F.

Campaign and Election Propaganda

PENERA V. COMELEC | Chico-Nazario, 2009

FACTS
Penera and private respondent Edgar T. Andanar were mayoralty candidates in Sta. Monica.
Andanar filed before the Office of the Regional Election Director (ORED) a Petition for Disqualification against Penera, as well as the candidates for Vice-Mayor and Sangguniang Bayan who belonged to her political
party, for unlawfully engaging in election campaigning and partisan political activity prior to the commencement of the campaign period.
Penera admitted that a motorcade did take place, she explained that it was simply in accordance with the usual practice in nearby cities and provinces, where the filing of certificates of candidacy (COCs) was
preceded by a motorcade, which dispersed soon after the completion of such filing. Penera cited Barroso v. Ampigin her defense, wherein the Court supposedly ruled that a motorcade held by candidates during the
filing of their COCs was not a form of political campaigning.
While the case was pending, elections took place and, as a result thereof, Penera was proclaimed the duly elected Mayor.
COMELEC Second Division disqualified Penera from continuing as a mayoralty candidate in Sta. Monica, for engaging in premature campaigning.Further, reliance on the Ampig case is flawed as the issue in that case is
whether or not the defect of the lack of a certification against non-forum shopping should result to the immediate dismissal of the election cases filed in that case. There is nothing in said case justifying a motorcade
during the filing of certificates of candidacy.
COMELEC en banc ruled that Penera could no longer advance the arguments set forth in her Motion for Reconsideration and Supplemental Motion for Reconsideration, given that she failed to first express and
elucidate on the same in her Answer and Position Paper. Penera did not specifically deny the material averments that the motorcade went as far as Barangay Mabini, announcing their candidacy and requesting the
people to vote for them on Election Day, despite the fact that the same were clearly propounded by Andanar in his Petition for Disqualification and Position Paper. Therefore, these material averments should be
considered admitted. Although the COMELEC en banc denied Peneras MR.
Penera filed the instant Petition before SC.

ISSUE
WON Penera was engaged in an election campaign or partisan political activity outside the campaign period.

HELD/RATIO
YES. Which depends upon: (Culled from Sarmiento dissent) WON S15 RA 8436, as amended by RA 9369 provides a new definition of the termcandidate, as a result of which, premature campaigning may no longer be
committed?
When the campaign period starts and [the person who filed his CoC] 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. SC reverses Lanot v COMELEC (person who files a
certificate of candidacy is not a candidate until the start of the campaign period).
Penera raises questions of fact i.e. motorcade was spontaneous and unplanned, supporters merely joined Penera and the other candidates from her party along the way to, as well as within the premises of, the office
of the COMELEC Municipal Election Officer. And SC is not a trier of fact!
Definition of prohibited act of premature campaigning under Section 80 OEC: Election campaign or partisan political activity outside campaign period. 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: Provided, That political parties may hold political conventions
or meetings to nominate their official candidates within 30 days before the commencement of the campaign period and 45 days for Presidential and Vice-Presidential election.
Consequence if the commission of the prohibited act of premature campaigning is duly proven uner Section 68 OEC: Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by
final decision of a competent court guilty of, or found by the Commission of having xxx (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from
continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under
this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.
The conduct of a motorcade is a form of election campaign or partisan political activity, falling squarely within the ambit of Section 79(b)(2) OEC, on holding political caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate. Amotorcadeisaprocessionorparade of automobiles or other motor
vehicles. The conduct thereof during election periods by the candidates and their supporters is a fact that need not be belabored due to its widespread and pervasive practice. The obvious purpose of the conduct of
motorcades is to introduce the candidates and the positions, to which they seek to be elected, to the voting public; or to make them more visible so as to facilitate the recognition and recollection of their names in
the minds of the voters come election time. Unmistakably, motorcades are undertaken for no other purpose than to promote the election of a particular candidate or candidates.
Penera and her witnesses admitted that the vehicles, consisting of two jeepneys and ten motorcycles, were festooned with multi- colored balloons; the motorcade went around three barangays in Sta. Monica; and
Penera and her partymates waved their hands and threw sweet candies to the crowd. With vehicles, balloons, and even candies on hand, Penera can hardly persuade us that the motorcade was spontaneous and
unplanned.
Anent definition of a candidate (in response to Sarmiento dissent)
Section 15 of RA 8436 (automated election system), as amended by RA 9369, provides a new definition of the term candidate, as aresult of which, premature campaigning may no longer be committed. Section
79(a) OEC - a candidate is any person aspiring for or seeking an elective public office, who has filed a CoC by himself or through an accredited political party, aggroupment, or coalition of parties.
Section 11 of RA 8436. Official ballot. - The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an
initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the
Board of Election inspectors shall affix his/her signature to authenticate the official ballot shall be provided.Both sides of the ballots may be used when necessary.
 For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections:
PROVIDED, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed
resigned only upon the start of the campaign period corresponding to the position for which he/she is running:
PROVIDED, FURTHER, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: PROVIDED, FINALLY, That, for purposes of the May 11, 1998 elections, the
deadline for filing of the certificate of candidacy for the positions of President, Vice President, Senators and candidates under the Party-List System as well as petitions for registration and/or manifestation to participate in
the Party-List System shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998.
Sec 13 of RA 9369 amended Sec 11 of RA 8436: SECTION 15. Official Ballot. - The Commission shall prescribe the format of the electronic display and/or the size and form of the official ballot, which shall contain the
titles of the position to be filled and/or the proposition to be voted upon in an initiative, referendum or plebiscite. Where practicable, electronic displays must be constructed to present the names of all candidates
for the same position in the same page or screen, otherwise, the electronic displays must be constructed to present the entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of
the ballot options on all pages before completing his or her vote and to allow the voter to review and change all ballot choices prior to completing and casting his or her ballot. Under each position to be filled, the
names of candidates shall be arranged alphabetically by surname and uniformly indicated using the same type size. The maiden or married name shall be listed in the official ballot, as preferred by the female
candidate. Under each proposition to be vote upon, the choices should be uniformly indicated using the same font and size.
A fixed space where the chairman of the board of election inspector shall affix her/her signature to authenticate the official ballot shall be provided.
For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his CoC within this period shall
only BE CONSIDERED AS A CANDIDATE at the start of the campaign period for which he filed his CoC: PROVIDED, That, unlawful acts or omissions applicable to a candidate shall EFFECT ONLY UPON THE START OF THE
AFORESAID CAMPAIGN PERIOD: PROVIDED, FINALLY, That any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned
or-controlled corporations, shall be considered ipso factor resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy.
Sarmiento position: Section 80 of the OEC cannot be applied to the present case since, as the Court held in Lanot v.COMELEC the election campaign or partisan activity, which constitute the prohibited premature
campaigning, should be designed to promote the election or defeat of a particular candidate or candidates. Under present election laws, while a person may have filed his/her COC within the prescribed period for
doing so, said person shall not be considered a candidate until the start of the campaign period. Thus, prior to the start of the campaign period, there can be no election campaign or partisan political activity designed
to promote the election or defeat of a particular candidate to public office because there is no candidate to speak of.Simply put: premature campaigning is practically impossible to commit at any time.
There is no absolute and irreconcilable incompatibility between Section 15 of RA 8436, as amended, and Section 80 of the OEC, whichdefines the prohibited act of premature campaigning. It is possible to harmonize
and reconcile these two provisions and, thus, giveeffect to both. Any person in S80 OEC means that premature campaigning may be committed even by a person who is not a candidate. Lanot vCOMELEC
declaration re: outside campaign period BY A CANDIDATE is clearly erroneous. [2] A person, upon the filing of his/her COC, already explicitly declares his/her intention to run as a candidate in the comingelections.
The commission by such a person of any of the acts enumerated under Section 79(b) OEC (partisan political activity/election campaign i.e., holding rallies or parades, making speeches, etc.) can, thus, be logically and
reasonably construed as for the purpose of promoting his/her intended candidacy. 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
bedisqualified. Also, conversely, if said person, for any reason, withdraws his/her COC before the campaign period, then there is no point to view his/her acts prior to said period as acts for the promotion of his/her
election as a candidate. In the latter case, there can be no premature campaigning as there is no candidate, whose disqualification may be sought, to begin with.
[3] Any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period, does NOT mean that the acts constituting premature campaigning can only be committed, for
which the offender may be disqualified, during the campaign period. Contrary to the pronouncement in the dissent, nowhere in the said proviso was it stated that campaigning before the start of the campaign period
is lawful, such that the offender may freely carry out the same with impunity.
A person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the start of the campaign period), can already commit the acts described under S79(b) OEC as election campaign or partisan
political activity. However, only after said person officially becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning under S80 OEC. Only after said person
officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts constituting premature campaigning. Obviously, it is only at the start of the campaign period, when
the person officially becomes a candidate, that the undue and iniquitous advantages 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 headstart in promoting his /her candidacy.
Rationale for prohibition of premature campaigning, citing Chavez v. COMELEC - to level the playing field for candidates of public office, to equalize the situation between the popular or rich candidates, on one hand,
and lesser-known or poorer candidates, on the other, by preventing the former from enjoying undue advantage in exposure and publicity on account of their resources and popularity.

PENERA V. COMELEC (MR) | Carpio, 2009

FACTS
The assailed Decision disqualified Penera from running for the office of Mayor in Sta. Monica, Surigao del Norte and declared that the Vice-Mayor should succeed Penera.

ISSUE
WON Penera engaged in an election campaign or partisan political activity outside the campaign period (conducting a motorcade before the filing of her certificate of candidacy).

HELD/RATIO
NO. LanotvCOMELECwaserroneouslyoverturned.Therulingstands:ApersonwhofilesaCOCisNOTacandidateuntilthestartofthecampaign period.
Essential elements for violation of S80 OEC (1) person engages in an election campaign or partisan political activity (2) act is designed to promote the election or defeat of a particular candidate/srequires existence
of a candidate. (3) act is done outside the campaign period campaign period has not started when the election campaign or partisanpolitical activity is committed.
 S 11 of RA 8436 moved the deadline for the filing of certificates of candidacy to 120 days before election day. Thus, the original deadline was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The
crucial question is: did this change in the deadline for filing the CoC make one who filed his certificate of candidacy before 2 January 2004 immediately liable for violation of S80 if he engaged in election campaign or
partisan political activities prior to the start of the campaign period on 24 March 2004?
Under S11 RA 8436, the only purpose for the early filing of certificates of candidacy is to give ample time for the printing of official ballots.
Lanot was decided based on the deliberation of the lawmakers. Since the intention of this provision is just to afford the Comelec enough time to print the ballots, this provision does not intend to change the
campaign periods as presently, or rather election periods as presently fixed by existing law. Congress wanted to insure that no person filing a CoC under the early deadline required by the AES would be disqualified
or penalized for any partisan political act done before the start of the campaign period.
Thus, in enacting RA 9369, Congress expressly wrote the Lanot doctrine into the 2nd sentence, 3rd paragraph of the amended S15 RA 8436: 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: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the
start of the aforesaid campaign period
Congress elevated the Lanot doctrine into a statute by specifically inserting it as the 2nd sentence 3rd paragraph of the amended S15 RA 8436, which cannot be annulled by this Court except on the sole ground of its
unconstitutionality. The Decision cannot reverse Lanot without repealing this 2nd sentence, because to reverse Lanot would mean repealing this 2nd sentence.
Clarification of the 1st proviso, 3rd Par: unlawful acts or omissions applicable to a candidate shall take effect ONLY upon the start of the aforesaid campaign period it inserted onlythus Congress not only
reiterated but also strengthened its mandatory directive that election offenses can be committed by a candidate only upon the start of the campaign period. Before the start of the campaign period, such election
offenses cannot be so committed.
When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these provisions of law do not consider Penera a candidate for purposes other than the printing of ballots, until the start of the
campaign period. There is absolutely no room for any other interpretation.
Quoting from Justice Carpios dissent in the first decision: The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera filed her CoC on 29 March 2007. Penera was thus a
candidate on 29 March 2009 only for purposes of printing the ballots. On 29 March 2007, the law still did not consider Penera a candidate for purposes other than the printing of ballots. Acts committed by Penera
prior to 30 March 2007, the date when she became a candidate, even if constituting election campaigning or partisan political activities, are not punishable under S80 OEC. Such acts are within the realm of a
citizens protected freedom of expression. Acts committed by Penera within the campaign period are not covered by S80 as it punishes only acts outside the campaign period.
It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is specially true to expression or speech, which Congress cannot outlaw except on very narrow grounds involving clear,
present and imminent danger to the State. The mere fact that the law does not declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need for Congress to declare in S15 of RA 8436, as
amended by RA 9369, that political partisan activities before the start of the campaign period are lawful. It is sufficient for Congress to state that any unlawful act or omission applicable to a candidate shall take
effect only upon the start of the campaign period. The only inescapable and logical result is that the same acts, if done before the start of the campaign period, are lawful.
A candidate is liable for an election offense only for acts done DURING the campaign period, not before.
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.
The law does NOT state, as the assailed Decision asserts, that partisan political acts done by a candidate before the campaign period: [1] are unlawful, BUT they may be prosecuted only upon the start of the campaign
period. [2] are temporarily lawful, BUT becomes unlawful upon the start of the campaign period. This is clearly not the language of the law. Besides, such a law as envisioned in the Decision, which defines a criminal
act and curtails freedom of expression and speech, would be void for vagueness.

CHAVEZ V. COMELEC | Azcuna, 2004

FACTS
Francisco Chavez, on various dates, entered into formal agreements with certain establishments to endorse their products. Pursuant to these agreements, three billboards were set up along the Balintawak
Interchange of the North Expressway. One billboard showed petitioner promoting the plastic products of Konka International Plastics Manufacturing Corporation, and the other two showed petitioner endorsing the
clothes of 96 North. One more billboard was set up along Roxas Boulevard showing petitioner promoting the game and amusement parlors of G-Box.
Petitioner filed his certificate of candidacy for the position of Senator.
COMELEC issued Resolution No. 6520, which contained Section 32: All propaganda materials such as posters, streamers, stickers or paintings on walls and other materials showing the picture, image, or name of a
person, and all advertisements on print, in radio or on television showing the image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a candidate for public office
shall be immediately removed by said candidate and radio station, print media or television station within 3 days after the effectivity of these implementing rules; otherwise, he and said radio station, print media or
television station shall be presumed to have conducted premature campaigning in violation of Section 80 of the Omnibus Election Code.
Petitioner was directed to comply with the said provision by the COMELECs Law Department.He asked that he be exempted from the application of Section 32, considering that the billboards adverted to are mere
product endorsements and cannot be construed as paraphernalia for premature campaigning under the rules.
COMELEC ordered him to remove or cause the removal of the billboards, or to cover them from public view pending the approval of his request.

ISSUES
(1) WON Section 32 of COMELEC Resolution No. 6520 is an invalid exercise of police power.
(2) WON Section 32 of COMELEC Resolution No. 6520 violates the non-impairment clause.
(3) WON Section 32 of COMELEC Resolution No. 6520 is an ex-post facto law.
(4) WON Section 32 of COMELEC Resolution No. 6520 is a violation of the Fair Elections Act.
(5) WON Section 32 of COMELEC Resolution No. 6520 is overbroad.
HELD/RATIO
(1) NO. Police power, as an inherent attribute of sovereignty, is the power to prescribe regulations to promote the health, morals, peace, education, good order, or safety, and the general welfare of the people.[1 To
determine the validity of a police measure, two questions must be asked: (1) Does the interest of the public in general, as distinguished from those of a particular class, require the exercise of police power? and (2) Are the
means employed reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals?
A close examination of the assailed provision reveals that its primary objectives are to prohibit premature campaigning and to level the playing field for candidates of public office, to equalize the situation between
popular or rich candidates, on one hand, and lesser-known or poorer candidates, on the other, by preventing the former from enjoying undue advantage in exposure and publicity on account of their resources and
popularity.
Under the Omnibus Election Code, election campaign or partisan political activity is defined as an act designed to promote the election or defeat of a particular candidate or candidates to a public office. Activities
included under this definition are:(1)Forming organizations, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate;
(2)Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a
candidate;(3)Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;(4)Publishing or distributing campaign literature or materials
designed to support or oppose the election of any candidate; or(5)Directly or indirectly soliciting votes, pledges or support for or against a candidate.
It is true that when petitioner entered into the contracts or agreements to endorse certain products, he acted as a private individual and had all the right to lend his name and image to these products. However,
when he filed his certificate of candidacy for Senator, the billboards featuring his name and image assumed partisan political character because the same indirectly promoted his candidacy.
Under Sec. 80 of the OEC: Election campaign or partisan political activity outside campaign period. 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.x x x. Further, under Article IX (C) (4) of the Constitution the COMELEC is expressly authorized to supervise or regulate
the enjoyment or utilization of all media communication or information to ensure equal opportunity, time, and space.All these are aimed at the holding of free, orderly, honest, peaceful, and credible elections.

(2) NO. The non-impairment clause of the Constitution must yield to the loftier purposes targeted by the Government. Equal opportunity to proffer oneself for public office, without regard to the level of financial resources
one may have at his disposal, is indeed of vital interest to the public.The State has the duty to enact and implement rules to safeguard this interest.Time and again, this Court has said that contracts affecting public interest
contain an implied reservation of the police power as a postulate of the existing legal order.This power can be activated at anytime to change the provisions of the contract, or even abrogate it entirely, for the promotion
or protection of the general welfare.Such an act will not militate against the impairment clause, which is subject to and limited by the paramount police power.
(3) NO. Section 32, although not penal in nature, defines an offense and prescribes a penalty for said offense.Laws of this nature must operate prospectively, except when they are favorable to the accused.
It should be noted, however, that the offense defined in the assailed provision is not the putting up of propaganda materials such as posters, streamers, stickers or paintings on walls and other materials showing the
picture, image or name of a person, and all advertisements on print, in radio or on television showing the image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a
candidate for public office. Nor does it prohibit or consider an offense the entering of contracts for such propaganda materials by an individual who subsequently becomes a candidate for public office.
One definitely does not commit an offense by entering into a contract with private parties to use his name and image to endorse certain products prior to his becoming a candidate for public office.The offense, as
expressly prescribed in the assailed provision, is the non-removal of the described propaganda materials three (3) days after the effectivity of COMELEC Resolution No. 6520.If the candidate for public office fails to
remove such propaganda materials after the given period, he shall be liable under Section 80 of the Omnibus Election Code for premature campaigning.Indeed, nowhere is it indicated in the assailed provision that it
shall operate retroactively.

(4) NO. The Solicitor General rightly points out that the assailed provision does not prohibit billboards as lawful election propaganda.It only regulates their use to prevent premature campaigning and to equalize, as much
as practicable, the situation of all candidates by preventing popular and rich candidates from gaining undue advantage in exposure and publicity on account of their resources and popularity. Moreover, by regulating the
use of such election propaganda materials, the COMELEC is merely doing its duty under the law.
Under Sections 3 and 13 of the Fair Elections Act, all election propaganda are subject to the supervision and regulation by the COMELEC:SECTION 3.Lawful Election Propaganda. --Election propaganda, whether on
television, cable television radio, newspapers or any other medium is hereby allowed for all registered political parties, national, regional, sectoral parties or organizations participating under the party list elections
and for all bona fide candidates seeking national and local elective positions subject to the limitation on authorized expenses of candidates and political parties observance of truth in advertising and to the
supervision and regulation by the Commission on Elections (COMELEC).

(5) NO. A statute or regulation is considered void for overbreadth when it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to State regulations may
not be achieved by means that sweep unnecessarily broadly and thereby invade the area of protected freedoms.
The provision in question is limited in its operation both as to time and scope.It only disallows the continued display of a persons propaganda materials and advertisements after he has filed a certificate of candidacy
and before the start of the campaign period.Said materials and advertisements must also show his name and image.
There is no blanket prohibition of the use of propaganda materials and advertisements.During the campaign period, these may be used subject only to reasonable limitations necessary and incidental to achieving the
purpose of preventing premature campaigning and promoting equality of opportunities among all candidates.