People are irritated by posters and streamers of politicians proliferating in the streets of Metro Manila and in major cities around the country. Election is still ten months away. Considering that election campaigning is prohibited outside of the campaign period (which starts in February and March 2013) many believe that the posters, tarpaulin, and signages that we see at this early stage should be considered illegal.

What do Philippine laws say?

Section 5 of RA 7166 (which updated Section 3 of the Omnibus Election Code (OEC)) provides the specific campaign period for candidates. To those running for President, Vice-President, and in the Senate (as well as parties competing in the party-list system of representation), the campaign period is 90 days before election. All other candidates have 45 days before election to campaign.

On the other hand, it is Section 80 of the OEC that makes it unlawful for any person to campaign outside of the campaign period. Aside from imposing criminal sanctions to those violating Section 80, an erring candidate can also be disqualified from continuing as a candidate (Section 68 of the OEC).

Our election laws, however, have a technical definition of “election campaigning” From this we can infer whether a person is technically “campaigning” or not.

Section 79 (b) of the OEC defines election campaign as an act designed to promote the election or defeat of a “candidate.” A “candidate,” according to Section 79 (a) of the OEC, is one who has filed a certificate of candidacy (or COC), by himself or through a political party.

Thus, an act can only be considered as “election campaigning” when it is done to promote the election or defeat of one who has already filed his certificate of candidacy. This means that how ever one publicly extols the virtues of a person as most qualified for public office, if that person has yet to file his COC, the “campaigner” cannot as of yet be considered “campaigning.” In other words, no one can be punished for “prematurely campaigning” under Section 80 of the Election Code if the “campaign” is for someone who is not yet legally a candidate.

In previous elections when the voting and counting process was still principally manual, a COC may be filed at the appropriate office of  the COMELEC not later than one day before the start of the campaign period. In order to maximize their opportunity to campaign without being held to liable, candidates usually filed their COCs at the last hours of the last day.

When automated election was introduced by RA 8436 in 1997,  the deadline for filing COCs was advanced to “not later than 120 days before election”. It was initially believed that candidates who filed their COCs at the earlier deadline can be punished for premature campaigning if they “campaign” between the date of their COC filing and the start of the campaign period. But this amendment provided otherwise. Section 11 of the law states:

“….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, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period…

Thus, even if the COCs are filed way before the campaign period, candidates, even if they campaign (in a layman’s sense), will not be liable for violating the laws on campaigning until the start of the campaign period. It would only be then that “unlawful acts or omissions applicable to candidates shall take effect.

The Supreme Court had the opportunity to interpret this law in the case of Lanot vs. COMELEC (November 2006). In this case involving the mayoral contest for Pasig in the 2004 election, the Supreme Court, interpreting Section 11 of RA 8436, declared that to be a candidate, a person must have filed a COC and that the campaign period has already started. Thus, even if a person has already filed his COC, he or she technically cannot be considered a “candidate” until the start of the campaign period. He cannot therefore be held liable for any act of “campaigning” prior to the start of the campaign period.

In 2007, Republic Act 9369, the latest Automated Election Law, was passed. Section 11 of 8436 was modified by Section 13 of RA 9369, which reads:

….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 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 that start of the aforesaid campaign period.

Not only did the amendatory law reiterate the exception in RA 8436, it even incorporated the Lanot interpretation by stressing all the more that a person can  be considered as a candidate ONLY when the campaign period starts.

The Supreme Court again was presented with another case involving this issue. In Penera vs. COMELEC (September 2009), the Supreme Court initially ruled to reverse the Lanot doctrine and declared that a candidate who files his or her COC may be disqualified for campaigning before the campaign period. However, in a resolution on a motion for reconsideration against the first Penera decision, the Supreme Court, in November 2009, reversed itself and reinstated the Lanot doctrine. This is the current state of the law on the matter.

Should we then just accept these irritating campaign propaganda? We can actually do something about them.

As sovereigns we can express our frustration and irritation by calling public attention and raising awareness to the erring politicians’ palusots. The shame campaign by a newly organized Anti-Epal Coalition is one such effective effort. Displays were actually removed by those who put them up after the epals have been ridiculed by citizens.

Politicians can also be asked about where they got the money, or why they are spending so much of their own money, to pay for those expensive ads. Incumbents who engage in “premature campaigning” have to show that no public funds was spent for the “epal” ads.

Next, is to campaign for the amendment of these useless laws. It is obvious that the lawmakers themselves expressly intended to exempt premature campaigning candidates from liability. The lawmakers deliberately placed the glaring loophole in the law.

It is unfortunate that COMELEC most of the time gets the bulk of the blame for failing to enforce the laws. Even the Supreme Court was criticized for its interpretation of the laws in the Lanot and Penera decisions.  But the problem are the laws themselves, and by necessary implication, the lawmakers who drafted these laws. Members of Congress who choose to ignore and maintain this irritating state of affair by refusing to enact better laws must also be also be held to account.

If taxpayers and citizens are to bark, it has to be at those who are truly responsible – those who benefit from the way things are, those who take advantage of the loopholes in the law. I guess everyone knows who these people are.