Are Philippine political ads designed with 5-year-olds in mind?

Want proof that lawmakers are indeed breaking the law (or at least its spirit)? Look no further. Just watch TV and I bet you that, in an hour, you’ll catch one or two political advertisements. It does not take a rocket scientist to recognize these for what they are — premature campaigning. You already have TV commercials with poor concepts and scripts that are shown together with the not-so-good TV shows and is now made worse by the proliferation of these political advertisements with jingles that though you don’t want them to, will stick in your head. Talk about unwanted “Last song syndrome.”

However, like the Anti-Dynasty law, premature campaigning still lacks a legal definition. Hence, candidates who have the means can play within the loopholes of our laws, again. There you go! So much for the phrase “leveling the playing field.”

Question is, so far: What do we have against premature campaigning?

We have Section 80 of the Omnibus Election Code (BP 881) which states:

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.

And the punishment for violating Section 80 is disqualification under Section 68 of the same code.

The Supreme Court, in a 2006 case, Lanot vs COMELEC, supplied the following ruling:

“Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticism against probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article.

Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person engages in an election campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular candidate or candidates; (3) the act is done outside the campaign period.

The second element requires the existence of a ‘candidate.’ Under Section 79(a), a candidate is one who ‘has filed a certificate of candidacy’ to an elective public office. Unless one has filed his certificate of candidacy, he is not a ‘candidate.’ The third element requires that the campaign period has not started when the election campaign or partisan political activity is committed.

Assuming that all candidates to a public office file their certificates of candidacy on the last day, which under Section 75 of the Omnibus Election Code is the day before the start of the campaign period, then no one can be prosecuted for violation of Section 80 for acts done prior to such last day. Before such last day, there is no ‘particular candidate or candidates’ to campaign for or against. On the day immediately after the last day of filing, the campaign period starts and Section 80 ceases to apply since Section 80 covers only acts done ‘outside’ the campaign period.

Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to acts done on such last day, which is before the start of the campaign period and after at least one candidate has filed his certificate of candidacy. This is perhaps the reason why those running for elective public office usually file their certificates of candidacy on the last day or close to the last day.”

Oo nga naman. Although it is outside the campaign period, these individuals in the political advertisements have not yet filed their certificates of candidacy, therefore, there is no candidate to prosecute. So is there a way for us to catch these ambitious morons legally?

Unfortunately in a subsequent 2009 case of Penera v COMELEC, the Supreme Court, in its Resolution stated:

As previously established, 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 Section 79(b) of the Omnibus Election Code 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 Section 80 of the Omnibus Election Code. 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.

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 Section 15 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.

In layman’s language, this means that a candidate is liable for an election offense only for acts done during the campaign period, not before. The law is clear as daylight — any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period.

Then adds

“Congress has laid down the law – a candidate is liable only for election offenses only upon the start of the campaign period. This Court has no power to ignore the clear and express mandate of the law that ‘any person who files his certificate of candidacy within the filing period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy.”

Pity us. I guess we have no choice but to suffer these annoying political ads.

“It’s the system, stupid!” – Bill Clinton. I quoted this because I can imagine him telling me that now.

However, we are encouraged to act on this. In the May 30, 2015 editorial of the Manila Bulletin (mb.com.ph) it said:

“Despite this legal bar, the Commission on Elections, led by its new Chairman Andres Bautista, shares the view that there is merit in the effort to level the playing field when it comes to candidacies. The COMELEC itself, he said, may have no authority to penalize those now releasing television commercials. But all well-meaning individuals and civil society organizations, he said, should come out and question these practices. And they should ask the voters if this is the kind of candidates they would vote for.”

I recently searched for Senator Miriam Santiago’s “Anti-Epal” bill and it led me to her September 8, 2012 speech at the EARIST State College instead. In that speech, she presented a solution by stating that she will file a bill that requires the filing of a Certificate of Intention to Run for Public Office (CIRPO). The said certificate will be made mandatory and will be a prerequisite for filing Certificate of Candidacy. She explained that once a person files the CIRPO, that person shall fall under all the legal prohibitions against premature campaigns.

However, besides the judiciary, the COMELEC and Senator Santiago, the challenge is more on to us, the voters. Especially for those individuals who I said in one of my comments “the ideal citizens.” Are you among those citizens? You decide. Ask your fellow voters the same question Senator Santiago asked in the same speech:

“What kind of senator will a person become, if he uses public funds to advertise himself, by purporting to advertise his agency? What kind of Senate will we have if is dominated only by the rich who can afford to spend hundreds of millions on traditional media advertising?”

In those questions, she is targeting her fellow senators but you may rephrase that to include all government offices.

Then she said finally:

“Tell the senatoriables that their premature campaigns impact negatively public perceptions of their intellectual honesty and their commitment to the democratic principle of equality of opportunity under the Equal Protection Clause of the Constitution. In the social media, you might also add that if the election process is distorted or corrupted, part of the reason is the corporate greed of traditional media that will certainly earn a cash bonanza from this wretched loophole in the law.”

So will we still let this ambitious morons get away with premature campaigning and continue to treat us like children below 5 who could not know what is and what is not campaigning, and easily believe their noble intentions? Will we still let ourselves be led by this politicians or should we, at the minimum, demand from them, instead of advertisements to promote themselves, an apology for making a fool out of us?

I guess it’s time to stop whining and start getting even.