Comelec restrictions apply only during 45-day campaign period

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Wednesday, September 5, 2012


Atty. Pachico Seares
Seven Questions

‘Hello, Casti?’

In June 2005, the scandal erupted over the Garci tapes, in which then Comelec commissioner Virgilio Garcillano allegedly received instructions from then president Gloria Macapagal-Arroyo to rig the 2004 elections for her party Lakas-Kampi-CMD candidates.

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Cebu Provincial Election Supervisor Lionel Marco Castillano has, as you must notice, a surname that rhymes with Garcillano. Quickly, colleagues and friends nicknamed him “Casti,” instead of Marco or Lionel.

“Casti” hasn’t been involved in a similar scandal but often he stands out as a news figure, when politicians clash over perceived irregularities during elections or when he is asked by the press to explain a confusion over election laws or Comelec regulations.

1. Tell us if we in the media got it right: a) Politicians who plan to run for elective positions next year can do the acts prohibited by the Fair Election of 2001.

The reason is they’re not yet candidates; b) When they file their COCs or certificates of candidacy this coming October (1 to 5), they’re not yet considered candidates and they can still do any of the so-called prohibited acts. So when will the prohibited acts finally apply?

By prohibited acts, you must be referring to partisan political activities before the campaign period or any of the unlawful acts or omissions under the Fair Election Act of 2001. They’re not prohibited, according to the Supreme Court in Peñera vs. Comelec and Andanar (GR#181613), even after they file their COCs. COC filers are not yet considered candidates. Under the said ruling (promulgated in 2009 and thus applied to the 2010 elections), one who filed his COC is considered a candidate only during the election period, which starts 45 days before election day. Yes, they can still do the “prohibited acts” even after filing COCs.

No, they’re still not considered candidates by then. They’re deemed candidates only when the campaign period starts.

2. In sum, the politicians are still not considered candidates though they filed their COCs. They can engage in political activity before the COC-filing period and even after they have filed COCs but before the campaign period starts. Only then will they be considered candidates and only then will they be prohibited from doing those acts. What underlies the Supreme Court ruling? Does that uphold the intent of Congress on fair elections?

The Supreme Court in that Peñera case said that anything the politician or his supporters say or do is allowed under the principle of freedom of expression, subject of course to the limits of laws other than the election law.

Is that fair? It equalizes the playing field in the sense that every aspirant is free to engage in political activity before and after filing of COCs and everyone is restricted only when the campaign period starts.

It allows the aspirants more time to make themselves and their platforms known to the voters.

Also, it gives, through the early-COCs deadline, enough time for Comelec to print ballots which under poll automation must bear the names of candidates.

3. One downside is that it actually expands the campaign period: from 45 days to several months more. Nine to 10 months before election day, political rivals are already campaigning and most of the time without the election rules on fairness.

It’s expensive and divisive as it lends political color to programs and projects, nay, every government activity. Besides on COCs, you can have an early deadline for printing requirements and yet curb early campaigning. The Supreme Court doesn’t seem to consider it political activity but as part of the individual’s right of free expression. The COC-filing makes him a candidate only for the purpose of meeting the ballot-printing deadline. I agree that during most of the time that would-be candidates and candidates spend for campaigning, the Fair Election Act doesn’t apply.

4. Comelec officers merely enforce the law. It’s Congress that lays down the law but it’s Supreme Court that interprets the law. I won’t ask if you think the High Tribunal has gone beyond interpreting to engage in legislating, or whether the ruling will make you better election law enforcers since the task of overseeing the campaign is limited to that 45-day period. But can you enforce the rules in 2013, which Comelec had failed to do in the past elections?

Comelec is undermanned but it is not its job alone to catch and prosecute election law violators. During the election period, the Philippine National Police and other agencies that keep peace and order and the prosecutors who file the charges in court are deputized to enforce election laws. Citizens who have personal knowledge of violations need to come out as witnesses without whom the charges will fall. I must emphasize that the conduct of honest, orderly, and peaceful elections depends on all of us. Success or failure of elections helps define our future as a nation.

5. Incumbent public officials seeking election or reelection enjoy the advantage of having funds at their disposal. Often they use the funds purportedly for public service and yet are clearly aimed to win votes. How can the apparent disadvantage to newcomers be reduced? Or is Comelec helpless in that regard?

Although many people may see it as clear electioneering. as long as the spending is justified under the category of public services, it’s difficult to hold the incumbent “big spender” liable. The rival candidate, however, can point out the thin disguise between genuine public service and a blitz to “buy” votes. It may not be a legal dispute but a p.r. battle. Unfortunately, the Comelec can do little about it: it can only ask complainants to go to COA or the ombudsman to determine the validity of the spending.

6. What amendments on the Fair Election Act can you recommend through Comelec’s commissioners?

Since campaigning before the filing of COCs and before the election period is allowed under the Pe¤era ruling, there’s no more “premature” campaigning. The restrictions apply only during the 45-day campaign period (for local candidates).

As to use of public funds by would-be candidates, there are enough laws to prosecute violators. Or, short of haling them to court, a vigilant public can expose the real purpose in the use public funds. It’s public money after all.

7. Are there still doubts about reverting to manual counting in 2013?

Next year’s elections will be automated, as mandated by law. There are always skeptics but Comelec has met and will meet the challenges to its capacity to conduct fair, free, and honest elections.

Published in the Sun.Star Cebu newspaper on September 05, 2012.

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