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Opinion

Undefined crimes

SKETCHES - Ana Marie Pamintuan - The Philippine Star

There’s no crime if there’s no law defining it. This is Commission on Elections Chairman George Garcia’s explanation for the poll body’s weakness in regulating certain campaign activities. In its latest effort, the Comelec will require candidates to include fees paid to influencers and celebrity endorsers in their campaign expenditure statements.

I told him to brace for lawsuits from such folks invoking freedom of expression, and the Supreme Court probably going along with their argument.

The constitutionally guaranteed freedom of expression was cited by the so-called gods of Padre Faura in ruling that the Comelec cannot take down, even during the official campaign period, streamers and other campaign materials regardless of size that are displayed on private property.

This is the reason for the nauseating space pollution that we are now witnessing, with rival candidates plastering every available lamppost and wall with their materials. The SC ruling, based on its interpretation of existing law, effectively rendered useless the Comelec’s rule on common poster areas. A candidate can have a streamer covering the entire exterior wall of a multistory building and claim that the owner is a supporter, and the Comelec cannot take it down.

Today the sky’s the limit for the number and size of campaign materials that wealthy candidates can display on their mixed-use real estate properties. Woe to their challengers with modest means who may be far more qualified for the job, but whose candidacy is hardly known to voters.

Candidates can also buy ad space on private property, circumventing the Comelec rule on common poster areas. Verifying if money was paid for the display of the material – which must be declared in a candidate’s statement of contributions and expenditures (SOCE) – can be difficult for the Comelec in this age of e-wallets.

Tracking election spending particularly online is particularly tricky since digital technology is not covered by election-related laws.

Hope springs eternal for Garcia, however, in carrying out the Comelec’s job. He points out that even streamers supposedly provided to a candidate for free and posted on private property by an alleged supporter will be classified as a campaign donation that must be declared in the SOCE.

In catching vote buyers, Garcia says presumption of lawbreaking has worked for the Comelec in several cases. If a person is spotted carrying a bag packed with an amount of cash not commensurate with his livelihood or related to his job prior to the elections, for example, the person can be presumed to be buying votes for a candidate. The person can be questioned and the candidate penalized. Garcia says such cases have happened.

Or if there’s a long line of people for GCash payments near polling centers, vote buying can also be presumed, Garcia explains.

He’s hoping that the public will assist the Comelec in going after paid influencers and endorsers, through reporting mechanisms provided in the Comelec website. Garcia vows prompt action on such reports.

Candidates can also monitor their rivals for possible violations of election rules, which can lead to disqualification and even a criminal indictment.

*      *      *

Garcia had a lucrative career as an election lawyer before he was recruited into government. Among his clients were President Marcos, Isko Moreno (in the 2022 campaign), Sen. Grace Poe (in the 2016 presidential race) and Joseph Estrada.

Rodrigo Duterte recruited Garcia to be a Comelec commissioner even if Garcia was Poe’s lawyer who successfully argued that she could run for president  despite her being a foundling with an unknown birthplace.

Duterte had said that he decided to run for president because he didn’t want an American citizen like Poe to lead the country. Poe at the time had replaced rival Jejomar Binay as the frontrunner in the surveys for president.

Why did Garcia agree to join the government? Comelec officials are among the best paid in government and have hefty retirement and pension benefits. But I’m guessing the compensation still won’t top the earnings of one of the country’s few election lawyers.

Garcia told “The Grill” at the Cignal TV studios last Saturday that joining government was his way out of an increasingly sticky situation wherein his former clients were running against each other in elective posts.

“The Grill” is a two-hour show set up for the midterm elections during which anchors and editors from TV 5, One News, The Philippine STAR, Business World, OnePH and True FM  grill a guest about election-related matters. Garcia was our guest in the maiden edition of The Grill.

*      *      *

For several years now, the Comelec has been drawing up a wish list of electoral reforms that need legislation, to allow the poll body to keep pace with rapid changes particularly in digital technology and tighten regulation of campaign activities and spending.

But several Congresses junked or ignored the proposed electoral reforms. Garcia vows to submit to the next Congress an updated proposal to include new technology and overhaul “antiquated” election laws, including the unrealistic caps on campaign spending.

Any proposal that tries to promote transparency in campaign finance, however, seems as doomed as efforts to pass an enabling law regulating political dynasties.

Garcia, who says he supports a ban on dynasties, points out that dynasty-building is already banned in the Sangguniang Kabataan and the Bangsamoro Autonomous Region in Muslim Mindanao, where clan wars are among the biggest causes of armed violence.

But in the case of dynasty-building in Congress and local government units, which has reached shameless proportions, it may have to take an order from the Supreme Court to compel lawmakers to fulfill their constitutional duty of passing the enabling law. There are pending petitions for this, waiting for SC action.

There’s no crime if the criminals are the ones tasked to define it. Perhaps it will take judicial intervention to provide that definition.

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