RULES AND REGULATIONS IMPLEMENTING REPUBLIC ACT NO. 9006, OTHERWISE KNOWN AS THE “FAIR ELECTION PRACTICES ACT”, IN RELATION TO THE MAY 10, 2010 SYNCHRONIZED NATIONAL AND LOCAL ELECTIONS, AND SUBSEQUENT ELECTIONS.
I wish to be clarified on Section 29 of the COMELEC Resolution No. 8758 in relation to the decision of the Supreme Court in Penera vs. COMELEC (G.R. No. 181613).
Section 29 provides:
“Removal of Campaign Materials. – All materials such as posters, streamers, stickers or paintings on walls and other materials showing the picture, image or name of a person, and all advertisements on print, in radio or on television showing the image or mentioning the name of a candidate, made or done in violation of election laws prior to the campaign period shall be immediately removed by said candidate
and radio station, print media or television station within 3 days after the effectivity of these implementing rules and the start of the campaign period;
otherwise, he and said radio station, print media or television station shall be presumed to have committed the pertinent election offense during said campaign period for national candidates or for local candidates as the case may be.”
In the SC decision, it said:
“It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is specially true to expression or speech, which Congress cannot outlaw except on very narrow grounds involving clear, present and imminent danger to the State. The mere fact that the law does not declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need for Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political partisan activities before the start of the campaign period are lawful. It is sufficient for Congress to state that “any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period.” The only inescapable and logical result is that the same acts, if done before the start of the campaign period, are lawful.
In layman’s language, this means that a candidate is liable for an election offense only for acts done during the campaign period, not before. The law is clear as daylight — any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. In ruling that Penera is liable for premature campaigning for partisan political acts before the start of the campaigning, the assailed Decision ignores the clear and express provision of the law.
The Decision rationalizes that a candidate who commits premature campaigning can be disqualified or prosecuted only after the start of the campaign period. This is not what the law says. What the law says is “any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period.” The plain meaning of this provision is that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period, the same partisan political acts are lawful.
The law does not state, as the assailed Decision asserts, that partisan political acts done by a candidate before the campaign period are unlawful, but may be prosecuted only upon the start of the campaign period. Neither does the law state that partisan political acts done by a candidate before the campaign period are temporarily lawful, but becomes unlawful upon the start of the campaign period. This is clearly not the language of the law. Besides, such a law as envisioned in the Decision, which defines a criminal act and curtails freedom of expression and speech, would be void for vagueness.”
Considering the pronouncement of the Supreme Court on the issue of premature campaigning, it would seem that Section 29 of COMELEC Resolution 8758, which prohibits the use of campaign materials outside or prior to the start of the campaign period, goes against what the Supreme Court promulgated.
We wish to be clarified on this issue. Thank you.
I agree with you on your observations relative to the decision of the Supreme Curt in the case of Penera vs. COMELEC (G.R. No. 181613). I would like to state my opinion here on Sec. 29 of Comelec Reso 8758. I believe the portion which states …”shall be removed by said candidate….. within 3 days after the effectivity of these implementing rules” pertains to National candidates because their campaign period started on Feb. 9. Comelec Reso 8758 was promulgated on Feb. 4, 2010 and took effect on the 7th day after its publication in two (2) newspapers of general circulation. So the national candidates were given 3days from Feb 12 or thereabout, within which to remove their unlawful campaign materials. As to the portion “shall be removed by said candidate….”within 3 days….. from the start of the campaign period” pertains to local candidates. Their campaign period will start on Mar 26, hence, they have until March 29 to remove their unlawful campaign materials.
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