Second of Two Parts

MANILA - The gods of Padre Faura may have spoken, but theirs is not the last word.

Veteran election lawyers told abs-cbnnews.com/Newsbreak in separate interviews that the Supreme Court's recent ruling on premature campaigning, which could possibly lead to a deluge of disqualification cases against candidates running in the May 2010 polls, is not binding.

It is, they added, an obiter dictum, or an opinion that is not essential to the decision.

Lawyers Sixto Brillantes and Romulo Macalintal, whose clients are on opposite fences, said the Tribunal tackled the poll automation law when it was not the issue in the first place.

Brillantes said both the minority and the majority committed a “mistake” when they devoted a major portion of their opinions on the implication of the automation law in the election process.

He said the disqualification of Sta. Monica (Surigao del Norte) Mayor Rosalinda Penera was a simple case of an infraction of Section 80 of the Omnibus Election Code.

“They discussed the automation law in the decision when it was manual count that was implemented in the 2007 polls,” Brillantes said. “There was no point in discussing Republic Act 9369 (poll automation law) in the majority and dissenting opinions. They could have simply discussed if Sec. 80 of the election code was violated.”

He said the High Court “overextended its decision, applying interpretation beyond the case.”

Penera was ordered disqualified by the SC after the local official was found to have engaged in premature campaigning before the official campaign period began in the 2007 mid-term polls.

In that ruling, the justices debated whether Republic Act (RA) 9369 repealed Section 80 of the Omnibus Election Code that prohibits campaigning and other partisan activity outside of the campaign period.

The minority said RA 9369 had repealed Section 80 of the Omnibus Election Code when it stated that an individual shall only be considered “as a candidate at the start of the campaign period.” In the Lanot versus Comelec case, the Tribunal said that one of the requisites for violation of Section 80 of the election code is the existence of a candidate.

Since an individual is only considered a candidate at the start of the campaign, this essentially renders the provision against premature campaigning inutile. However, the majority of the justices said the provision on premature campaigning starts when the individual files his/her certificate of candidacy (COC).

In the case of the May 2010 polls, the Comelec has set an early deadline--November 30, 2009 --for the filing of COCs. The campaign period for national posts starts on February 9, 2010, while the period for local posts starts on March 26, 2010.

Based on the SC ruling, no campaign ads, no paraphernalia, no form, either directly or indirectly, of activity that could be interpreted, as partisan should be engaged into by the candidates from December 1, 2009 to February 8, 2010 for national posts, and for local posts, until March 25, 2010.

Deluge of disqualification complaints

Brillantes said the majority decision, which penalizes campaigning from December 1 until the official campaign period, punishes candidates for complying with the early deadline of the Comelec.

“It means they cannot campaign yet from December 1, even after they have filed their COCs. This goes against the very essence of a candidate,” he said.

Macalintal said from December 1 to the start of the campaign period, “candidates could not go out in public, discuss their policies and programs, shake hands with people for fear this could constitute premature campaigning.”

He added: “And what would prevent candidates from launching dirty operations against their rivals in order to disqualify them? There is a wide period of time to pull off their operations.”

A poll operator earlier interviewed by abs-cbnews.com/Newsbreak said that one of the smear drives that strategists could consider is to plant “evidence” against the rival candidate. One only has to tap pseudo-supporters of a candidate and let them engage in partisan activity in order to have grounds to disqualify that candidate, the poll operator said.

Macalintal agreed with Brillantes that what the SC ruled on premature campaigning, as related to the automation law “is only a side comment.”

Brillantes said the justices “got confused” when they mixed the automation law and the automation process for the May 2010 elections with the Penera case, which was manual count.

He said there is no argument that RA 9369 did not repeal Section 80 of the Omnibus Election Code since the provision applied to a manual system. “But since the elections for May is being automated, then RA 9369 should apply.”

Media’s delicate balance

Macalintal said there is a need for “a deeper study of the SC of its ruling” to avoid potentially “bad implications.”

One, he said, is the need for voters to know their candidates, and the Court’s ruling defeats this.

The media would also have to observe a delicate balancing act from December 1 to the campaign period to avoid being accused of engaging in partisan political activity, and therefore a party to premature campaigning.

Macalintal, whose clients mainly are from the administration, cited Section 79 (a) of the Election Code that defines campaigning to include “making commentaries or holding interviews for or against the election of any candidate.”

He also referred to Section 6.4 of RA 9006, or the Fair Elections Act of 2001, which says that broadcast entities should not allow program manifestly in favor or oppose to any candidate, although the right to air news is to be respected.

Macalintal said the media, during this the intervening period, is vulnerable to allegations that it is engaging in premature campaigning “in the guise of news reporting.”

He said the media “would have to be circumspect in dealing with the candidates” from November 30, the deadline for the filing of COCs, to the start of the campaign period.

Macalintal said legislators may have foreseen the implications of the long period in the COC deadline to the start of the campaign, which could explain why they had to state that an individual only becomes a candidate at the start of the campaign period.

Changes in SC

Another election lawyer, Jorge Garcia, said the close 8-7 vote is not yet final since Penera is expected to file a motion for reconsideration. Garcia said the voting could still shift in favor of the minority.

He noted that one of the justices who joined the majority, Justice Consuelo Ynares-Santiago, is set to retire on Oct. 5. “There is the factor of a new SC member coming in. The votes might be the same or could change.” - By Aries Rufo, abs-cbnNEWS.com/Newsbreak

Read Part 1: Chaos seen in SC ruling on premature campaigning