G.R. No.

181613

November 25, 2009

ROSALINDA A. PENERA vs. COMMISSION ON ELECTIONS and EDGAR T. ANDANAR

FACTS:
Petitioner Rosalinda Penera and respondent Edgar Andanar ran for mayor of Sta. Monica, Surigao
Del Norte, during the May 14, 2007 elections.
On March 29, 2007 a motorcade by petitioner Peneras political party preceded the filing of her
certificate of candidacy before the Municipal Election Officer of Sta. Monica. Because of this, on April
2, 2007 Andanar filed with the Regional Election Director for Region 13 in SPA 07-224 a petition to
disqualify1 Penera, among others,2for engaging in election campaign before the start of the campaign
period.
Andanar claimed that Penera and her partymates went around Sta. Monica on March 29,
announcing their candidacies and asking the people to vote for them in the coming elections.
Answering the petition, Penera claimed that although a motorcade preceded the filing of her
certificate of candidacy, she merely observed the usual practice of holding a motorcade on such
momentous occasion, but which celebration ended soon after she filed her certificate. Penera
claimed that no one made a speech during the event. All they had were lively background music and
"a grand standing for the purpose of raising the hands of the candidates in the motorcade."
The parties presented their position papers and other evidence in the case. 3 Afterwards, the regional
office forwarded its record to the Commission on Elections (COMELEC) in Manila where the case
was raffled to the Second Division for resolution. But the elections of May 14, 2007 overtook it, with
petitioner Penera winning the election for Mayor of Sta. Monica. She assumed office on July 2, 2007.
On July 24, 2007 the COMELECs Second Division issued a resolution, disqualifying petitioner
Penera from continuing as a mayoralty candidate in Sta. Monica on the ground that she engaged in
premature campaigning in violation of Sections 80 and 68 of the Omnibus Election Code. The
Second Division found that she, her partymates, and a bevy of supporters held a motorcade of two
trucks and numerous motorcycles laden with balloons, banners, and posters that showed the names
of their candidates and the positions they sought. One of the trucks had a public speaker that
announced Peneras candidacy for mayor.
Petitioner Penera filed before the COMELEC en banc a motion for reconsideration 4 of the Second
Divisions July 24, 2007 resolution. The En Banc denied her motion on January 30, 2008. 5 Still
undeterred, Penera came up to this Court. On September 11, 2009 an almost evenly divided Court
affirmed the ruling of the COMELEC.
Hence, this Motion for Reconsideration.
ISSUE:
Whether or not petitioner Peneras act of campaigning for votes immediately preceding the filing of
her certificate of candidacy on March 29, 2007 violates the prohibition in Section 80 of the Omnibus
Election Code against premature campaigning, with the result that she is disqualified from holding
office in accordance with Section 68 of the Code.

HELD:
We grant Rosalinda A. Peneras (Penera) motion for reconsideration of this Courts Decision of 11
September 2009 (Decision).
Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person aspiring for or
seeking an elective public office, who has filed a certificate of candidacy x x x." The second
sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides
that "[a]ny person who files his certificate of candidacy within [the period for filing] shall only be

considered as a candidate at the start of the campaign period for which he filed his certificate of
candidacy." The immediately succeeding proviso in the same third paragraph states that "unlawful
acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid
campaign period." These two provisions determine the resolution of this case.
lawphil

The assailed Decision is contrary to the clear intent and letter of the law.
The Decision reverses Lanot v. COMELEC, 2 which held that a person who files a certificate of
candidacy is not a candidate until the start of the campaign period. In Lanot, this
Court explained:
Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a
person engages in an election campaign or partisan political activity; (2) the act is designed to
promote the election or defeat of a particular candidate or candidates; (3) the act is done outside the
campaign period.
The second element requires the existence of a "candidate." Under Section 79(a), a candidate is
one who "has filed a certificate of candidacy" to an elective public office. Unless one has filed his
certificate of candidacy, he is not a "candidate." The third element requires that the campaign period
has not started when the election campaign or partisan political activity is committed.
Assuming that all candidates to a public office file their certificates of candidacy on the last day,
which under Section 75 of the Omnibus Election Code is the day before the start of the campaign
period, then no one can be prosecuted for violation of Section 80 for acts done prior to such last day.
Before such last day, there is no "particular candidate or candidates" to campaign for or against. On
the day immediately after the last day of filing, the campaign period starts and Section 80 ceases to
apply since Section 80 covers only acts done "outside" the campaign period.
Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to
acts done on such last day, which is before the start of the campaign period and after at least one
candidate has filed his certificate of candidacy. This is perhaps the reason why those running for
elective public office usually file their certificates of candidacy on the last day or close to the last day.
The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera
filed her certificate of candidacy on 29 March 2007. Penera was thus a candidate on 29 March 2009
only for purposes of printing the ballots. On 29 March 2007, the law still did not consider Penera a
candidate for purposes other than the printing of ballots. Acts committed by Penera prior to 30 March
2007, the date when she became a "candidate," even if constituting election campaigning or partisan
political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts are
within the realm of a citizens protected freedom of expression. Acts committed by Penera within the
campaign period are not covered by Section 80 as Section 80 punishes only acts outside the
campaign period.5
The assailed Decision gives a specious reason in explaining away the first proviso in the third
paragraph, the amended Section 15 of RA 8436 that election offenses applicable to candidates take
effect only upon the start of the campaign period. The Decision states that:
x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that "any
unlawful act or omission applicable to a candidate shall take effect only upon the start of the
campaign period," does not mean that the acts constituting premature campaigning can only be
committed, for which the offender may be disqualified, during the campaign period. Contrary to the
pronouncement in the dissent, nowhere in said proviso was it stated that campaigning before the
start of the campaign period is lawful, such that the offender may freely carry out the same with
impunity.
As previously established, a person, after filing his/her COC but prior to his/her becoming a
candidate (thus, prior to the start of the campaign period), can already commit the acts described
under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity,
However, only after said person officially becomes a candidate, at the beginning of the campaign
period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus
Election Code. Only after said person officially becomes a candidate, at the start of the campaign
period, can his/her disqualification be sought for acts constituting premature campaigning.

Obviously, it is only at the start of the campaign period, when the person officially becomes a
candidate, that the undue and iniquitous advantages of his/her prior acts, constituting premature
campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only about
to begin their election campaign, a candidate who had previously engaged in premature
campaigning already enjoys an unfair headstart in promoting his/her candidacy. 6 (Emphasis
supplied)
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 laymans 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.
Congress has laid down the law a candidate is liable for election offenses only upon the start of
the campaign period. This Court has no power to ignore the clear and express mandate of the law
that "any person who files his certificate of candidacy within [the filing] period shall only be
considered a candidate at the start of the campaign period for which he filed his certificate of
candidacy." Neither can this Court turn a blind eye to the express and clear language of the law that
"any unlawful act or omission applicable to a candidate shall take effect only upon the start of the
campaign period."
The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court
but the Legislature. This Court has no recourse but to apply a law that is as clear, concise and
express as the second sentence, and its immediately succeeding proviso, as written in the third
paragraph of Section 15 of RA 8436, as amended by RA 9369.
MOTION FOR RECONSIDERATION is GRANTED. DECISION promulgated on 11 September 2009
is SET ASIDE.