Lost in a loophole: The legality of premature campaigning in the current election law

ELECTION FEVER has spread months before the official filing of  certificates of candidacy (COCs) from October 1 to 8. Eight months prior, posters and tarpaulins bearing political faces and slogans have flooded ad spaces anywhere available. As early as August, political aspirants had already purchased primetime blocks for their campaign ads. And, media have given incumbents and other public figures coverage to boost their prospects way ahead of the campaign period.

Several politicians declared themselves as running for office in the week before the COC deadline. Each announcement was duly covered, following by  interviews and other features, not just in print and broadcast media but also on  social media.

These activities are made for media, and the exposure plays a significant role in building up name recall. Unfortunately, this top-of-the-mind factor rules the choice of many  who do not realize that voting requires more thought. But the law does not consider such publicity as premature campaigning. 

Premature campaigning has been non-existent as a legal offense for more than twenty years since the poll automation law was signed on December 27, 1997, and amended on January 23, 2007. The Supreme Court (SC) in a 2009 decision upheld its legality when it overturned a Commission on Elections (Comelec) decision to disqualify a Mindanao mayor for campaigning before the official campaign period. 

What the law says?

Section 80 of the Omnibus Election Code, considers all campaigns or partisan political activities outside the campaign period “unlawful.” But provisions in the same code create a legal loophole.

The code defines a “candidate” as “any person aspiring for or seeking an elective public office, who has filed a COC.” But Section 15 of the Republic Act (RA) 8436, as amended by Section 13 of RA 9369, states that “any person who files his COC shall only be considered as a candidate at the start of the campaign period…” The campaign period only starts 90 days before the scheduled elections. The RA 9369 also states that, “unlawful acts or omissions applicable to a candidate shall take effect ONLY upon the start of the aforesaid campaign period.” The code makes it impossible for any politician to be charged with premature campaigning. 

The Peñera vs. Comelec was a highly controversial landmark case against premature campaigning. 

In 2007, the Comelec disqualified Rosalinda Peñera, who won as Mayor of Santa Monica in Surigao del Norte, for violation of the election code when she participated in a motorcade before the campaign period. The Comelec noted in its decision that any candidate who has filed a COC may be liable for the charge of premature campaigning before the campaign period and could be disqualified.

Peñera appealed to the SC, arguing that by law, she was not considered a candidate at the time of the motorcade. The SC ultimately granted Peñera’s petition in 2009, reversed the previous decision, and reinstated her as mayor.

Closing the loophole

The technical elimination of premature campaigning or what used to be described as “electioneering” gives  those with huge campaign funds and incumbents an advantage over those with less resources but who may be more deserving. 

Previous attempts to fix the law have all failed.

In 2012, the late Senator Mirriam Defensor Santiago filed Senate Bill 3305, which requires all political aspirants to file Certificate of Intention to Run for Public Office (CIRPO) 180 days preceding the deadline for the filing of the COC. The bill prohibits any person who has filed a CIRPO to endorse a product, appear on an infomercial, accept employment in any media outfit, and buy ad space prior to the campaign period.

The law was still pending at the committee level by October 16, 2012.

In 2018, Senators Aquilino Pimentel III, Leila de Lima and Richard Gordon filed Senate Bill 2064 to amend the law and penalize premature campaigning. The bill re-worded the problematic provision in RA 8436  that “a person shall be considered a candidate at the moment that person filed a COC, “  and that, “unlawful acts or omission applicable to a candidate shall take effect upon the filing of the COC.”

The Comelec during that time appealed to lawmakers for the immediate passage of the bill especially with the 2019 mid-term election approaching. 

The bill was approved by the Senate on October 9, 2018 and was set for a second reading on November 21 the same year. But it was already dead and buried in uncertainty by the end of the 17th congress. 

There have been no updates on either bill. CMFR could not find any information about any legislator re-filing them or drafting new ones for the same ends. 

Changes in the law can level the playing field for political aspirants. Amendments will also diminish the advantages enjoyed by incumbents who can openly use their positions, even public resources, to enhance their political careers.

But with the existing election law, Filipinos must continue to bear the confounding situation. After an election, voters forget about the need to change the law, and no group or non-government organization undertakes this advocacy. 

The media can help by reporting the context of the loophole as well as to recall attempts to close it. It can flag the abuse of public office for purposes of “electioneering.” In the next four months until the official campaign period begins, media should not yield airtime, online or print space to partisan pre-campaign ploys. The media should educate the public and remind voters that voting is a paramount expression of their sovereign will that they cannot afford to waste.

Covering the Elections 2022

MEDIA NEED to review whether their reports can help voters discern whether a candidate deserves their vote— what qualities and values make a good leader. How can their reports educate voters to recognize the woman or man who will use public office to serve the people?  

News conventions — prominence, immediacy or timeliness, widespread interest or out-of-ordinary angles — rule the standard campaign coverage. After all, reporters already know who are already well-known and are probably followed by the public. Conventional coverage favors those already in power who have been in the news and who have become more prominent in recent years. But should journalists simply follow these news leads? Can the news change? 

By the conventional rule book, anything that goes on in the campaign is newsworthy. So political gimmicks, pictorial values, and the like are drawn from the campaign caravan. , But journalists should realize that just following the campaign trail submits to the campaign managers’ self-serving agenda. The fixed attention on the campaign commits a news organization to provide publicity to whatever is crafted by campaign handlers for their candidates. 

News practice is drawn to personalities as this is easier to do rather than explore issues and expose the stand of the candidates. But focusing on political personalities engages voters only on one level. The record of performance will surely show character, competence and common sense. It may be time for the media to focus on issues and experience rather than political personalities. 

Finally, elections should be about the people and their needs. They are after all the ones who will decide. It is the public that makes the choice. And what they aspire for in their lives should gain more media attention. 

The latter is one of the provisos in the 2022 Election Pledge drafted by an informal coalition of  ‘Wag Kukurap. As of press time, the pledge had been  signed by more than 500 journalists from different media organizations in the country. The same pledge lists several commitments from the media affirming that credible elections need credible media, among others. See the pledge here.