SC votes 8-7 on illegal-campaign case, Mayor Penera disqualified from holding office of Santa Monica

THE Supreme Court (SC), voting 8-7, has issued a decision declaring that Section 80 of the Omnibus Election Code, banning election campaign outside the campaign period, remains in effect despite implementation of Republic Act 9369, or the poll-automation law.

In a 34-page decision penned by Associate Justice Minita Chico-Nazario, the Court en banc upheld the ruling of the Commission on Elections (Comelec) finding Rosalinda Penera, disqualified from holding office as mayor of Santa Monica, Surigao del Norte, for violating the Omnibus Election Code last January 30, 2008.

The SC also lifted the temporary restraining order (TRO) it earlier issued enjoining the Comelec from implementing its resolution against Penera.

Concurring with Nazario’s ponencia were Associate Justices Consuelo Ynares-Santiago, Renato Corona, Antonio Eduardo Nachura, Teresita Leonardo-de Castro, Lucas Bersamin, Mariano del Castillo and Roberto Abad.

Dissenting magistrates were Chief Justice Reynato Puno, Justices Leonardo Quisumbing, Antonio Carpio, Conchita Carpio-Morales, Presbitero Velasco Jr., Arturo Brion and Diosdado Peralta.

They adopted the arguments raised by Carpio in his dissenting opinion.

The majority said, “Whether the election would be held under the manual or the automated system, the need for prohibiting premature campaigning—to level the playing field between the popular or rich candidates, on one hand, the lesser-known or poor candidates, on the other, by allowing them to campaign only within the same limited period —remains.”

The Court noted that based on the evidence, Penera violated Section 80 of the Omnibus Election Code when she engaged in a premature campaigning by holding a motorcade consisting of two jeepneys and 10 motorcycles after registering her candidacy with the Comelec.

The conduct of a motorcade, holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes for or against a candidate is a form of election  campaign which falls squarely within the ambit of Section 79 of the Omnibus Election Code.

“For violating Section 80 of the Omnibus Election Code, proscribing election campaign or partisan political activity outside the campaign period, Penera must be disqualified from holding the office of mayor of Sta. Monica,” the Court said.

The majority opinion also dismissed the claim of the dissenting opinion that Section 15 of RA 9369 provides a new definition of the term “candidate” as a result of which, Section 80 of the Omnibus Election Code is rendered unimplementable.

The Court explained that Section 79 (a) of the Ombinus Election Code defines a candidate as “any person aspiring for or seeing an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties.”

However, Section 15 of the poll-automation law states that a person who files a certificate of candidacy shall not be considered a candidate until the start of the campaign period.

Thus, the dissenting opinion argued that prior to the start of the campaign period, there can be no election campaign or partisan political activity designed to promote the election or defeat of a particular candidate to public office because there is no candidate to speak of.

The dissenting opinion further explained that even if Penera’s acts before the start of the campaign period constitute election campaigning or partisan political activities, these are not punishable under Section 80 of the Election Code, given that she was not yet a candidate at that time.

On the other hand, Penera’s acts, if committed within the campaign period, when she was already a candidate, are likewise not covered as this provision punishes only acts outside the campaign period.

The dissenting opinion concluded that because of Section 15 or Republic Act 9369, the prohibited act of premature campaigning in Section 80 of the Omnibus Election Code, is practically impossible to commit at any time.

Still, the majority decision insisted that Section 80 remains in effect as RA 9369 did not contain any provision repealing the former.

Furthermore, the SC said there is no conflict between Section 80 and Section 15 of RA 9369 as the two laws can be “reconciled and harmonized.”

“The dissenting opinion, therefore, should not be too quick to pronounce the ineffectiveness or repeal of Section 80 of the Omnibus Election Code just because of a change in the meaning of candidate by Section 15 of Republic Act 8436, as amended, primarily, for administrative purposes.”

In ruling for Penera’s disqualification, the SC declared vacant the mayoral position held by Perena and order that the proclaimed vice mayor should then succeed as mayor. (Joel R. San Juan, Reporter-BM)

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