Thursday, September 17, 2009

Legal Implications of the SC Decision in Peñera vs. Comelec

Facts of the case:

Penera filed her Certificate of Candidacy for local elective position on the afternoon of 29 March 2007, and a day before the start of the campaign period for the May 14, 2007 elections.

Accompanied by a bevy of supporters, [Penera and her partymates] came to the municipal COMELEC office on board a convoy of two (2) trucks and an undetermined number of motorcycles, laden with balloons ad [sic] posters/banners containing names and pictures and the municipal positions for which they were seeking election. Installed with [sic] one of the trucks was a public speaker sound subsystem which broadcast [sic] the intent the [sic] run in the coming elections. The truck had the posters of Penera attached to it proclaiming his [sic] candidacy for mayor.

Issues: Whether or not [Penera] has engaged in an election campaign or partisan political activity outside the campaign period.


Penera violated the Omnibus Election Code which prohibits premature campaigning. The prohibited act of premature campaigning is defined under Section 80 of the Omnibus Election Code, to wit:

SECTION 80. 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 thirty days before the commencement of the campaign period and forty-five days for Presidential and Vice-Presidential election.

Penalty for premature campaigning is disqualification. Sec. 68 of the said Code provides:

SECTION. 68. 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.

Important points that need to be noted:

1. Premature campaigning as defined in the Omnibus Election Code could be committed not only by a candidate but by any person.

2. What is premature campaigning?

Answer: Premature campaigning is understood to be the conduct of election campaign or partisan political activity outside of the campaign period.

3. When is the campaign period?

Answer: For a complete listing of the calendar of activities set by Comelec for the 2010 Automated Elections visit:

4. What constitutes election campaign or partisan political activity?

Answer: Section 79(b) of the Omnibus Election Code defines election campaign or partisan political activity in the following manner:

SECTION 79. Definitions. - As used in this Code:

x x x x

(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include:

(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.

5. When is a person officially considered a candidate in order to commit premature campaigning and be penalized by disqualification for its commission?

Answer: A person, upon the filing of his/her COC, already explicitly declares his/her intention to run as a candidate in the coming elections. Thus, considered as a candidate for purposes of committing premature campaigning.

6. Periods to reckon with:

Under RA 8436, as amended by RA 9369:

Sec. 15. “x x x Any person who files his certificate of candidacy within this period (deadline set by Comelec for the filing of Certificates of Candidacy) 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 effect only upon the start of the aforesaid campaign period x x x”

7. What are the implications of this decision in light of the many infomercials being plugged by aspirants in the 2010 elections?

Answer: It is the filing by the person of his/her COC through which he/she explicitly declares his/her intention to run as a candidate in the coming elections. It is such declaration which would color the subsequent acts of said person to be election campaigning or partisan political activities as described under Section 79(b) of the Omnibus Election Code. It bears to point out that, at this point, no politician has yet submitted his/her COC. Also, the plain solution to this rather misplaced apprehension is for the politicians themselves to adhere to the letter and intent of the law and keep within the bounds of fair play in the pursuit of their candidacies. This would mean that after filing their COCs, the prudent and proper course for them to take is to wait for the designated start of the campaign period before they commence their election campaign or partisan political activities. Indeed, such is the only way for them to avoid disqualification on the ground of premature campaigning.


  1. Great brief, Dex. This seems like an important case and I wonder if it will have ramifications elsewhere...

  2. Nice briefing! It really looks an important case as Lydia said.