to be no premature campaigning anymore.

The conflict between the two laws seem to be more apparent than real. Section 80 of the OES prohibiting premature campaigning can still be applied. Actually under said section, it is not material if a person is considered as a candidate upon the filing of the certificate of candidacy or upon the start of the campaign period. Under said law it is unlawful for “any person whether or not a voter or a candidate, to promote the election or defeat of any aspirant for a public office before the start of the campaign period. So this provision could not have been superseded by Section 15 of the AES Law as amended defining when a person is considered a candidate. Premature campaigning may still be committed by a person who is not a candidate.

As held by the Supreme Court in the case of Penera vs Comelec (G.R. 181613), “the laudable and exemplary intention and the need for prohibiting premature campaigning — to level the playing field for candidates for public office, to equalize the situation between the popular or rich candidates, on the one hand, and the lesser known or poorer candidates, on the other hand, by allowing them to campaign only within the same limited period — remains.”

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