By: Atty. Ismael L. Sarangaya, Jr., Senior Associate
At present, premature campaigning is not considered an election offense in the Philippines. Prior to the 2018 Barangay and SK Elections, the Commission on Elections (COMELEC) conceded that while premature campaigning is a “pernicious act”, there is no law that punishes it. However, some election watchdogs maintain that aspirants for elective office should not take advantage of the absence of a law penalizing premature campaigning.
In the landmark case of Rosalinda A. Penera v. Commission on Elections and Edgar T. Andanar, the Supreme Court declared that “a candidate is only liable for election offenses only upon the start of the election period.” In this case, Penera sought the reversal of the previous decision of the Supreme Court affirming the ruling of the COMELEC en banc disqualifying her from running for the office of Mayor of Sta. Monica, Surigao del Norte due to premature campaigning.
The Supreme Court, speaking through Associate Justice Antonio Carpio, cited the second sentence, third paragraph, Section 15 of Republic Act No. (RA) 8436, as amended by Section 13 of RA 9369, which provides that “(a)ny person who files his certificate of candidacy within (the period for filing) shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy.”
Thus, upon filing of her certificate of candidacy, Penera was deemed a candidate only for purposes of printing of ballots. Other than that, the law did not consider Penera a candidate before the start of the campaign period. Such being the case, the political activities of Penera before the start of the campaign period (i.e., joining a motorcade) were within the realm of her freedom of expression.
Nonetheless, the Supreme Court clarified that Congress is the proper forum for the re-examination of the wisdom of RA 8436, as amended.
Efforts to reverse the “Penera effect”
Taking the cue from the majority decision in Penera, some lawmakers proposed measures to curb premature campaigning. During the Fifteenth Congress, the late former Senator Miriam Defensor-Santiago introduced Senate Bill No. 3305, otherwise known as the “CIRPO Act of 2012”.
Under Section 2 of Senate Bill No. 3305, any person interested in running for public office must file a “Certificate of Intention to Run for Public Office” or CIRPO not later than one hundred eighty (180) days immediately preceding the deadline for the filing of a certificate of candidacy. If a person fails to file a CIRPO within the deadline stated in the bill, he/she would be ineligible to file a certificate of candidacy.
Senate Bill No. 3305 also sought to prohibit a person who files a CIRPO from engaging in the following activities: (a) endorsing any product or service, whether for a fee or not; (b) appear in any infomercial; (c) accept any employment in any media outfit as a news anchor, writer, or regular talent; or (d) buy any print, radio, or television space to advertise himself/herself or any product or service.
Despite the efforts of former Sen. Santiago, Senate Bill No. 3305 was not enacted into law.
Unperturbed, former Sen. Santiago introduced Senate Bill No. 2445 during the Sixteenth Congress entitled “Anti-Premature Campaigning Act”. The bill specified and enumerated the acts constituting “indirect solicitation of votes, pledges, pledges, or support” in order to educate and inform the political aspirants of the acts that may constitute election campaigning or partisan political activities.
Senate Bill No. 2445 also included “prospective candidates” within the scope of the prohibition on premature campaigning. Under the bill, a “prospective candidate” is defined as “any person aspiring for or seeking an elective public office, whether or not he/she has explicitly declared his/her intention to run as a candidate in the immediately preceding elections, who eventually files a certificate of candidacy.”
As shown in the legislative history of Senate Bill No. 2445, the same was referred to the Senate Committee on Electoral Reforms and Peoples’ Participation which conducted joint committee hearings on 10 March 2015 and 19 May 2015. On 19 July 2016, the bill was transmitted to the Legislative Records and Archives Service for safekeeping and preservation pursuant to paragraph g, Section 7, Rule V of the Rules of the Senate.
Not to be outdone, members of the House of Representatives also introduced bills of similar nature. Rep. Joaquin Chipeco Jr. introduced House Bill No. 05332 during the Sixteenth Congress which, according to the website of the House of Representatives, was referred to the Committee on Rules.
Presently, House Bill No. 909, introduced by Rep. Fredenil H. Castro, is pending with the House Committee on Suffrage and Electoral Reforms. The bill seeks to re-establish the prohibition against premature campaigning and hold liable for an election offense those who would engage in partisan political activities before the election period.
Section 1 of the House Bill No. 909 seeks to amend Section 15 of RA 8436, as amended, by defining a candidate as any person who is aspiring for or is seeking an elective public office and has already filed a certificate of candidacy personally or through a duly authorized representative or an accredited political party, aggroupment or coalition of parties. In other words, a person would be considered a candidate as soon as he/she files his/her certificate of candidacy for purposes of determining when premature campaigning, partisan political activities and other unlawful acts would take effect.
The constitutional hurdles
Congress, in its efforts to “criminalize” premature campaigning, is duty-bound to balance two contending interests. On one hand is the policy to promote free, honest, orderly and peaceful elections through fair election practices. On the other hand, the State should also respect the freedom of speech, expression and of the press of its citizens as enshrined under Article III, Section 4 of the 1987 Constitution.
There is no question that a law which seeks to penalize premature campaigning is a restraint not only on political conduct but also on political speech. As defined in Diocese of Bacolod v. COMELEC, a political speech refers to speech “both intended and received as a contribution to public deliberation about some issue,” “foster[ing] informed and civic-minded deliberation.” As compared with other forms of expression, political speech enjoys preferred protection within our constitutional order.
Given the lofty position that the freedom of speech occupies in the hierarchy of rights, the proposed remedial legislation must pass the strict scrutiny test. As defined in White Light Corporation v. City of Manila, strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms. Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection. The United States Supreme Court has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage, judicial access and interstate travel.
The applicability of the strict scrutiny test is highlighted by the fact that House Bill No. 909 is a content-based regulation. A content-based restraint or censorship is a restriction which is based on the subject matter of the utterance or speech. It is distinguished from a content-neutral regulation which is merely concerned with the incidents of the speech, or one that controls the time, place or manner, and under well-defined standards. As emphasized in Chavez v. Gonzales, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny in light of its inherent and invasive impact.
An examination of House Bill No. 909 reveals that there is a need to determine whether the substance of a speech or utterance falls under the definition of “premature electoral campaigning” or “partisan political activities”. Under Section 79 (b) of the Omnibus Election Code, 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. The term includes the following acts: (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.
Speaking of content, Congress must also be careful in laying down the parameters of the proposed legislation. Otherwise, the proposed legislation may be struck down by the Supreme Court for being vague or overbroad.
The void-for-vagueness doctrine holds that a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application. On the other hand, under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms. It is settled that both doctrines only apply to free speech cases and cannot be invoked when questioning penal statutes.
There are at least two instances where the Supreme Court had the occasion to resolve facial challenges on the validity of regulations which sought to prohibit premature campaigning. In the earlier case of Gonzales v. COMELEC, the Supreme Court declared as unconstitutional a law which prohibited any person, whether a voter or not, from engaging in an election campaign or partisan political activity except during the prescribed election period. The Supreme Court expounded that the law was constitutionally infirm as its coverage was too wide and all-encompassing and operates to inhibit the exercise of individual freedoms protected under the Constitution.
In the more recent case of Chavez v. COMELEC, the Supreme Court arrived at a different conclusion. Here, the Supreme Court upheld the validity of COMELEC Resolution No. 6520 and ruled that if a person entered into contracts or agreements to endorse certain products, appear in billboards, and subsequently filed his certificate of candidacy for elective public office, he may be held liable for “indirectly promoting his candidacy”.
In the same case, the Supreme Court rejected therein petitioner’s contention that the assailed provision of COMELEC Resolution No. 6520 is invalid because of overbreadth. The Supreme Court said that the assailed provision was limited in its operation both as to time and scope. Specifically, it only disallowed the continued display of a person’s propaganda materials and advertisements after he has filed a certificate of candidacy and before the start of the campaign period.
Note, however, that the Chavez ruling was abandoned by the Supreme Court five (5) years later when it issued the controversial decision in the Penera case.
Another hurdle is the clear and present danger test. Former Chief Justice Reynato Puno, in Chavez v. Gonzales, stressed that the clear and present danger rule rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, “extremely serious and the degree of imminence extremely high.”
Hence, the lawmakers must first come up with a consensus as to whether premature campaigning is a “substantive evil”. This could be a very interesting debate among constitutionalists, election law practitioners, law students and the public.
Should Congress finally opt to pass a remedial legislation as suggested in Penera, we can only hope that its provisions are based on reason and common human experience. The proposed law would be nothing but empty rhetoric unless it levels the playing field in our electoral system.
 http://www.gmanetwork.com/news/news/nation/651521/comelec-on-premature-campaigning-kadiri-siya-pero-hindi-illegal/story/ (last accessed: 07 June 2018).
 http://newsinfo.inquirer.net/985111/comelec-premature-campaigning-not-poll-offense (last accessed: 07 June 2018).
 G.R. No. 181613, 25 November 2009.
 Entitled “AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES.”
 Entitled “AN ACT AMENDING REPUBLIC ACT NO. 8436, ENTITLED “AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, TO ENCOURAGE TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF ELECTIONS, AMENDING FOR THE PURPOSE BATAS PAMBANSA BLG. 881, AS AMENDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTION LAWS, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES.”
 Senate Bill No. 3305, Section 3.
 Explanatory Note of Senate Bill No. 2445, p. 3.
 Senate Bill No. 2445, Section 2.
 https://www.senate.gov.ph/lis/bill_res.aspx?congress=16&q=SBN-2445 (last accessed: 07 June 2018).
 Otherwise known as “AN ACT PROHIBITING PREMATURE ELECTORAL CAMPAIGNING AND OTHER PARTISAN POLITICAL ACTIVITIES, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 8436, AS AMENDED, OTHERWISE KNOWN AS THE “AUTOMATED ELECTION SYSTEM LAW”, AND PROVIDING PENALTIES THEREFOR.”
 Entitled “AN ACT PROHIBITING PREMATURE ELECTORAL CAMPAIGNING AND OTHER PARTISAN POLITICAL ACTIVITIES, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 8436, AS AMENDED, OTHERWISE KNOWN AS THE “AUTOMATED ELECTION SYSTEM LAW”, AND PROVIDING PENALTIES THEREFOR.”
 Explanatory Note of House Bill No. 909.
 For example, see Section 2 of RA 9006, otherwise known as the “Fair Elections Act”, which reads:
Sec. 2. Declaration of Principles. – The State shall, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of media of communication or information to guarantee or ensure equal opportunity for public service, including access to media time and space, and the equitable right to reply, for public information campaigns and fora among candidates and assure free, orderly, honest. peaceful and credible elections.
 G.R. No. 205728, 21 January 2015.
 G.R. No. 122846, 20 January 2009.
 Chavez v. Gonzales, G.R. No. 168338, 15 February 2008.
 Spouses Romualdez v. COMELEC, G.R. No. 167011, 11 December 2008.
 Disini Jr. v. Secretary of Justice, G.R. No. 203335, 11 February 2014.
 Spouses Romualdez v. COMELEC, supra.
 G.R. No. L-27833, 18 April 1969.
 G.R. No. 162777, 31 August 31 2004. See also Explanatory Note of Senate Bill No. 2445, pp. 1-2.
 Entitled “RULES AND REGULATIONS IMPLEMENTING REPUBLIC ACT NO. 9006, OTHERWISE KNOWN AS THE “FAIR ELECTION ACT”, IN RELATION TO THE MAY 10, 2004 ELECTIONS AND SUBSEQUENT ELECTIONS.”